RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  18 December 2007
	DOCKET NUMBER:  AR20070004108 


	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.  


Ms. Catherine C. Mitrano

Director

Mrs. Nancy L. Amos

Analyst


The following members, a quorum, were present:


Mr. John N. Slone

Chairperson

Ms. Marla J. Troup

Member

Mr. Thomas M. Ray

Member

	The Board considered the following evidence: 

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his line of duty (LOD) findings be changed from not in LOD – not due to own misconduct to in LOD (ILOD) and that his indebtedness for erroneous receipt of incapacitation pay be cancelled as a result of this correction.

2.  The applicant states that he has always loved the military and would still be willing to serve if he could, under the right command.  He is still the same person who volunteered for active duty during Operation Desert Shield/Storm.  Personnel within the 94th Regional Readiness Command (RRC) took a personal stance against him.  

3.  The applicant provides a letter (date illegible) from the Defense Finance and Accounting Service (DFAS) and a DFAS-DE Form 0-641 (Statement of Military Pay Account); a DFAS Account Statement; a 94th RRC memorandum, dated       6 March 2006; a Department of Veterans Affairs (VA) certification, dated 5 March 2007; a DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 15 May 1991; a DD Form 689 (Individual Sick Slip), dated     13 June 2003; a DA Form 3349 (Physical Profile), dated 13 June 2003; a DA Form 5181-R (Screening Note of Acute Medical Care), dated 13 June 2003; a DA Form 5181-R, dated 15 June 2003; a DD Form 689, dated 15 June 2003; a DA Form 2173 (Statement of Medical Examination and Duty Status), dated       21 July 2003; a U. S. Army Reserve Command (USARC) Form 46-2-R (Military Physician’s Statement of Soldier’s Incapacitation/Fitness for Duty), dated 8 June 2003; and two USARC Forms 46-2 (Incapacitation Pay Monthly Claim Form), both dated 30 June 2003.

4.  The applicant also provides a legal review, dated 2 July 2004; a record of Temporary Duty (TDY) Dates of Travel from Home to Appointments Reporting to Unit; a DA Form 261 (Report of Investigation Line of Duty and Misconduct Status), date of appointing authority action 23 May 2004; a Headquarters, 10th Mountain Division and Fort Drum memorandum, Subject:  Line of Duty Determination for (the applicant), dated 23 July 2004; a Headquarters, 10th Mountain Division and Fort Drum memorandum, Subject:  Line of Duty Determination for (the applicant) Corrected Copy, dated 19 August 2004; two letters, dated 8 July 2005 and 20 January 2006, from Wells Fargo Home Mortgage; and a letter, dated 30 April 2004, from his company commander. 

CONSIDERATION OF EVIDENCE:

1.  After having had prior service in the Army National Guard, the applicant enlisted in the U. S. Army Reserve (USAR) on or about 23 April 1990 in military occupational specialty 88M (Motor Transport Operator).  He was ordered to active duty during Operation Desert Shield/Desert Storm and served in Southwest Asia from 13 February 1991 to 11 May 1991.  He was released from active duty on 15 May 1991.  He last reenlisted in the USAR on 8 September 2001 for 6 years.  He was a train conductor in his civilian employment.

2.  The applicant entered active duty for annual training on 7 June 2003 for       14 days.

3.  On 13 June 2003, the applicant reported for sick call with complaints of shoulder pain while driving or performing major physical activity, skin irritation on his face after shaving, and headaches off and on.  

4.  On 15 June 2003, the applicant reported for sick call with a complaint of lower back pain.  

5.  On 16 June 2003, the applicant received a letter of reprimand from his battalion commander for being absent without leave and for insubordinate conduct toward a noncommissioned officer.  Later the battalion commander informed the LOD investigating officer (IO) that the applicant was sent home from annual training for being absent without leave in direct violation of a lawful order and because he feared the applicant might be a danger to himself or other members of his unit.

6.  On 18 June 2003, x-rays taken of the applicant’s sacrum and coccyx by civilian doctors was interpreted by the staff radiologist as showing a mildly displaced fracture at the mid-portion of the sacrum and coccyx.  Doctor W___ indicated, “As I suspected major pathology sacrum corresponding to highly tender area.  He has a sacral fracture.  Discussed with radiologist.  Do CT (computed tomography) scan to further define and make sure nothing to indicate pathologic fracture.”

7.  A DA Form 2173, dated 21 July 2003, indicated that the applicant experienced mechanical lower back pain during driver’s training going over rough terrain at a low rate of speed.  The company commander indicated that a formal LOD investigation was not required and that his injury was considered to have been ILOD.

