PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           25 July 2002
	DOCKET NUMBER:   AR2002072374

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

	Mr. Carl W. S. Chun		Director	
	Ms. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Richard T. Dunbar		Member	
	Mr. Kenneth W. Lapin		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

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

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, that his records be corrected to show he was medically retired.

3.  The applicant states that, because of the medical condition that was discovered while he was on active duty, he should have been referred to a medical evaluation board (MEB).  He did not even complete a separation physical.

4.  The applicant’s military records show he completed his enlistment physical examination on 24 September 1996.  He noted his health as “good” on the Report of Medical History, SF 93, and his Report of Medical Examination, SF 88, noted he was qualified for enlistment.  He enlisted in the Regular Army on 9 July 1997.  He completed basic training and advanced individual training and was awarded military occupational specialty (MOS) 19D (Cavalry Scout).

5.  On or about 1 June 1998, the applicant was hit with a pool cue across the left brow and nose during a bar fight apparently while on leave which caused him to lose consciousness.  In the emergency room he was given stitches and a CT scan of the head.  Though his nose was broken no skull fracture was identified.  An abnormality in the basal ganglion was identified so he was scheduled for an MRI.  It does not appear that a Line of Duty Investigation (LDI) was completed at that time.

6.  On 16 July 1998, an MRI was performed on the applicant which confirmed an abnormality.  He was referred to Neurology for evaluation of the mass given concern of a possible glioma (two alternate terms are astrocytoma and primary brain tumor).  He denied any symptoms although he indicated that since his injuries his noncommissioned officers seemed to get after him for not remembering things.  Neurology recommended a Neurosurgical consultation, a repeat MRI in 1 to 2 months, and that he notify his doctor of any new symptoms.  Neurosurgery diagnosed a probable glial neoplasm (a tumor in a centrally-located part of the brain) and doubted very seriously that it was a residual finding from the head trauma.  He was referred to Brooke Army Medical Center for consideration of stereotactic biopsy.  There is no record that a biopsy was performed at that time.

7.  The applicant underwent another MRI in February 1999.  No change in the lesion was noted when compared to July 1998 and it was indicated another MRI would be performed in July 1999.  There is no record that another MRI was performed.  On 18 November 1999, the applicant was released from active duty after completing his required service after completing 2 years, 4 months, and 10 days of creditable active service with no lost time.  There is no record to show he completed a separation physical.  He enlisted directly in the Army National Guard (ARNG).

8.  In May 2001, the applicant was ordered to active duty for approximately 100 days for MOS training.  During training he began to feel weak and nauseous and to suffer from headaches and short attention span.  An MRI administered at Portsmouth Naval Medical Center showed a large increase in the size of the brain tumor when compared to prior MRIs.  A Statement of Medical Examination and Duty Status, DA Form 2173, dated 13 June 2001 shows that his condition was considered to have been incurred In Line of Duty.  It also shows that he was released from active duty on 13 June 2001.  On 20 June 2001, the Department of Veterans Affairs (VA) Denver Medical Center confirmed a diagnosis of astrocytoma.  He underwent a biopsy, emplacement of a draining shunt device, and chemotherapy.  

9.  Apparently, the applicant was not retained on active duty to begin physical disability processing in order to authorize him payment of incapacitation pay.

10.  A Report of Investigation Line of Duty and Misconduct Status, DD Form 261, dated 15 January 2002 shows that an LDI determined the applicant’s condition was In Line of Duty, aggravated during a period of authorized training.  A review dated 13 March 2002 of the LDI by the National Guard Bureau Chief Surgeon determined that there was no documentation showing the applicant’s condition was determined to be In Line of Duty when he was on active duty in 1998.  The presence alone of a neoplasm which is not treatable, such as the applicant’s astrocytoma, was reason for MEB referral.  Therefore, the applicant did not meet ARNG enlistment standards and he was erroneously enlisted.  The findings of the LDI were changed to Not in Line of Duty – Not Due to Own Misconduct.  

11.  Apparently, the applicant’s incapacitation pay was terminated when the LDI findings were changed to Not in Line of Duty – Not Due to Own Misconduct.  Apparently, the VA cannot open a service-connection case on the applicant because he is still in the ARNG.  

