BOARD DATE:	  1 October 2015

		DOCKET NUMBER:  AR20150004571 


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 reconsideration of his request to have his line of duty (LOD) determination made in conjunction with his prostate cancer changed to “in LOD.”

2.  The applicant states, in effect, that his LOD determination made in conjunction with his prostate cancer should reflect “in LOD.”

3.  The applicant provides documents tabbed A – L, which consist of orders, medical records, emails, Physical Disability Evaluation System (PDES) proceedings, LOD proceedings, and attendance records.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant be granted reconsideration of his previous case.

2.  Counsel states, in effect, that the applicant made a timely application for reconsideration considering the processing times involved in his case. 

3.  Counsel provides no additional documents. 

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120005583, on 5 February 2013.

2.  The applicant, with prior Army National Guard (ARNG) service, enlisted in the North Carolina ARNG (NCARNG) on 12 February 1982.  He was promoted to the pay grade of E-7 on 15 November 1996.  He remained in the NCARNG until 12 May 2010.  He was placed on the Retired List on 13 May 2010 by reason of disability.  

3.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 4 March 2008, shows the applicant was diagnosed with prostate cancer while in an active duty special work status in August 2003.

4.  A DD Form 261 (Report of Investigation – Line of Duty and Misconduct Status) shows that the initial determination of the investigating officer on 8 August 2008 was "In LOD" and this finding was approved by the appointing authority at the State Area Command (STARC) on 17 October 2008, and by the reviewing authority at the STARC, NCARNG on 10 November 2008.   

5.  On 16 January 2009, the Office of the Chief, National Guard Bureau (NGB) gave its final determination which was "Not in LOD-Not due to own misconduct for prostate cancer."  The NGB explained that the "Not in LOD-Not due to own misconduct" finding was based on the natural history of the disease requiring a conclusion that it existed prior to his military duty on which the applicant had biopsy-proven moderately advanced prostate cancer.

6.  In a memorandum to the State, dated 10 December 2008, NGB notified State officials to provide the applicant a copy of the final LOD determination by certified mail and to inform him of his right to appeal within 30 days of receipt of the notification.  

7.  In December 2011, the NCARNG concurred with the NGB finding that the cancer was "not in LOD" and because of the applicant's M-Day status he was not eligible for medical coverage of conditions not found in LOD.  

8.  On 7 December 2011, the NCARNG G-1 Sergeant Major completed a memorandum for record, subject: Review of Medical and Administrative Records, pertaining to the applicant.  He indicates that after a careful review of the applicant's medical records, it was the opinion of that office that the final NGB LOD determination "Not in LOD-Not due to own misconduct for prostate cancer" was correct.  It further indicates after reviewing the various orders of the applicant which show he was placed on active duty between 10 March 2003 and 21 October 2003, it was their opinion that for all intents and purposes he was an "M-Day Soldier" during this period.  Due to the fact that many different types of funding were used for these orders, regulatory guidance was followed.  As an   M-Day Soldier, the applicant would not have been eligible for the certain medical benefits and medical coverage for conditions found "not in LOD."  

9.  The applicant provides orders showing he was ordered to active duty special work during the periods:

* 10 – 14 March 2003
* 17 – 21 March 2003
* 24 – 28 March 2003
* 31 March – 4 April 2003
* 14 – 18 April 2003
* 13 – 14 May 2003
* 25 – 30 May 2003
* 22 – 27 June 2003
* 19 – 20 July 2003
* 28 July – 1 August 2003
* 4 – 8 August 2003
* 11 – 15 August 2003
* 18 – 22 August 2003
* 25 – 29 August 2003
* 1 – 5 September 2003
* 8 – 12 September 2003 

10.  The applicant’s complete medical records are not available for review; however, the applicant provides a clinical record, dated 13 August 2003, which states, “He has been followed in Fayetteville with PSAs over the years.  His PSA has increased over the past couple of years from 1.2 to 2.6, the last about 6 months ago.  He has a strong family history of prostate cancer.”

11.  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 line of duty (LD) 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. 

	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 of duty 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. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's supporting documents and his request that the final LOD determination of "Not in LOD-Not due to own misconduct for prostate cancer" be changed to "in the LOD" has been carefully reconsidered.  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 for prostate cancer" determination of the NGB.  The basis for the determination was the natural progression of the disease, which would result in a conclusion it occurred prior to activation and the applicant has failed to provide sufficient evidence to overcome that conclusion.  

3.  Accordingly, there appears to be no evidence to show that the applicant’s cancer was caused or aggravated by military service and, therefore, there is no basis to grant his request to change his LOD determination.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__x______  ___x_____  _x____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1. 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 to amend the decision of the ABCMR set forth in Docket Number AR20120005583, dated 5 February 2013.




2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Global War on Terrorism.  The applicant and all Americans should be justifiably proud of his service in arms.




      _______ _   _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)                                         AR20150004571





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ABCMR Record of Proceedings (cont)                                         AR20150004571



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