IN THE CASE OF:	

		BOARD DATE:	  24 September 2015

		DOCKET NUMBER:  AR20140017454 


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 that his line of duty (LOD) determination be changed from “NOT IN LINE OF DUTY – NOT DUE TO OWN MISCONDUCT” to “IN LINE OF DUTY.” 

2.  The applicant states that he believes the decision to find that his disease was not in line of duty was in error as well as an injustice to himself and his family as proper regulations were not followed in the Army’s decision.

3.  The applicant provides a three-page letter explaining his application and copies of the LOD Report, LOD Final Determination, LOD Appeal Determination, LOD Legal Review, and LOD Appeal Letter. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant’s LOD determination be changed to “IN LINE OF DUTY.”

2.  Counsel states, in effect, that the LOD determination should be changed to “IN LINE OF DUTY” because the applicable regulation provides that an injury, death, or disease is presumed to be in LOD unless refuted by substantial evidence contained in the investigation and the only way there could have been a finding of not in LOD would have been by providing substantial evidence to refute the rebuttable presumption of in LOD and neither the National Guard Bureau (NGB) or the U.S. Army Human Resources Command (HRC) have provided sufficient evidence to support their conclusion of not in LOD.  He goes on to state that the applicant was also denied his rebuttal rights and was never given a legitimate reason for a change of the LOD determination from in LOD to not in LOD – not due to misconduct.  He further states that both the approval and appellate authorities have inaccurately interpreted the regulatory authority which provides that there is a presumption that a disease will be found in LOD.  However, the VA has determined that his disease is in LOD and had granted him a 100% disability rating.  

3.  Counsel provides a four-page memorandum explaining his arguments.

CONSIDERATION OF EVIDENCE:

1.  The applicant served in the Regular Army as a unit supply specialist from 20 June 1982 to 23 April 1990.  On 23 September 1998, he enlisted in the Minnesota Army National Guard (MNARNG) and has served as a unit supply specialist through a series of continuous reenlistments.  He was promoted to the pay grade of E-5 on 9 March 2005.

2.  He deployed to Iraq during the periods 20041116 – 20050306 and 20090413 – 20100113.  He was issued his 20-Year letter on 3 October 2005.

3.  On 7 January 2013, a DA Form 2173 (Statement of Medical Examination and Duty Status) was prepared and indicates that during a Post-Deployment Health Reassessment (PDHRA), the applicant was diagnosed as having peritoneal mucinous adenocarcinoma and that an LOD investigation was required.

4.  On 15 March 2013, a LOD was completed by the investigating officer who found the applicant’s condition was in LOD.  The appointing authority and reviewing authority both approved the findings and the LOD was forwarded to the NGB for final approval.

5.  On 10 May 2013, the NGB disapproved the findings of in LOD and changed the LOD to “NOT IN LINE OF DUTY – NOT DUE TO OWN MISCONDUCT.”  Officials at the NGB indicated that the applicant was diagnosed with his disease over 10 months after release from active duty (REFRAD) and he was not evaluated with any complaints associated with the disease process while on active duty nor was there any diagnosis of the disease prior to or immediately after his REFRAD.  He was advised that he had 30 days in which to appeal the decision.
 
6.  On 7 June 2013, the applicant appealed the decision through counsel contending that the determination of not in LOD should be changed to in LOD because the final decision did not meet procedural and notification requirements mandated by regulation and does not have the evidence to support a finding of not in LOD.  Counsel provided a three-page appeal explaining his arguments.

7.  On 10 September 2013, in response to the applicant’s appeal of the LOD findings, the HRC reviewed the applicant’s LOD investigation and determined that the finding should stand.  HRC officials went on to state that there was no evidence to indicate he ever presented complaints of his condition while on active duty or that his activity in the military caused or aggravated his condition.

8.  On 9 March 2014, a military occupational specialty medical retention board determined that he did not meet medical retention standards for worldwide deployment and notified the applicant that he had 30 days in which to request a non-duty physical evaluation board (PEB).  The available records are silent as to whether he made such a request.

9.  On 30 April 2014, the applicant was discharged from the MNARNG due to being medically unfit for retention.  He was transferred to the U.S. Army Reserve Control Group (Retired Reserve).

10.  There is no official documentation or correspondence related to medical consultations within the documents provided.  However, the memorandum prepared by the investigating officer and attached to the LOD investigation indicates that VA Medical Center physician focusing on hematology/oncology and infectious disease opined that “it is at least likely as not that his cancer began while on active duty” and “it is highly likely that early manifestations of this condition were present while he was on active duty.”   

11.  In the processing of this case, a staff advisory opinion was obtained from Brooke Army Medical Center’s (BAMC) chief PEB physician which opines that there was no evidence that the applicant’s cancer was caused or aggravated by military service and all evident progression of his disease occurred while he was in a non-active duty status.  At the time of his demobilization there were no manifestations or symptoms of disease to suggest that he should be referred into the military disability system.

