MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 13 March 2003
         DOCKET NUMBER: AR2002077868

         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. Carl W. S. Chun		Director
Mr. Edmund P. Mercanti		Analyst

The following members, a quorum, were present:

Mr. Thomas A. Pagan		Chairperson
Mr. Roger W. Able		Member
Mr. John A. Kelley		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)

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APPLICANT REQUESTS: In two applications, that she be given retroactive incapacitation pay, and that her records be corrected to show that she was medically separated due to physical unfitness.

APPLICANT STATES: She was denied “due medical process” (presumably the applicant is saying she should have been processed by the Disability Evaluation System, or DES) during Operation Desert Storm. At that time she had provided information to the Fraud Hotline concerning questionable logistics practices and false unit status reports by her unit. Subsequently, she was given an unlawful written directive by her commander and was given a purposely falsified document stating that her injury was psychosomatic.

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

She enlisted in the Army Reserve (USAR) Reserve Officer Training Corp on 24 September 1975. She was commissioned as a second lieutenant, USAR, Medical Service Corps, on 13 January 1978.

She served in the Army National Guard and was promoted to captain. On 1 April 1986, she was discharged from the ARNG and transferred to the USAR Control Group (Reinforcement).

On 5 April 1990, while the applicant was serving on orders for active duty for the period 1 to 13 April 1990, she was treated for right hip pain. She reported to the treating physician that she was injured while carrying suitcases up stairs at a hotel. On the line of duty (LOD) investigation conducted on that injury, her commander stated that her injury was incurred when she was thrown from a horse on 4 April 1990. That LOD investigation was approved.

On 20 November 1990, the applicant was given physical profile restrictions due to osteoarthritis of her right hip.

On 23 November 1990, the applicant was ordered to active duty in support of Operation Desert Shield. She was honorably released from active duty on 25 November 1990. She served a total of 3 days of active duty.

On 22 December 1990, the applicant was given another physical profile for right hip pain.

On 20 January 1991, the applicant was given yet another physical profile for osteoarthritis and manic depression psychiatric illness.

On 4 April 1991, the applicant was treated for osteoarthritis. She informed the physician that this condition was due to an injury she incurred while riding a horse on 27 November 1990.
On 9 July 1991, the applicant was treated for osteoarthritis of her right hip and left knee as well as lower back strain. She reported having injured her right hip and left knee that day, after she had completed physical training. An informal LOD investigation was conducted on that incident which was approved.

On 2 April 1993, the applicant was promoted to major.

In accordance with NIAMS (National Institute of Arthritis and Musculoskeletal and Skin Diseases), osteoarthritis is the most common type of arthritis, especially among older people. Sometimes it is called degenerative joint disease or osteoarthrosis. Osteoarthritis is a joint disease that mostly affects the cartilage. Cartilage is the slippery tissue that covers the ends of bones in a joint. Healthy cartilage allows bones to glide over one another. It also absorbs energy from the shock of physical movement. In osteoarthritis, the surface layer of cartilage breaks down and wears away. This allows bones under the cartilage to rub together, causing pain, swelling, and loss of motion of the joint. Over time, the joint may lose its normal shape. Also, bone spurs--small growths called osteophytes--may grow on the edges of the joint. Bits of bone or cartilage can break off and float inside the joint space. This causes more pain and damage.

People with osteoarthritis usually have joint pain and limited movement. Unlike some other forms of arthritis, osteoarthritis affects only joints and not internal organs. Osteoarthritis is one of the most frequent causes of physical disability among adults. More than 20 million people in the United States have the disease. By 2030, 20 percent of Americans--about 70 million people--will have passed their 65th birthday and will be at risk for osteoarthritis. Some younger people get osteoarthritis from joint injuries, but osteoarthritis most often occurs in older people. In fact, more than half of the population age 65 or older would show x-ray evidence of osteoarthritis in at least one joint. Both men and women have the disease. Before age 45, more men than women have osteoarthritis, whereas after age 45, it is more common in women. Osteoarthritis affects each person differently. In some people, it progresses quickly; in others, the symptoms are more serious. Scientists do not know yet what causes the disease, but they suspect a combination of factors, including being overweight, the aging process, joint injury, and stresses on the joints from certain jobs and sports activities.

Army Regulation 135-381 and Title 37, U.S. Code, section 204, provides for continuation of pay and allowances under certain circumstances to reservists and guardsman who are disabled in line of duty. To receive continuation of pay, referred to as incapacitation pay, reservists and guardsmen must either be unable to perform their normal military duties or be able to show a loss of nonmilitary income due to an injury or disease which was incurred in line of duty. Incapacitation payments are made by the servicing Army finance and accounting office.
The Court of Claims and the Comptroller General of the United States have held that short periods of active duty do not give rise to the presumption of the cause of an illness or disease.

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

1. The applicant’s contention that she should have been processed through the DES during Operation Desert Storm (actually, Operation Desert Shield at that time) is not accepted by the Board. Obviously, the applicant did not incur osteoarthritis during Operation Desert Shield, since she was previously diagnosed with that condition. She was even under written physical profile restrictions for osteoarthritis prior to her entry on active duty for Operation Desert Shield. It is evident that the applicant was quickly determined to be non-deployable based upon her three days of active duty. Since the applicant did not incur her medical condition while on active duty during Operation Desert Shield, there was no requirement for the Army to retain her on active duty to process her through the DES.

2. As for the approved line of duty investigations, the applicant’s first LOD investigation was for right hip pain. However, the circumstances surrounding the cause of that pain isn’t clear. The applicant reported that she was injured while carrying suitcases up stairs at a hotel, but her commander stated that her injury was incurred when she was thrown from a horse. Without clear evidence to show that the applicant did, in fact, injure her hip when she was thrown from a horse, the approved LOD investigation is not, in and of itself, sufficient to grant the applicant incapacitation pay or separate her for physical disability.

3. None of the applicant’s other records of treatment show that the applicant suffered another injury which would cause osteoarthritis.

4. Since the Comptroller General has ruled that short periods of active duty do not give rise to the presumption of the cause of an illness or disease, and since there is no clear evidence that the applicant suffered a traumatic injury which would have caused osteoarthritis while on active duty, there was no basis for paying her incapacitation pay or to separate her for physical unfitness.

5. The applicant has not submitted any evidence, nor does her records reflect, that she was retaliated against for reporting wrongdoings in her unit. However, even if she had submitted such evidence, it would not alter the preceding conclusions.



6. 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

___rwa___ ___tap__ ___jak___ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2002077868
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020313
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	108.03
2.	108.04
3.	128.14
4.
5.
6.