IN THE CASE OF:	  

		BOARD DATE:	    16 August 2012

		DOCKET NUMBER:  AR20110022988 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests the records of her deceased husband, a former service member (FSM), be corrected as follows:

* reinstating him on active duty
* paying him all pack pay and allowances from 23 October 2008 through 27 August 2010
* showing his family is entitled to receive all benefits afforded a Soldier who dies on active duty

2.  The applicant states:

* the FSM served on active duty from 1 January 2007 through 23 October 2008 (about 22 months) with a few weeks break
* he had moles removed and a biopsy for skin cancer while on active duty
* he was informed that the biopsy reports would be available soon after his release from active duty
* the report was lost and within 1 year he went from having moles to having stage 4 cancer
* the Department of Veterans Affairs (VA) granted him service connected compensation at the 100 percent (%) rate
* the FSM has four children who have no medical benefits




3.  The applicant provides:

* Marriage certificate
* FSM's death certificate
* Letter from The Adjutant General (TAG), Oklahoma Army National Guard (OKARNG)
* DD Forms 214 (Certificate of Release or Discharge from Active Duty) for the periods ending 20 April 2007, 18 October 2007, and 23 October 2008
* VA Medical records 

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 8 February 1973.  He married the applicant on 18 December 1999.

2.  The FSM enlisted in the OKARNG on 14 July 2006.  He entered active duty for training (ADT) on 2 January 2007, completed training, and was awarded military occupational specialty 21B (Combat Engineer).  He was released from ADT on 20 April 2007.

3.  On 22 May 2007, he was ordered to active duty, in an active duty special work status, in support of pre-mobilization.  He was honorably released from active duty (REFRAD) on 18 October 2007.

4.  On 23 October 2007, he was ordered to active duty in support of Operation Iraqi Freedom not to exceed 23 October 2008 and he subsequently served in Iraq, with Company B, 1st Battalion, 180th Infantry, from 28 January to 7 October 2008.  

5.  In September 2008, less than three weeks prior to redeployment, the FSM had 4 skin lesions shaved at the troop medical clinic (TMC) at Camp Bucca, Iraq. The reason for the shave “biopsies” was that the lesions were painful at times when wearing military gear.  The TMC physician noted that the lesion beneath the right breast looked dysplastic (pre-cancerous).  No lesions were shaved from the FSM’s left neck or anywhere else on the left side of his body.  The specimens were sent to Baghdad where a U.S. Army pathologist read them and reported the results on 9 October 2008.  One was a skin tag and the other three were common moles.  There was no cancer or dysplasia.  The TMC physician made arrangements to email the results to the FSM and recorded his email address in the electronic record system.

6.  On his post-deployment health questionnaire, the FSM mentioned the biopsies but did give any symptoms of systemic illness or any other condition that affected the performance of his duties.

7.  He was honorably REFRAD and transferred to State control on 23 October 2008 in accordance with chapter 4 of Army Regulation 635-200 (Enlisted Administrative Separations) by reason of completion of required active service.  He was assigned to Company A, 45th Brigade Support Troop Battalion, Bristow, OK.

8.  Subsequent to his release from active duty, the FSM continued to drill with his unit and he was promoted to sergeant (SGT)/E-5 on 27 July 2010.  His National Guard Bureau (NGB) Form 23B (ARNG Current Annual Statement) shows the following activity (after release from active duty):

From
To
Status
Inactive
Points
Active Points
Member
ship
Qualifying For Retirement
Total Points
20080714
20081023
ARNG

102



20081024
20090713
ARNG
22
6
15
01
145
20090714
20100713
ARNG
29
88
15
01 
132
20100714

ARNG
4




9.  On 15 June 2010, the OKARNG reconstructed a DA Form 2173 (Statement of Medical Examination and Duty Status) pertaining to the FSM.  This form shows the FSM was seen in an outpatient status on 19 September 2008, at Camp Bucca, Iraq, for malignant melanoma of the trunk, face, neck, and scalp.  The form also states that while on leave from Iraq, the FSM's wife noticed that one of his moles was growing.  Upon return to Iraq, he went to the troop medical clinic (TMC) and had them removed.  According to the DA Form 2173, the TMC sent some off for testing and there are no results. 

10.  On 25 June 2010, the OKARNG reconstructed a DD Form 261 (Report of Investigation - Line of Duty (LOD) and Misconduct Status).  This form shows that while on leave from Iraq, the FSM's wife noticed that one of his moles was growing.  Upon return to Iraq, he went to the TMC and had them removed.  The DD Form 261 also states the TMC sent some off for testing and there are no results.  The investigating officer noted that the disease was in line of duty.  The appointing and reviewing authorities concurred with the finding on 21 July 2010.  An official approved the finding on behalf of the Chief, National Guard Bureau "In Line of Duty for malignant melanoma of the trunk, face, neck, and scalp."  

