IN THE CASE OF:	  

		BOARD DATE:	    8 April 2014

		DOCKET NUMBER:  AR20130011465 


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 to show his release from active duty date of 2 June 2011 was extended to coincide with the date of his death, 3 August 2011. 

2.  The applicant states:

	a.  There is uncontested medical evidence that shows the cancer that caused his death was present prior to his release from active duty.  According to the Department of Defense (DOD) and Army regulations, a mobilized service member, redeploying, should not be demobilized if he is ill or injured.  The service member should be retained on active duty for treatment or medical evaluation board (MEB) evaluation.  The FSM's cancer was symptomatic prior to his release from active duty and he should have been retained on active duty. 

	b.  She currently has a claim pending in the Illinois' Court for Illinois Line of Duty compensation with a status date of 13 July 2013.  Illinois' Line of Duty compensation requires that the Soldier died while on active duty in support of Operation Enduring Freedom (OEF) or Operation Iraqi Freedom (OIF).  Her case would be stronger if she had clear documentation from the Board that the FSM was on active duty at the time of his death.  

	c.  If the Board has the availability, she requests her claim be heard on an expedited basis so that the Illinois Court of Claims can consider the FSM's full and accurate military record.  

3.  The applicant defers her documentary evidence to counsel.  

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests the FSM's date of demobilization be changed to 3 August 2011, his date of death.  

2.  Counsel states the wide-spread cancer which caused the FSM's death existed and was symptomatic before his demobilization.  The Army's staff failed to detect the cancer because it masked the FSM's fall on his tailbone while he was deployed in support of OEF.  Counsel also provides an overview of the FSM's military service, standards of medical of care in the Army, applicable statutes and regulations, and makes the following argument: 

* the Army erred by failing to follow post-deployment regulations designed to prevent deactivation of ill or injured Soldiers
* the Army committed an injustice by failing to retain and treat a Soldier who was suffering from cancer
* the Board should correct the FSM's release from active duty date to his date of death to rectify the error and injustice caused by his improper demobilization

3.  Counsel provides: 

* Multiple DA Forms 2173 (Statement of Medical Examination and Duty Status)
* DD Form 261 (Report of Investigation - Line of Duty and Misconduct Status)
* Line of Duty determination by the National Guard Bureau (NGB)
* Multiple DA Forms 2823 (Sworn Statement)
* Statement from Staff Sergeant (SSG) H--n
* Email from Sergeant G----y
* DD Form 1300 (Report of Casualty)
* Disability counseling statement
* DD Forms 214 (Certificate of Release or Discharge from Active Duty) ending on 2 June 2011, 30 July 2004, 25 October 1989, and 1 October 1992
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* Multiple DA Forms 4836 (Oath of Extension of Enlistment or Reenlistment)
* DD Form 689 (Individual Sick Slip)
* Orders 099-087 (orders to active duty) with amendments
* Memoranda authorizing the FSM certain awards
* Promotion orders 
* Multiple DD Forms 4 (Enlistment/Reenlistment Document)
* DA Form 4856 (Developmental Counseling Form)
* Memorandum for Record titled "Agreement for Deployment Extension Stabilization"
* Multiple DA Forms 2166-8 (Noncommissioned Officer Evaluation Report)
* DA Form 7425 (Readiness and Deployment Checklist)
* Certificate of Death
* DD Form 2766 (Adult Preventive and Chronic Care Flowsheet)
* Standard Form 600 (Chronological Record of Medical Care)
* Email exchange in relation to the FSM's medical condition
* Consultation Notice from Dr. C-----u
* Report of MRI Pelvis Without Contrast from Tomah Memorial Hospital
* DD Form 2648-1 (Preseparation Counseling Checklist for Reserve Component Service members Released from Active Duty)
* Post-Deployment Health Assessment (PDHA)
* DD Form 2697 (Report of Medical Assessment)
* Radiology Group Imaging Center Medical Report
* Pathology Report
* DA Form 3349 (Physical Profile)

CONSIDERATION OF EVIDENCE:

1.  The FSM was born on 9 March 1967.  

2.  Having had prior service in the Regular Army and the Iowa Army National Guard, the applicant enlisted in the ILARNG on 12 August 2002 and he held military occupational specialty (MOS) 91B (Wheeled Vehicle Mechanic). 

