PROCEEDINGS


         IN THE CASE OF:


         BOARD DATE: 23 OCTOBER 2003
         DOCKET NUMBER: AR2002081765


         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
Mr. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Ms. Joann H. Langston		Chairperson
Ms. Margaret K. Patterson		Member
Mr. Arthur A. Omartian		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.

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2. In effect, the applicant requests that her records be corrected to show that she was on continuous active duty from 23 January 2002 until the present, that the orders placing her on active duty for 179 days with an ending date of 23 January 2002 be amended accordingly, that she receive all due pay and allowances from that date, and that she receive a medical evaluation.

3. The applicant was a Reserve officer who was appointed in the Army Nurse Corps as a first lieutenant on 21 September 1989. She was promoted to captain on 20 September 1993. On 24 July 2000 she was notified that she had not been selected for promotion to major. The applicant stated that she has since been nonselected for promotion a second time, resulting in her discharge from the Army Reserve.

4. The applicant was assigned to the 4023d Hospital in Nashville, Tennessee. On 28 July 2001 she lost control of her car while returning to her home from annual training at Fort Campbell, Kentucky. Her car left the road, hit two trees, and flipped over on its roof. The applicant sustained a cervical injury with fractures of the lateral mass and pedicle of C6 with a rotary subluxation of C6 and C7. A formal line of duty investigation revealed that she was treated in the emergency room at North Crest Medical Center in Springfield, Tennessee, for the injury to her neck and upper extremity and released. She continued to have problems, however, and it was felt that the cervical injury was unstable and needed surgical stabilization. She continued to wear a cervical collar to the neck until surgery was performed. Her injuries were determined to be in line of duty. The finding of in line of duty was approved on 23 January 2002.

5. On 19 October 2001 the Total Army Personnel Command at St. Louis published an order placing the applicant on active duty for 179 days, with an ending date of 23 January 2002, for the purpose of an ADME (active duty medical extension). She was to report to her Reserve unit, the 4023d Army Hospital in Nashville, Tennessee, with attachment to Blanchfield Army Community Hospital at Fort Campbell, Kentucky.

6. The applicant provided a timeline of events beginning with her accident on 28 July 2001 through 9 August 2001, citing her constant muscle spasms in her left shoulder and down her left arm, her appointment with a neurosurgeon, and her surgery for anterior discectomy with fusion and bone graft with fixture of titanium plate on 8 August 2001. She stated that she had continued pain and numbness to her arm and still had not been released to work.

7. In a document dated 21 October 2001 the applicant provided a summary of events since her accident, citing her problems with any action being taken by her unit to assist her in initiating a line of duty investigation, extension of active duty orders, and receiving pay. She stated that she received her first pay check on 30 November 2001 retroactive to 28 July 2001. She received her discharge orders, but was informed by Lieutenant "S," the special actions officer at the 81st Regional Support Command (RSC) who was helping her, not to worry in that ADME orders took precedence over all other orders. However, she was informed on 24 January 2002 that her active duty was terminated and she was not entitled to any extension. She stated that she spoke to a Major "M" at the 81st RSC about her evaluation reports and about her discharge. She received her OERs (officer evaluation reports), signed and returned them on 12 July 2002. She has visited the Army Reserve Command Inspector General Office in September and October 2002. She complained of receiving no assistance from members of her unit, stated that she should have been extended on active duty, and said that her discharge was improper and inappropriate because evaluation reports were not completed and submitted, and that she was never informed that she was being considered for promotion.

8. Medical reports that the applicant submits with her application document her treatment for her injuries, to include her C6-C7 anterior cervical diskectomy with interbody fusion in August 2001, and her post-operative treatment and progress. A 23 January 2002 medical report indicated that she was making reasonable progress after her cervical fracture, but that she continued to have dysesthetic pain in her arm, which was particularly bad at night.

9. On 1 March 2002, and again on 18 March 2002, the applicant underwent a cervical epidural steroid injection. A 28 March 2002 report indicates that the first injection met with good results; however, the second injection gave her very little relief from her pain. The pain continued in her thumb and index finger on her left hand. On 29 March 2002 she underwent a third injection.