12.  The advisory opinion was forwarded to the applicant for comment and his counsel responded to the effect that the applicant’s cancer was found to be in the LOD by a formal investigation as well as medical experts in Minnesota and the regulatory presumption is in the applicant’s favor unless substantial evidence is presented to the contrary and to date, no such evidence has been presented.  Accordingly, the LOD finding should be changed to “In Line of Duty.”

13.  Army Regulation 600-8-4 (Line of Duty Policy, Procedures, and Investigations) prescribes policies and procedures for investigating the circumstances of disease, injury, or death of a Soldier.  It provides standards and considerations used in determining LOD status.  Appendix B identifies the following rules used in LOD determinations:

	a.  Paragraph 2-6 (Standards applicable to LOD determinations) states LOD determinations will be made in accordance with the standards set forth in this regulation;

	b.  Paragraph 2-6a states injury, disease, or death proximately caused by the Soldier's intentional misconduct or willful negligence is "not in LD — due to own misconduct."  Simple or ordinary negligence or carelessness, standing alone, does not constitute misconduct; 

	c.  Paragraph 2-6b states an injury, disease, or death is presumed to be in LOD unless refuted by substantial evidence contained in the investigation;

	d.  Paragraph 2-6c states LOD determinations must be supported by substantial evidence and by a greater weight of evidence than supports any different conclusion.  The evidence contained in the investigation must establish a degree of certainty so that a reasonable person is convinced of the truth or falseness of a fact, considering:

		(1)  All direct evidence, that is, evidence based on actual knowledge or observation of witnesses; and/or 

		(2)  All indirect evidence, that is, facts or statements from which reasonable inferences, deductions, and conclusions may be drawn to establish an unobserved fact, knowledge, or state of mind. 

	e.  Paragraph 2-6e states a distinction will be made between the relative value of direct and indirect evidence.  In some cases, direct evidence may be more convincing than indirect evidence.  In other cases, indirect evidence may be more convincing than the statement of an eyewitness.  The weight of the evidence is not determined by the number of witnesses or exhibits but by the investigating officer and higher authorities accomplishing the following actions: 

		(1)  Considering all the evidence.

		(2)  Evaluating factors such as a witness's behavior, opportunity for knowledge, information possessed, ability to recall and relate events, and relationship to the matter to be decided. 
		(3)  Considering other signs of truth. 

	f.  Chapter 4 of the same regulation contains guidance on special considerations and other matters affecting LOD investigations; and 

	g.  Paragraph 4-8e(3) states specific findings of natural progress of the pre-existing injury or disease based upon well-established medical principles alone are enough to overcome the presumption of Service aggravation.

	h.  Paragraph 4-8f(3) states any physical condition having its inception in LOD during one period of Service or authorized training in any of the Armed Forces that recurs or is aggravated during later Service or authorized training, regardless of the time between, should be in LOD.  The aggravated condition must not be caused by misconduct or willful negligence. 

14.  Title 38, U.S. Code, sections 310 and 331, permit the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not empowered by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that the final LOD determination of "Not In LOD-Not due to own Misconduct" be changed to "In the LOD" has been carefully considered.  However, there is insufficient evidence to support granting the requested relief.  

2.  The medical evidence of record and that provided by the applicant fails to provide a compelling medical basis to overturn the "Not In LOD-Not due to own Misconduct” determination of NGB.  NGB explained the basis for this determination as the fact that he was not evaluated with any complaints associated with the disease process while on active duty nor was there any diagnosis of the disease prior to or immediately after his REFRAD.  This was further supported by officials at the HRC and the advisory opinion from BAMC.  

3.  While opinions differ as to when the applicant’s cancer occurred, they are just that.  The applicant has provided no evidence to show that his disease manifested or that he was treated for symptoms of the disease while he was in an active duty status.  Accordingly, the findings of “Not in Line of Duty – Not Due to Own Misconduct” appear to be in accordance with the governing regulation.   

4.  The applicant’s contention that he was denied his rebuttal rights and was never given a legitimate reason for a determination of “Not in Line of Duty – Not Due to Own Misconduct” has been noted and also appears to lack merit.  It appears that the original finding of “In Line of Duty” was incorrect because there was no evidence of the disease being manifested or treated while the applicant was in an active duty status and the applicant has been afforded his right to appeal as evidenced by his appeals of the “Not in Line of Duty – Not Due to Own Misconduct” findings.  Additionally, the applicant has not provided sufficient evidence to establish that his disease was incurred or aggravated by his military service.

5.  Accordingly, there appears to be no basis to grant his request to change the LOD findings in his case.

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)                                         AR20140017454



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ABCMR Record of Proceedings (cont)                                         AR20140017454



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