3.  He served through multiple extensions in the ILARNG in a variety of assignments, including multiple periods of mobilization: 

* Title 10, U.S. Code (USC), from 3 February 2003 to 30 July 2004; he served in Kuwait/Iraq from 14 April 2003 to 23 June 2004
* Title 32, USC, from 1 October 2006 to 22 July 2007; he served in support of recruiting and retention 

4.  On 20 May 2010, he was ordered to active duty in support of OEF (Multi-National Force and Observers) and he subsequently served in Sinai, Egypt from 8 July 2010 to 28 April 2011.  

5.  On 26 April 2011, the FSM went on sick call for pain in the tail bone area.  He reported he crashed his Segway into a Hookah bar at 30 miles per hour on         3 March 2011.  He stated that almost immediately after the wreck he noticed swelling but was not able to look for bruising.  He did not come back on sick call because of an upcoming physical fitness test and because he believed he would get better on his own.  He reported blood in his stool and described going to the bathroom much more frequently.  He described constant cramps in the underside of the buttocks.  

6.  Upon return to the continental United States, he went on sick call again on      1 May 2011.  Dr. A-n indicated on the DA Form 689 "Possible Coccyx fracture" and "Refer to Troop Medical Clinic (TMC) for MRI, is clear to demobilize."  

7.  On 2 May 2011, the FSM was seen at Fort McCoy primary care for referral to an MRI.  He indicates his pain level was 3 out of 10.  His chief complaint was pain in the tail bone for 2 months now subsequent to an injury while deployed.  He reported rectal bleeding at time of the injury, which was very concerning to him.  Also on 2 May 2011, he completed:

	a.  A DD Form 2796 but he did not report anything concerning or related to his accident. 

	b.  A DD Form 2697 and reported an injury to his coccyx after falling of a Segway scooter. 

8.  On 3 May 2011, the FSM was again seen at Fort McCoy primary care and he reported severe pain.  He was prescribed medication.

9.  On 6 May 2011, the FSM was x-rayed at Tomah Memorial Hospital and the finding reported a "small 1 cm focus of bone marrow edema at the anterior slightly left lateral aspect of the S3 segment, which is not associated with any abnormal signal at T1.  This is not completely representative of a fracture; however, given the FSM's pain and history of trauma it was felt to be due to a minimal bone contusion.  Dr. S---n stated "there was some abnormal edema and signal within the 1st section of the coccyx.  This is associated with surrounding bone marrow edema and abnormal signal at T1.  This is most consistent with a healing non-displaced coccygeal fracture."  Following this MRI, the FSM returned to Fort McCoy and again complained of severe pain.  He requested a refill of Vicodin until the results of the MRI were received.  His doctor continued him on Hydrocodone. 

10.  On 9 May 2011, Headquarters, U.S. Army Garrison, Fort McCoy, WI, published Orders 129-1154 ordering the FSM's release from active duty, not by reason of physical disability, effective 2 June 2011. 

11.  On 10 May 2011, the FSM was seen at Fort McCoy for the results of the MRI.  The doctor noted "the service member and I doubt appropriateness of Warrior Transition Unit (WTU) based on current objective findings and expect continued gradual improvement of bruising and the apparent fracture of the coccyx evident in the MRI; will continue Motrin and Vicodin only sparingly; consider request for physical training at home location using VAS and/or TRICARE if not improving in expected timeframe.  Service member is clear to demobilize.  

12.  The FSM was honorably released from active duty on 2 June 2011 by reason of completion of his required service and he was transferred to the control of his state ARNG. 

13.  On 28 June 2011, the FSM was seen by Dr. G-----u, Oncology and Hematology, in Moline, IL.  Dr. G-----u discovered a tender anal mass.  There was an indication of blood in the FSM's stool. 

14.  On 29 June 2011, the FSM was sent for a Positron Emission Tomography (CET) scan with Computed Tomography (CT) Fusion, Radiology Group Imaging Center, davenport, IA.  The impression recorded by Dr. F----r is "Abnormal uptake within large rectal mass consistent with colon cancer." 

15.  The FSM died on 3 August 2011.  His death certificate and DD Form 1300 listed the cause of death as "Metastatic Melanoma."  Item 4g (Casualty Information – Duty Status) shows the entry "Non-duty related/Soldier was not in a duty status."