8.  The applicant apparently began to receive incapacitation pay effective June 2003.

9.  The applicant underwent a CT scan on 15 August 2003.  The findings revealed that the bony structures demonstrated no evidence of acute fracture.  The previously noted fracture on the plain film was not well visualized on the current study.  The sacrum had an unremarkable appearance.  The bilateral sacroiliac joints were unremarkable, but the superior aspect of the joints was not included on the study.  The bilateral hip joints were unremarkable.  Soft tissues demonstrated small phleboliths (vein stones) in the pelvis.  

10.  The applicant was seen by Doctor W___ on 10 October 2003.  Doctor W___ noted, “His CT scan oddly did not visualize the fracture seen on the plain films; MRI or bone scan suggested if clin (sic) indicated (punctuation missing in original) The ASSESSMENT/PLAN are that I do think he has had a sacral fracture and am ntoe (sic) sure why the CT did not app (sic) see it as well as plain film.  Will defer to Ortho as to whether or not further imaging studies of clin (sic) value….” 

11.  The applicant was seen by Orthopedics on 18 November 2003.  Doctor A___ indicated that the applicant’s riding in a five-ton vehicle that had a lot of vibration probably created a stress fracture of the sacrum with no acute incident of injury.  It was Doctor A___’s opinion that the applicant had a stress fracture of the sacral ala on the right side and stated, “CT as well as x-ray demonstrate this….”

12.  On 26 February 2004, x-rays taken of the applicant’s lumbosacral spine revealed no acute fractures or dislocations.  Mild narrowing of the disc spaces between L4-L5 and L5-S1 was noted.  The alignment was within the normal limits.  There was an opaque density in the left side of the pelvis which could have been due to stone or phlebolith.  

13.  On 9 March 2004, the applicant was counseled concerning his current medical status.  Based on his previous and current medical conditions and the results of his physical, he was being referred to a Medical Evaluation Board.  

14.  On 30 March 2004, the Deputy Group Commander, 167th Support Group (Corps), appointed an Army Regulation 15-6 IO to investigate the injuries that the applicant incurred on 13 and 15 June 2003 and to perform an LOD investigation to investigate the facts surrounding both injuries.  

15.  On 14 April 2004, an MRI taken of the applicant’s lumbar spine without contrast, and compared to plain films dated 26 February 2004 and a CT dated  15 August 2003, revealed no evidence of a fracture of the sacrum.  The iliac crests both showed linear regions of decreased signal intensity that were bilaterally symmetric on all imaging sequences.  The physician stated that the possibility of a remote healed trauma could not be entirely excluded but there was no evidence to suggest active or acute fracture.  
16.  On 18 May 2004, the IO concluded that the applicant’s injury identified on  15 June 2003 did not incur ILOD.  The IO stated that the applicant stated during his interview with the IO (on 7 April 2004) that he was not sure when the injury itself happened and he did not remember any specific impact that may have been the cause of it.  The applicant stated he assumed it had been during drivers training on 14 June 2003, although he did not realize it until the next day.  When he was examined at the VA Hospital on 18 June 2003, he told the treating physician that he had been experiencing back pain for about a week.  The IO stated that would have put the day of the injury on or about 11 June 2003, contradicting what he told the IO on 7 April 2004.  When questioned as to how  he injured his back while being treated for back pain at Caritas Hospital on          2 October 2003, the applicant claimed he had sustained a sacral fracture while giving artillery instruction in the military.  The case was made more problematical by the fact the applicant was sent home not because of medical issues but due to disciplinary reasons.  

17.  The IO further stated that another issue that had to be addressed was whether or not the stated injury even occurred.  Doctor W___ explained to the IO that he had originally diagnosed the sacral fracture based on the x-ray taken on 18 June 2003.  After the applicant did not seem to show adequate improvement, he requested a CT scan of the fracture, which took place on “15 Aug.”  (The applicant had questioned this statement, annotating the IO’s findings, “What year? 2004?”  However, as the IO’s investigation was completed in May 2004, the self-evident answer is “15 August 2003,” which is also what the evidence of record indicated.)  The CT scan concluded that there was no evidence of the fracture that had been indicated by the prior x-ray.  The doctor who conducted the CT recommended an MRI (magnetic resonance imaging) if his condition did not seem to improve.  Over the next few months the applicant claimed little if any improvement after attending physical therapy.  Doctor W___ then ordered an MRI and sent the applicant to an Orthopedics Specialist, Doctor R___, to interpret the MRI.

18.  The IO stated that Doctor R___ concluded that not only was there no sacral fracture there also was no evidence from the test that suggested there ever had been a fracture.  The IO asked Doctor R___ about the discrepancies, and he stated that the CT and MRI were much more accurate and reliable than x-rays.  He equated an x-ray as looking down at an object from space and an MRI as looking at the same object standing on the ground.  Doctor R___ also stated that when there has been a fracture there should be some scar tissue or evidence of trauma that would show up during the CT or MRI.  None was present in the applicant’s case.  