12.  Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.  The regulation defines “physically unfit” as unfitness due to physical disability.  The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purpose of his employment on active duty.  “Physically unfit” is synonymous with “unfit because of physical disability.”  Paragraph 3-1 states that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the soldier reasonably may be expected to perform because of his or her grade and rank.  Paragraph 3-2b(1) states that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  

13.  Army Regulation 635-40, paragraph 4-10 states that an MEB makes a decision as to a soldier’s medical qualification for retention based on the criteria in Army Regulation 40-501, chapter 3.  If the MEB determines the soldier does not meet retention standards, the board will recommend referral of the soldier to a physical evaluation board (PEB).  Paragraph 4-19(d) states that the first and most important determination made by the PEB is whether the soldier is physically fit or unfit to perform the duties of the soldier’s grade or rank.  All other actions are directly or indirectly tied to this one finding.  

14.  Army Regulation 635-40 also prescribes the function of the Temporary Disability Retired List (TDRL).  It provides that an individual may be placed in a TDRL status for a maximum period of 5 years when it is determined that the individual is qualified for disability retirement under Title 10, U.S. Code, section 1201 but for the fact that his or her disability is not stable and the individual may recover and be fit for duty or the degree of severity may increase or decrease so as to warrant a change in the disability rating.  (Individuals in TDRL status are entitled to one half of their basic pay regardless of the disability rating).  The TDRL is used in the nature of a “pending list.”  It provides a safeguard for the Government against permanently retiring a soldier who can later fully recover, or nearly recover, from the disability causing him or her to be unfit.  Conversely, the TDRL safeguards the soldier from being permanently retired with a condition that may reasonably be expected to develop into a more serious permanent disability. A soldier who is determined to be physically fit will not be placed on the TDRL regardless of the severity of the physical defects or the fact that they might become unfitting were the soldier to remain on active duty for a period of time.

15.  Army Regulation 40-501 governs medical fitness standards for enlistment, retention, and separation.  Paragraph 3-42a states that malignant neoplasms which are unresponsive to therapy and paragraph 3-42d states that malignant neoplasms, when on evaluation for administrative separation or retirement the observation period subsequent to treatment is deemed inadequate in accordance with accepted medical principles, are causes for referral to an MEB.  Paragraph 8-23 states that soldiers separating from the Army will receive a separation medical examination if the soldier requests it in writing or if, on review of the medical records, a physician or a physician’s assistant feels an examination is appropriate.  Chapter 2 (physical standards for enlistment), paragraph 2-40 states that benign and malignant tumors, with few exceptions, are causes for rejection.

16.  The National Institutes for Health defines malignancy as cancerous or diseased cells that have the capacity to spread, invade, and destroy tissue (Internet site www.nlm.nih.gov/medlineplus/ency/article/000542.htm).  It defines a neoplasm as a tumor or a spontaneous growth of tissue which forms an abnormal mass.  It grows at the expense of the healthy organism.  The Merck Manual, 16th edition states that “benign” brain tumors that cannot be entirely excised because of size or location are usually lethal.  Thus, the distinction between “benign” and “malignant” is less important for intracranial neoplasms than for systemic cancer. 

17.  National Guard Regulation 600-200 establishes standards, policies, and procedures for the management of ARNG enlisted soldiers in several functional areas including accession and retention.  Paragraph 2-63b states that in-service recruited personnel are not required to take a medical examination provided there is verification of a current physical (within 4 years of the date on the SF 88 and SF 93).  Table 2-1 states that an individual is eligible for enlistment if he or she meets procurement physical fitness standards for Army Regulation 40-501, chapter 2.  Table 2-10, Line A states that a prior service applicant whose last separation was not for medical reasons but who is not medically qualified may receive a medical waiver when the Military Entrance Processing Station (MEPS) recommends the waiver.  The State Surgeon must approve the waiver prior to final approval by the State Adjutant General.

18.  Army Regulation 600-8-1, Part V, dealing with LDIs, provides that an LDI must be conducted in all cases of injury not a result of enemy action.  Paragraph 39-2 states that it is essential to arrive at a determination as to whether misconduct or negligence was involved in the disease, injury, or death and, if so, to what degree.  Depending on the circumstances of the case, an investigation may or may not be required to make this determination.  The LD determination is presumed to be Line of Duty Yes without an investigation in the case of disease except in two instances, one of which is an injury, disease, or medical condition that occurs under strange or doubtful circumstances or is apparently due to misconduct or willful negligence.  Paragraph 41-8(3) states that any physical condition having its inception In Line of Duty during one period of service or authorized training in any of the Armed Forces which recurs or is aggravated during later service or authorized training, regardless of the time between, should be In Line of Duty.  