16.  According to the National Institutes of Health website, the term "Metastatic Melanoma," also known as stage IV melanoma, is used when melanoma cells of any kind (cutaneous, mucosal or ocular) have spread through the lymph nodes to distant sites in the body and/or to the body's organs.  The liver, lungs, bones, and brain are most often affected by these metastases.  As with other cancers, metastases occur when the melanoma is not caught in the early stages.  Oftentimes, symptoms only become present once the melanoma has already spread.  Once melanoma has spread, determining the original type is nearly impossible – which makes planning the right treatment extremely difficult.  Early detection is crucial.

17.  Subsequent to the FSM's death, the ILARNG initiated and submitted multiple DA Forms 2173 as follows: 

	a.  A DA Form 2173, dated 3 August 2011, that shows that on or around         1 June 2011 the FSM noticed a lump in his groin area.  On 9 June 2011, he went to the troop medical clinic for further care.  On 28 June 2011, he was diagnosed with Stage IV colon cancer.  He passed away from cancer in early August 2011.  This line of duty (LOD) was submitted late due to lack of medical documentation. 

	b.  A DA Form 2173, dated 17 November 2011, which shows the FSM sustained a sprain, not otherwise specified.  On 3 March 2011, at Sharm El Sheikh, Egypt, he was riding a Segway when a pedestrian walked in front of him causing him to lose control and crash into a Hookah Bar.  The FSM reported pain in his tailbone.  On 26 April 2011, he went to the troop medical clinic at South Camp for further evaluation.  This LOD is submitted late due to lack of medical documentation. 

18.  On 2 November 2011, the ILARNG appointed an investigating officer (IO) to perform line of duty investigation in relation to the details of the FSM's injuries that occurred in Sinai, Egypt while on Title 10 orders from 20 May 2010 to          17 May 2011.  

19.  The IO stated for the purpose of rendering an LD determination in death cases, a Soldier's death will be considered to have occurred in line of duty unless the death occurred while the Soldier was not serving on active duty.  On the date of the FSM's death, he was not in an inactive duty training (IDT), active duty for training (ADT) or active duty (AD) status, nor was he on the date he was diagnosed with cancer.  Taking into account the totality of evidence, the IO found the cause of death of the FSM as colon cancer, not related to his military duties performed during mobilization from 20 May 2010 to 23 May 2011.  The IO documented his finding on a DD Form 261 on 29 November 2011.  This report shows the FSM was seen for unresolved pain after demobilization and he was diagnosed with cancer of the anus that was found "Not in line of duty - Not due to own misconduct." 

	a.  The appointing authority concurred with the IO's findings and approved this report on 30 November 2011

	b.  The reviewing authority indicated that based on Dr. G--y's report dated 2 May 2011 and Dr. S---t's letter, dated 16 November 2011, he did not concur with the IO's findings.  Rather, the reviewing authority agreed with the Illinois State Surgeon's office and the Illinois Judge Advocate, both stating they consider the death of the FSM to be in line of duty.  The FSM clearly had malignancy while on Title 10 orders and he found the malignancy in line of duty.  He signed the report on 28 March 2012.  

	c.  The final approval authority - Chief, NGB determined on 28 March 2012 this was "In line of Duty for Metastatic Melanoma of Anus." 

20.  An advisory opinion was received on 28 March 2014 from the Office of The Surgeon General’s Medical Evaluation Board Consultant and Hematology/ Oncology Consultant that reviewed the medical records provided.  The advisory official stated: 

	a.  The FSM had a medical history of metastatic melanoma.  It is the advisory official's opinion that further evaluation of the FSM's rectal bleeding would have been appropriate and would have increased his disposition options to include possible WTU treatment, an MEB, and probable medical retirement.  Whether he would or would not have died on active duty cannot be determined retrospectively.  

	b.  Based on the pathology report and metastatic findings of Stage 4 melanoma 4 weeks after release from active duty, the presence of this condition one year prior cannot be determined with certainty.  It was a very aggressive malignancy based on the rapid progression from onset of symptoms in March 2011 to death in August 2011.  Since he was asymptomatic at the time of mobilization and the disease was remarkably aggressive, it is likely the disease developed during his mobilization.   