10. A 9 May 2002 progress report shows that she was diagnosed with neck and arm pain, and that she had carpal tunnel syndrome. In June 2002 she was operated on for both her right and left carpal tunnel syndrome.

11. In an 18 September 2002 memorandum the applicant stated that she was injured in an accident on 28 July 2001 on her way home from annual training. The accident was determined to be in line of duty; however, incompetence and lack of response complicated her ADME and medical care. After her accident she was informed that she had to go to Fort Campbell, Kentucky for an evaluation. She could not drive, and it took over four months for her unit to schedule her for transportation. She was taken to Fort Campbell on 22 January 2002, one day prior to the ending date of her ADME orders. She was informed that because she would not be seen by a doctor or receive a medical board, she would be discharged the following day. The special actions officer at the 81st Regional Support Command (RSC) who was working her case informed her that because she was a two time non-select for promotion, OCAR (Office of the Chief of Army Reserves) would not extend her orders, and she would be discharged on 1 February 2002.
12. The applicant also stated that the lack of officer evaluation reports being rendered on her for three years, coupled with not having the opportunity to attend the resident phase of the advanced course, which she had requested six times during a three-year period, caused her to be not selected for promotion. Additionally, other requests for courses were either not processed or were overridden due to her activation for Operation Desert Shield/Storm. Because of her two-time non-selection for promotion, she was discharged from the Reserve. She states that she never knew that she was eligible for promotion.

13. In a 3 October 2002 letter to the Chief, Army Reserve, she stated that she was in a motor vehicle accident on 28 July 2001, sustaining neck fractures, which were overlooked during her initial treatment, and missed by her primary doctor two days later. Her condition was noted by a neurosurgeon on 2 August 2001. She had surgery on 8 August 2001. She had problems in finding out how to get medical care. It took 5 months to receive an active duty medical extension (ADME). A month after she received ADME orders she was informed that she was to be discharged.

14. In a 9 October 2002 memorandum, the applicant's neurosurgeon in Murfreesboro, Tennessee, stated that the applicant sustained a fractured neck and bilateral nerve root injuries as a result of her accident. He stated that she underwent a cervical stabilization process, and also ended up having bilateral carpal tunnel releases in 2002. She sustained permanent nerve root damage and had chronic pain. She has had studies, which demonstrated nerve root as well as median nerve damage in both upper extremities. He stated that he felt that she would have some form of permanent disability, and might need long-term pain management. He felt that she would not be able to return to her former occupation as an emergency room nurse.

15. The applicant provides a summarization of her medical expenses as follows –

$3397.40 – out of pocket medical expenses as of 28 September 2002
249.20 – out of pocket medical expenses from 29 September 2002 to end of year
2556.34 – out of pocket medication expenses as of 28 September 2002
(receipts total)
1519.29 – out of pocket medication expenses from 28 July 2001 to 31 December 2001
1366.38 – total receipts for medication directly caused from accident on active duty (2002)
641.42 – total receipts for medication as a direct result of accident on active duty (2001)
28360.87 – difference between insurance-tricare paid and hospital billed
4586.20 – approximate out-of-pocket medical bills since 23 January 2002
16. She states that the medical bills presented are since ADME was cutoff, and not all the bills are paid off. Some are on payment plans.

17. She submits documents showing bills for various medical services provided her. Some of these bills show the summary of services provided, and not a request for payment, and some do not show the amount to be paid by her insurance. Some show a current balance, and a payment amount due.

18. She provides a summarization of her monetary losses had she been allowed to remain on active duty for one year, assuming that she was promoted to major in September 2001 - $55551.60, plus thousands of dollars in other allowances. She states that she lost $58280.00 in civilian income from 1 August 2001 to 31 October 2002, and also lost $13000.00 from her savings because she was unable and forbidden by the neurosurgeon to return to work.

19. The applicant provides copies of regulatory documents, which she states supports her argument that the Army failed her because of its violation of the policies and procedures as reflected in those rules.