19.  In his interview with the IO, Doctor W___ claimed that a broken sacrum was not totally ruled out by the MRI but admitted there was no evidence supporting it, either.

20.  On 19 May 2004, the local staff judge advocate reviewed the IO’s LOD findings and determined that there was substantial evidence to support a “Not in LOD – Not Due to Own Misconduct” determination.  

21.  On 21 May 2004, the applicant was given 30 days to respond to the findings.

22.  The applicant did not respond to the IO’s report.  

23.  A DA Form 261, date of appointing authority’s action 23 June 2004, indicated that the applicant’s LOD was determined by the final approval authority to be “Not in LOD – Not Due to Own Misconduct.”  

24.  On 2 July 2004, counsel for the applicant appealed the findings of the final approval authority.  Counsel contended that the IO ignored clear and convincing medical evidence that the applicant sustained a low back injury while on annual training.  He reported to sick call for low back pain following operation of a military vehicle over rough terrain.  His commander indicated on the DA Form 2173 that the injury was ILOD and that no formal LOD investigation would be required.  He was sent home after being examined.  Only two days later he was examined by a civilian doctor and diagnosed with a fracture of his sacrum as a result of a military trauma.  Counsel stated that the diagnosis may have been changed following additional diagnostic studies; however, that did not change the fact that the applicant sustained an injury while on active duty.  The IO did not present any medical evidence that contradicted that the applicant sustained a traumatic low back injury while on annual training.  The IO could question the severity of the injury, such as whether a fracture actually occurred, but that did not change the fact that an injury occurred.  

25.  By memorandum dated 23 July 2004, the Deputy Assistant Chief of Staff, G1/AG, 10th Mountain Division reviewed the applicant’s LOD investigation for completeness and determined the findings to be ILOD.

26.  By memorandum dated 19 August 2004, the Deputy Assistant Chief of Staff, G1/AG, 10th Mountain Division changed the LOD findings from ILOD to ILOD EPTS (existed prior to service) – service aggravation – this episode only.  

27.  On 3 September 2004, the applicant’s company commander indicated that the applicant was unable to perform his military duties as a Motor Transport Operator and recommended he be discharged through the medical board process.  

28.  An undated 94th Regional Support (sic) Command MMRB (MOS Medical Retention Board) Packet Checklist indicated that the applicant did not submit any documents of his physical ability to adequately perform his military duties except for a Standard Form 507 from his physical.  

29.  A 94th RRC memorandum, dated 6 March 2006, indicated the applicant would be referred to the Physical Disability Evaluation System for diagnoses of fractured sacrum, left rotator cuff pain, left arm nerve pain, and chronic bilateral knee pain.  

30.  Effective 8 March 2006, the applicant was honorably discharged from the USAR.  The reason for his discharge cannot be determined. 

31.  A Statement of Military Pay Account, dated 8 March 2006, indicates the applicant had a debt of $20,794.28, the result of a determination that he was not authorized incapacitation pay.  

32.  The applicant provided a letter from DFAS (date illegible) indicating that the 94th RRC determined that his injuries were not to the extent that would have authorized compensation in the form of incapacitation pay.  

33.  The applicant provided a VA letter, dated 5 March 2007, certifying he was awarded a 10 percent disability rating for a sacroiliac injury and weakness and a  10 percent disability rating for a condition of the skeletal system.

34.  Army Regulation 600-8-1 (effective 17 October 1986, revised in 1994; however, the 1986 version was still used as the LOD authority at the time of the applicant’s June 2003 LOD findings), chapters 39 through 41, dealing with LOD investigations, provided that an LOD determination was presumed to be ILOD without an investigation except in certain specified instances, including when   the injury, disease, or medical condition occurred under strange or doubtful circumstances or when a formal investigation was requested or directed.

35.  Army Regulation 600-8-1, paragraph 41-8e stated that if an LOD finding was required, information from the member’s medical records would be used to support a finding that an EPTS condition was or was not aggravated by military service.  If an EPTS condition was aggravated by military service, the finding would be “in line of duty.”  If an EPTS condition was not aggravated by military service, the finding would be “not in line of duty – not due to own misconduct.”

36.  Army Regulation 600-8-1, paragraph 41-8f(1) stated a member of the Army was presumed to have been in sound physical and mental condition on entering active service or authorized training.  To overcome this, it must have been shown by substantial evidence that the injury or disease, or condition causing it, was sustained or contracted while neither on active duty nor in authorized training.  Paragraph 41-8f(2) stated that specific findings of natural progress of the pre-existing injury or disease, based upon well-established medical principles, as distinguished from medical opinion alone, were enough to overcome the presumption of service aggravation.