11.  On 27 August 2010, the FSM died.  The death certificate listed the immediate cause of death as "acute coronary syndrome" and the sequential condition leading to the cause of death as "malignant melanoma."
12.  The FSM's complete service medical records are not available for review with this case.  However, the applicant provides selected service medical records, VA medical records, and other documents as follows:

	a.  A memorandum, dated 7 October 2011, from TAG, OKARNG, wherein he states the FSM was under his command in Iraq and that he had been to the doctor many times prior to his release from active duty.  He had moles removed and a biopsy done.  The report was to be furnished to him after release from active duty.  The report was lost and within a year, he was diagnosed with stage 4 cancer.  The VA rated him 100% disabled due to a duty-related disability.  He served approximately 22 months on active duty.  Once the biopsy was done, he should have been held over at the Warrior Transition Unit.  He should not have been allowed to be released from active duty with the medical condition still needing treatment. 

	b.  Service medical records during his deployment to Iraq.  One document, dated 19 September 2008, shows he complained of several painful moles to his head, face, and lower back, and he indicated that he would like them removed. 

	c.  Various VA medical records dated between January and May 2010.  The FSM reported for a VA radiation oncology consult wherein he discussed post operative radiation for recently-diagnosed melanoma of the left neck.  He stated that he developed an ulcerative lesion on his left neck within the past 6 months.  He underwent modified radical neck dissection on 11 March 2010.

13.  According to the Department of the Army WTU Consolidated Guidance, 

	a.  The Medical Retention Program (MRP) is designed to compassionately evaluate and treat the Reserve Component (RC) Warriors in Transition (WT) with an "in the line of duty" incurred illness, injury, disease or an aggravated pre-existing medical condition which prevent them from performing the duties required by their MOS and/or position and to, as soon as possible, return Soldiers back to duty within their respective RC.  If a return to duty is not possible, then the WT should be processed through the Army Physical Disability Evaluation System (PDES).  This program applies to outpatient and in-patient WT currently on active duty mobilized under Title 10, U.S. Code (USC), section 12302 partial mobilization orders for operations in support of the Global War on Terrorism (GWOT).  Soldiers on active duty in support of GWOT under another authority will be handled on a case-by-case basis.  When a Soldier is not 

expected to RTD (return to Duty) within 60 days from time of injury or illness, or, if the Soldier could RTD within 60 days, but will have fewer than 120 days left on his current mobilization orders.  The decision for WTU assignment will be made by Triad (Nurse Case Manager, Primary Care Manager and Squad Leader) in conjunction with the Soldier and orders will be produced by HRC. 

	b.  Another program, the MRP2, is designed to voluntarily return Soldiers back to temporary active duty, to evaluate or treat RC WT with unresolved mobilization connected medical condition that either was not identified or did not reach optimal medical benefit prior to their REFRAD.  This program applies to WT previously REFRAD while mobilized under 10 USC 12302 partial mobilization orders for operations in support of the GWOT. Soldiers previously on active duty orders in support of GWOT under another authority will be handled on a case-by-case basis. Soldiers on active duty orders not in support of GWOT might be eligible for Active Duty Medical Extension. A Medical Review Board (MRB) must determine that the Soldier is eligible for MRP2.  A Soldier is eligible with an LOD "yes" documenting unresolved medical issues, and a completed application submitted through the current chain of command. The RC Soldier has six months from the date of REFRAD to submit his application.  The Soldier must still be a member of the Selected Reserve or the Individual Ready Reserve.  HQDA, G1 is authorized to grant exceptions to policy. 

DISCUSSION AND CONCLUSIONS:

1.  The FSM enlisted in the ARNG in July 2006.  He deployed to Kuwait/Iraq from October 2007 through October 2008.  During his deployment, he complained of several painful moles to his head, face, and lower back, and he indicated that he would like them removed.  

2.  Although the TMC physician noted that the lesion beneath the FSM’s right breast looked dysplastic (pre-cancerous), a U.S. Army pathologist reported the results and found one lesion to be a skin tag and the other three were common moles.  No cancer or dysplasia was found.  It would be almost inconceivable for a trained pathologist to not be able to differentiate between a common mole and cancer, and the physician doing the biopsies did not do them because he suspected cancer.  There is no evidence to show that the results of those biopsies were lost.

3.  The FSM had been REFRAD in September 2008.  The applicant provided VA medical records dated between January and May 2010.  In those documents is a record showing he reported for a VA radiation oncology consult wherein he 

discussed post-operative radiation for recently-diagnosed melanoma of the left neck.  He stated that he developed an ulcerative lesion on his left neck within the past 6 months.  That would have been well after he left active duty.  In addition, no lesions were shaved from the FSM’s left neck or anywhere else on the left side of his body in September 2008.  

4.  The FSM was REFRAD by reason of completion of required active service.  He continued to drill 2 years after he was REFRAD as evidenced by his chronological record of retirement points.  There is insufficient evidence showing, at the time of separation, he was unable to perform the duties required of his grade and/or military specialty or that he had a condition that warranted his extension on active duty for follow-up treatment.  Additionally, he was not diagnosed with a condition that did not meet retention standards prior to REFRAD.

5.  The FSM's medical condition was not diagnosed until early 2010, over          14 months after he had been REFRAD.  A Soldier is eligible for retention on or return to active duty under the MRP with an LOD "yes" documenting unresolved medical issues, and a completed application submitted through the current chain of command.  The RC Soldier has six months from the date of REFRAD to submit his application.  There is no evidence the FSM had an unresolved condition which would have warranted his entry into the MRP2 program, or that he had an unresolved condition that would have warranted his retention on active duty under the basic MRP program.

6.  Regrettably, in view of the foregoing evidence and notwithstanding the State Adjutant General's opinion there is no reason to show the FSM was reinstated onto active duty.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X__ __  ___X____  ____X__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _   X_____   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.


ABCMR Record of Proceedings (cont)                                         AR20110022988



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ABCMR Record of Proceedings (cont)                                         AR20110022988



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