20. The applicant provides a 16 September 2001 DA memorandum providing procedural guidance for Reserve component soldiers on active duty medical extension (ADME). She provides extracts from U.S.C. Title 10 pertaining to retention of soldiers on active duty for medical care. She provides a copy of DOD Directive Number 1332.18 pertaining to physical disability separation or retirement; and a copy of DOD Instruction Number 1332.38 concerning physical disability evaluation. She provides extracts from four Army regulations which impact on her case.

21. Office of the Deputy Chief of Staff, G-1 Memorandum, subject: Retaining Reserve Component (RC) Members on Active Duty Medical Extension (ADME) provides for the retention of Reserve Component members on active duty when an injury or illness occurred in the line of duty, and which prevents the soldier from performing his/her normal military duty. All Reserve Component soldiers who are on active duty orders or are in an inactive duty status and require medical treatment/evaluation for more than 30 days (inpatient or outpatient), fall under the rules, regulations, and specified entitlements for active duty personnel.

22. Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

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23. Army Regulation 635-40 establishes the Army physical disability evaluation system and sets forth policies, responsibilities, and procedures that apply in determining whether a soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. It provides for medical evaluation boards, which are convened to document a soldier’s medical status and duty limitations insofar as duty is affected by the soldier’s status. A decision is made as to the soldier’s medical qualifications for retention based on the criteria in AR 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 PEB.

24. Physical evaluation boards are established to evaluate all cases of physical disability equitability for the soldier and the Army. It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of soldiers who are referred to the board; to evaluate the physical condition of the soldier against the physical requirements of the soldier’s
particular office, grade, rank or rating; to provide a full and fair hearing for the soldier; and to make findings and recommendation to establish eligibility of a soldier to be separated or retired because of physical disability.

25. Army Regulation 635-40, provides in pertinent part, that an individual
whose normal scheduled date of nondisability retirement or separation occurs during the course of hospitalization or disability evaluation may, with his or her consent, be retained in the service until completion of disability evaluation.

26. In the processing of this case an advisory opinion was obtained from the Office of The Surgeon General. That office stated that based on the available medical documentation it appeared that the applicant did not meet medical retention standards at the time of her separation from the Army and that she should have had, at a minimum, a fitness for duty evaluation prior to her release. The applicant concurred in the advisory opinion.

CONCLUSIONS:

1. The applicant should have been retained on active duty in order to receive a medical evaluation to determine her fitness for retention in the Army. She should now be afforded that opportunity.

2. The applicant may be entitled to reimbursement for some of her medical expenses, less the amounts paid by her insurance company, especially while she was in an active duty status. However, entitlement to any money for medical expenses should be deferred until after the completion of disability evaluation. Reimbursement for any medical expenses may be contingent upon a determination of her fitness for retention in the Army. To make a determination concerning her medical expenses at this time is premature.
3. By the same token, it is inappropriate for the Board to grant the applicant's request to place her on active duty with all pay and allowances from 23 January 2002 until the present date, again, not until after a determination is made of her fitness for retention in the Army.

4. The applicant, in her request, implies injustice concerning her nonselection for promotion to major, resulting in her discharge from the Army; however, she has provided no evidence of any error or injustice; consequently, the Board can make no determination concerning this issue.

5. 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 offering the individual concerned the opportunity to undergo a physical evaluation to determine her fitness for retention in the Army:

         a. by directing the Army Human Resources Command at St. Louis to contact the applicant and arrange, via appropriate medical facilities, a physical evaluation; and

         b. if appropriate, by referral to a MEB and an informal PEB.

2. The Army Human Resources Command at St. Louis is directed to use appropriate travel orders to accomplish the physical evaluation, and if necessary, the MEB and PEB.

3. In the event that a formal PEB becomes necessary, the individual concerned will be issued travel orders to prepare for and participate in consideration of her case by a formal PEB. All required reviews and approvals will be made subsequent to completion of the formal PEB.

4. Subsequent to a final determination in her case concerning her fitness for retention in the Army, the applicant should reapply to this Board concerning reimbursement of any medical expenses or any pay and allowances she feels due her.

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5. That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:

__JHL __ __MKP __ __AAO __ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ___Joann H. Langston____
                  CHAIRPERSON

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INDEX

CASE ID	AR2002081765
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20031023
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	110.03
2.
3.
4.
5.
6.