19.  Title 10, U. S. Code, section 1201, provides for the physical disability retirement of a Regular member (or Reserve Component member on active duty over 30 days) who has at least 20 years of service or a disability rated at least 30 percent under the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD).  The Secretary concerned may retire a member, with retired pay, if he determines that the unfitting disability is based upon accepted medical principles, the disability is of a permanent nature and stable, the disability is not the result of the member’s intentional misconduct or willful neglect and was not incurred during a period of unauthorized absence, not the direct result of armed conflict, or caused by an instrumentality of war.
20.  Army Regulation 135-381 establishes procedures and policies and implements statutory authorities regarding medical, dental, hospitalization, and disability benefits, incapacitation compensation, and death benefits.  Chapter 4 states that section 204, Title 37, U. S. Code provides authority for continuation of pay and allowances under certain circumstances to soldiers who are disabled in the line of duty from injury, illness, or disease.  For the purposes of this regulation such continuation of pay and allowances is referred to as “incapacitation pay.”  Prerequisites for entitlement to incapacitation pay are inability to perform normal military duties or satisfactory demonstration of loss of nonmilitary earned income. On release from active duty or termination of inactive duty training, a soldier may qualify for this entitlement.  Soldiers are entitled to a portion of the same monthly pay and allowances as is provided members of the Active Army with corresponding grade, length of service, marital status, and number of dependents for each period the soldier is unable to perform normal military duties or can demonstrate loss of compensation from nonmilitary income.  Soldiers will not be issued active duty orders in place of incapacitation pay as a means of providing benefits to which they might otherwise not be entitled.  Entitlement to incapacitation pay does not place the member on active duty.

21.  VASRD code 8002, new growth of the brain, states that a 100 percent disability rating will be given when the growth is malignant.  This rating will be continued for 2 years following cessation of surgical, chemotheraputic, or other treatment modality.  At this point, if residuals have stabilized, the rating will be made on neurological residuals according to symptomology (with a minimum rating of 30 percent).

22.  The mission of the Veterans Benefits Administration is to provide benefits and services to veterans and their families in a responsive, timely and compassionate manner in recognition of their service to the nation.  The VA indicated that if a veteran is found to have a service-connected disability rated at least 50 percent, he or she would be eligible for free medical care in a VA facility.

CONCLUSIONS:

1.  Under the regulatory guidance in Army 600-8-1, an LDI should have been initiated when the applicant was first injured (regarding the broken nose and cuts).  It is not so clear that an LDI need have been initiated regarding the brain tumor (since there is normally a presumption of Line of Duty Yes in the case of disease).  However, since the National Guard Bureau Chief Surgeon indicated concern that an LDI was not conducted, it appears it would be appropriate at this point in time to correct the records to show that an LDI was initiated regarding the brain tumor.  

2.  There is no evidence to indicate the applicant’s initial injuries of a broken nose and cuts requiring stitches were the result of his misconduct or willful negligence as there is no evidence that he was detained by civil authorities or that his time spent in the hospital was lost time.  Presumably, if an LDI had been properly initiated concerning these injuries, an informal investigation would have been conducted and his initial injuries would have been determined to be In Line of Duty Yes.  Since Neurosurgery doubted very seriously that his brain tumor was a residual finding from the head trauma, and since the tumor was accidentally (not because it was causing any symptoms) discovered nearly a year after he entered active duty, it appears unlikely that it would have been found to have existed prior to his entry into the service and presumably the separate LDI for the tumor would also have been determined to have been In Line of Duty Yes.

3.  Under the regulatory guidance in Army Regulation 40-501, the applicant should have been referred to an MEB as soon as the “abnormality” was diagnosed as a brain tumor (i.e., “possible glial neoplasm”).  Since the brain tumor caused the applicant to not meet retention standards, the MEB should have referred him to a PEB.  However, it would have been unlikely that the PEB would have found him unfit for duty.  As it was, his tumor was discovered in June 1998 and it appears he successfully continued to perform his duties, with no symptoms resulting from the tumor, until he completed his term of service in November 1999.  

4.  It appears the applicant did not undergo a separation physical.  One was not automatically required, unless he requested it in writing.  However, this appears to have been a case where, had a physician or a physician’s assistant reviewed his medical records, an examination would have been determined to be appropriate.  It does not appear that a separation physical would have revealed any changes in his condition as he was still not experiencing any symptoms but it would have provided a more up-to-date physical examination for others, such as the ARNG, to evaluate.