21.  The applicant was provided with a copy of this advisory opinion.  The applicant's counsel responded on 3 April 2014.  She stated: 

	a.  In response to the memorandum from OTSG, she would like to clarify the limits of her requested review.  Her office has only sought a determination of whether the U.S. Army erred when it demobilized the FSM on 10 May 2011.  Both the 28 March 2014 memorandum and the supporting email indicate that this demobilization was an error.   

	b.  She is not requesting the Board to speculate on whether the FSM would have died if he had received proper, timely treatment.  To the extent the 28 March 2014 memorandum and supporting email speak to this issue it is beyond the scope of her request.  She is also not requesting a determination of what program the FSM would have been assigned had his cancer been detected prior to demobilization.  She agrees that such a determination is speculative. Rather, she is only requesting that the Board void the improper demobilization as it did in the factually similar lymphoma (ABCMR Docket Number 20100013076) case.  By voiding the demobilization and reinstating the FSM to the orders he was on prior to that error, the Board will correct the error and avoid needless speculation. 

22.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  In establishes standardized policy for the preparation of the DD Form 214.  The DD Form 214 is a synopsis of the Soldier's most recent period of continuous active service.  Paragraph 2-1 states a DD Form 214 will not be prepared for Soldiers whose active duty tour ends because of death.

DISCUSSION AND CONCLUSIONS:

1.  The FSM was mobilized on Title 10, USC, orders from 20 May 2010 to 2 June 2011.  He served in Sinai, Egypt from 8 July 2010 to 28 April 2011.  Around March 2011 during this deployment, he fell and injured his tailbone.  Over the course of the next two months and during the demobilization process, the FSM complained of pain in the area of the injury.  His pain worsened and he reported rectal bleeding.  His medical providers attributed his pain to the fall.  

2.  He underwent an MRI on 6 May 2011.  Doctors reported a small 1 cm focus of bone marrow edema at the anterior slightly left lateral aspect of the S3 segment which was not associated with any abnormal signal at T1.  This was not reported as a fracture; however, in view of the FSM’s severe pain, it was described as a minimal bone contusion.  There was some abnormal edema and abnormal signal in T1 which was most consistent with a healing non-displaced coccygeal fracture. 

3.  Although some of the medical documentation is unclear as to when his symptoms began there is enough evidence to support a position that the FSM should have been retained longer for additional evaluations.  While it could have been possible that his rectal bleeding was only related to his tailbone injury, given the FSM’s age an examination for other possible causes of the bleeding could have been done.  If that had happened, medical providers would have had the chance to consider other options such as transferring the FSM to the WTU for long-term treatment or if no treatment was offered, a possibility for a medical evaluation board.  

4.  It cannot be determined with certainty, from the available evidence, whether his Stage IV melanoma occurred while on active duty.  However, further 

evaluation of the FSM's rectal bleeding would have been an appropriate course of action at the time of his demobilization.  This would have increased his disposition options to include the WTU treatment, an MEB, and possibly a medical retirement, all of which would have taken time to conduct/conclude, and almost certainly would have meant he would have been on active duty at the time of his death.  

5.  Therefore, it is appropriate to correct the FSM's records to show he remained on active duty through 3 August 2011.  This would generate multiple corrections as recommended below. 

BOARD VOTE:

__X____  ___X____  ___X____GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army and Army National Guard records of the individual concerned be corrected by:

* revoking Orders 129-1154, issued by Headquarters, U.S. Army Garrison, Fort McCoy, WI, on 9 May 2011, releasing the FSM from active duty and voiding his DD Form 214 ending on 2 June 2011
* publishing orders showing the FSM remained on active duty and was assigned to the Warrior Transition Unit, Fort McCoy, WI, effective 2 June 2011, for the purpose of participating in the Reserve Component medical processing
* crediting the FSM with active duty service from 2 June 2011 to 3 August 2011
* paying the FSM’s designated beneficiary active duty back pay and allowances from 2 June to 3 August 2011
* 
amending the FSM's DD Form 1300 to show the FSM died while on active duty and paying the applicant any benefits that flow from his active duty death 



      ___________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)                                         AR20130011465



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ABCMR Record of Proceedings (cont)                                         AR20130011465



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