MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            27 January 1999                  
	DOCKET NUMBER:   AR1999015814

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. James E. Vick		Chairperson	
	Ms. Margaret K. Patterson		Member	
	Mr. John H. Kern		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That his Line of Duty (LOD) finding of “In the Line of Duty,” which was subsequently disapproved by the U. S. Total Army Personnel Command (PERSCOM), be reinstated.

APPLICANT STATES:  The decision of PERSCOM is erroneous factually and legally.  The decision fails to prove by substantial evidence that his disease was not incurred in the line of duty.  It was, therefore, erroneous and unjust for them to deny his appeal.

EVIDENCE OF RECORD:  The applicant's military records show:

He served on active duty as a commissioned officer from June 1977 until May 1987.  His last active duty assignment (from June 1984 until May 1987) was in Augsburg, Germany.  He was immediately assigned to the U. S. Army Reserve Control Group (Reinforcement).  He remained in Germany for a period of time after his separation.  He served the following periods of active duty:

     11 July – 23 July 1988 (Germany)
     29 May – 9 June 1989 (Germany)
     11 June – 22 June 1990 (Germany)
     22 January – 7 June 1991 (Fort Huachuca, AZ)
     14 September – 25 September 1992 (Pentagon)
     
On 14 March 1994, he was ordered to active duty for training for 109 days in Germany.  On 3 May 1994, he was diagnosed with early acute myelogenous leukemia.

A formal LOD investigation was conducted.  During the investigation, the applicant informed the investigating officer (IO) that to his knowledge he had not been exposed to any NBC (nuclear, biological, chemical) or toxic waste hazards as a civilian; that he was exposed to increased levels of radiation while on active duty during the Chernobyl nuclear plant disaster; and that he may have been exposed to higher than normal levels of electromagnetic and radio frequency radiation during his ten years as a Signal Corps officer.  One of the support statements obtained by the IO indicated that, in respect to the Chernobyl fallout, ionized radiation has been proved to cause cancer but it may take a long time to develop.  The IO determined that the applicant did not incur the disease through any misconduct or willful negligence on his part and found the disease to have been incurred in the line of duty.  The Administrative Law Attorney determined that no substantial evidence was found that could overcome a presumption of a Line of Duty finding and recommended the Report of Investigation be approved.  The finding was approved by the reviewing authority on 20 September 1994.  

The LOD was forwarded to PERSCOM for final action.  On 30 October 1995, PERSCOM notified the applicant, through channels, that they were considering changing the finding from In Line of Duty to Not in Line of Duty – Not Due to Own Misconduct (EPTS (existed prior to service), no service aggravation).
On 12 April 1996, the applicant appealed.  In his appeal, he noted that Army Regulation 600-8-1 sets out that in order to find a disease existed prior to service, there must be substantial evidence that it existed before military service or happened between periods of active service.  Since he served a total of over 12 years on active duty at various times, it is possible that the condition causing the disease was contracted during one of his previous periods of active duty.  He also noted that the regulation places the burden of proof on the Government to prove, by substantial evidence, that his disease was not incurred in the line of duty.  As supporting evidence, he included a statement from a board certified oncologist that “…disorder can appear even years prior to the clinical diagnosis of…Therefore, it is possible that …actually did start during one of his periods of active duty.”

On 22 November 1996, PERSCOM advised the applicant that “…after thorough administrative and legal reviews and three medical opinions rendered by the Office of the Surgeon General…the finding of In Line of Duty is changed to Not in Line of Duty – Not Due to Own Misconduct (EPTS, no service aggravation).

As of 9 September 1997, the applicant was still in the U. S. Army Reserve in a Troop Program Unit (TPU) assignment in Germany.

Army Regulation 600-8-1, chapter 39, dealing with LOD investigations, provides that a formal LOD investigation must be conducted in all cases of injury, disease or medical conditions that occur under strange or doubtful circumstances.  Unless refuted by substantial evidence contained in the investigation, an injury, disease or death is presumed to be In Line of Duty.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

2.	The applicant was separated in May 1987 after serving ten years on active duty.  He entered the U. S. Army Reserve, performed a few annual periods of active duty for training, and was again ordered to active duty for training in March 1994.

3.  Approximately two months later, in May 1994, during a routine physical examination, the applicant was diagnosed with leukemia.  A formal LOD was conducted in accordance with regulations and the LOD IO found no evidence that the applicant’s disease was caused by any misconduct or willful negligence on his part.  The Administrative Law Attorney determined that no substantial evidence was found that could overcome a presumption of a Line of Duty finding and recommended the Report of Investigation be approved.  The approving authority did so approve it.

4.  Upon receiving the action, PERSCOM, after considering a medical opinion rendered by the Office of the Surgeon General and administrative and legal reviews, notified the applicant they were considering changing the finding to Not in Line of Duty – Not Due to Own Misconduct (EPTS, no service aggravation).

5.  The applicant appealed this action.  In his appeal, he included a statement from a board certified oncologist who stated that it was possible his disease did start during one of his periods of active duty.

6.  PERSCOM disagreed and changed the finding.

7.  The Board notes that the oncologist who provided him with a supporting statement stated that the disease “can appear even years prior to the clinical diagnosis.”  It also notes that one of the support statements obtained by the IO noted that the ionized radiation emitted as a result of the Chernobyl accident could have caused his disease “although it may take a long time to develop.”  (The Chernobyl accident occurred on 26 April 1986).

8.  The Board notes that the period between May 1987, when the applicant was separated from active duty and May 1994, when he was diagnosed with leukemia, was approximately 2550 days.  During that time, he was on active duty
approximately 246 days. 

9.  The Board does not believe it likely that the applicant’s leukemia developed on one of those scattered 246 days.  The Board believes the substantial evidence test has been met, and is therefore in agreement with PERSCOM’s reversal of the original finding, in that the disease is much more likely to have developed while he was not on active duty.  

10.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__JEV___  __MKP__  __JHK__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999-15814	
SUFFIX		
RECON		
DATE BOARDED	19990127	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	122.00	
2.		
3.		
4.		
5.		
6.