5.  It appears the applicant was an in-service recruit for the ARNG when he separated from the Regular Army.  As such he was not required to take a medical examination because his current physical, dated September 1996, was less than 4 years old.  Nevertheless, a review of his medical records would have revealed a disqualifying condition.  

6.  The ARNG recruiter was presumably neglectful in not reviewing the applicant’s medical records prior to enlisting him in the ARNG.  The applicant had been asymptomatic for over a year at the time he enlisted in the ARNG and in fact remained asymptomatic for another 18 months.  The issue of the applicant’s erroneous enlistment was raised in March 2002 and as of the end of July 2002 the ARNG has made no effort to separate the applicant for erroneous enlistment. Because of these factors, it appears equitable to determine that the applicant was given a de facto medical waiver to enlist in the ARNG.
7.  Had an LDI been conducted in 1998 and the applicant’s injuries and brain tumor been found to have been incurred In Line of Duty (and he was given a de facto medical waiver to enlist in the ARNG in November 1999 so there would be no question about a possible erroneous enlistment in the ARNG), then the ARNG’s original LOD findings of In Line of Duty would not have been changed to Not In Line of Duty – Not Due to Own Misconduct but would have remained In Line of Duty.  Thereupon, the applicant would have been eligible for processing through the physical disability system.  

8.  The Board believes the ARNG erred in not retaining the applicant on active duty after it was discovered his brain tumor increased in size and was causing symptoms.  He should have been referred to an MEB in June 2001, which in turn would have referred him to a PEB, which in turn most likely would have found him physically unfit to perform the duties of his grade or rank by reason of a malignant brain tumor, rated at 100 percent disabling under VASRD Code 8002.  In hindsight, it appears that a permanent retirement would not have been appropriate as he has survived for more than one year with this condition.  However, he should have been placed on the TDRL with a periodic evaluation due about January 2003.

9.  The Board believes that the ARNG erred again when, if it believed the applicant was erroneously enlisted, it failed to discharge him.  His discharge would have allowed the VA to open a service connection case on him, most likely determining his condition was service connected, which would have enabled him to obtain free medical treatment from the VA.  Correcting the records to place the applicant on the TDRL effective on or about June 2001 would normally require that all incapacitation pay paid to him be reimbursed.  However, the Board presumes he has sizeable medical bills due in large part to Government error.  It would be equitable to allow him to retain any incapacitation pay received in order to offset those bills.

10.  The Board believes that there are still steps the ARNG could take to provide relief to the applicant; however, as a matter of justice and in an effort to avoid further delay, the Board will correct his records.

11.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by:

     a.  showing that two separate LDIs were conducted by informal investigation in July 1998 -- one determined that the applicant’s initial injuries of a broken nose and cuts requiring stitches were In Line of Duty Yes and that the LOD determination was approved and the other determined that the brain tumor discovered incidental to treating his broken nose and cuts was In Line of Duty Yes and that the LOD determination was approved; and

     b.  showing that the applicant was referred to an MEB in August 1998 due to the discovery that he had a brain tumor, subsequently referred to a PEB, and that the PEB found him to be fit for duty.

2.  That the records be further corrected by:

     a.  showing that the applicant was granted a de facto medical waiver for his brain tumor, allowing him to enlist in the Army National Guard;

     b.  showing that the Army National Guard did not release the applicant from active duty for training on 13 June 2001 but retained him on active duty and referred him to an MEB on 14 June 2001; and

     c.  showing that the MEB referred the applicant to a PEB, that the PEB found the applicant to be unfit for duty by reason of a malignant brain tumor with a 100 percent disability rating under VASRD Code 8002, and that he was placed on the TDRL effective 1 July 2001.

3.  That, since the applicant’s brain tumor had been found to have been In Line of Duty Yes in July 1998, the Army National Guard’s initial finding of In Line of Duty Yes was confirmed, in effect allowing him to remain on the TDRL.

4.  That the applicant be afforded the opportunity to undergo a TDRL periodic evaluation as soon as possible.

BOARD VOTE:  

__RVO__  __RTD__  __KWL__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

					        ___Raymond V. O’Connor, Jr.___
		        CHAIRPERSON

INDEX

CASE ID	AR2002072374	
SUFFIX		
RECON		
DATE BOARDED	2002/07/25	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.		
3.		
4.		
5.		
6.