37.  Army Regulation 600-8-1, as pertains to LOD investigations, was superseded by Army Regulation 600-8-4 (Line of Duty Policy, Procedures, and Investigations) effective 15 May 2004.  However, the new regulation merely republishes the guidance for LOD determinations that was previously omitted from Army Regulation 600-8-1 as revised in 1994.

38.  Army Regulation 135-381 (Incapacitation of Reserve Component Soldiers) establishes procedures and policies and implements statutory authorities regarding medical, dental, hospitalization, and disability benefits, incapacitation compensation, and death benefits, as well as reporting requirements on these entitlements for Reserve Component (RC) Soldiers.

39.  Army Regulation 135-381, paragraph 3-2 states that, in order to qualify for Army disability benefits, Soldiers must have incurred or aggravated an injury, illness, or a disease condition while in a duty or travel status.  Paragraph 3-2 states a finding that the injury, illness, or disease was incurred or aggravated in the line of duty is mandatory to qualify for benefits.  

40.  Paragraph 3-5 states RC Soldiers who are disabled from injury, illness, or disease while on active duty orders for more than 30 consecutive days are eligible for the same disability benefits as their Active Army counterparts.  

41.  Army Regulation 135-381, paragraph 4-1e states prerequisites for entitlement to incapacitation pay are inability to perform normal military duties or satisfactory demonstration of loss of nonmilitary earned income.  In the latter case, the burden to prove loss rests with the Soldier.  

42.  Army Regulation 135-381, paragraph 4-1g states 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. 

43.  Department of Defense Instruction (DODI) 1241.2 (Reserve Component Incapacitation System Management), dated 3 May 2001, paragraph 1 states this Instruction implements policies to, in part, provide pay an allowance to those members while being treated for or recovering from a Service-connected injury, illness, or disease, or who demonstrate a loss of earned income as a result of an injury, illness, or disease incurred or aggravated ILOD.

44.  DODI 1241.2 paragraph 6.3.2 states incapacitation pay in any particular case may not be made for more than 6 months without review of the case by the Secretary concerned to ensure that continuation of military pay and allowances is warranted under this Instruction, and to determine whether the member should be referred to the Disability Evaluation System.  Such review shall be made every 6 months.

45.  DODI 1241.2, paragraph 6.3.2.1 states a member who remains not fit to perform military duty 1 year after the initial date when the injury, illness, or disease was first incurred or aggravated shall be referred to the Disability Evaluation System if the member is not projected to be fit for duty within the next 6 months.)

46.  Information obtained from the National Institutes of Health internet cite medlineplus.gov indicated that stress fractures are tiny cracks in a bone.  Stress fractures are caused by the repetitive application of force, often by overuse, such as repeatedly jumping up and down or running long distances.  Stress fractures also can arise from normal use of a bone that has been weakened by a condition such as osteoporosis.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was originally granted incapacitation pay based upon an      LOD finding of ILOD.  On 23 June 2004, his LOD finding was changed to Not ILOD, Not Due to Own Misconduct.  This is the finding that is shown on the DD Form 261.  On 19 August 2004, his LOD finding was again changed, to ILOD EPTS – service aggravation – this episode only.  His incapacitation pay was then recouped based upon this revised LOD finding.

2.  There is some confusion as to what injury the applicant incurred and when.  In June 2003, a doctor read x-rays of his back to indicate he had a fractured sacrum.  A CT scan taken on 15 August 2003 indicated no evidence of an acute fracture of the sacrum, the previously noted fracture on the x-ray was not well visualized on the CT, and the sacrum had an unremarkable appearance.  In 

November 2003, an orthopedic doctor indicated that the applicant’s riding in a five-ton vehicle that had a lot of vibration probably created a stress fracture of the sacrum with no acute incident of injury and opined that the applicant had a stress fracture of the sacral ala on the right side, stating, “CT as well as x-ray demonstrate this….”  In April 2004, an MRI taken of the applicant’s lumbar spine revealed no evidence of a fracture of the sacrum; however, the physician stated that the possibility of a remote healed trauma could not be entirely excluded.

3.  Since it was/is so hard to diagnose an acute fractured sacrum in the applicant’s case, the orthopedic doctor’s diagnosis of a stress fracture appears to have been a reasonable diagnosis.  However, since stress fractures are caused by the repetitive application of force, it does not appear to be reasonable to presume that the fracture was incurred during his one day of driving at low speed over rough terrain.  Since his civilian occupation was train conductor, it is more reasonable to presume that the fracture was incurred as a result of his civilian occupation and was only aggravated while he was on annual training in June 2003.

4.  Nevertheless, the applicant’s case has merit.

5.  In order to qualify for incapacitation pay, both Army Regulation 135-381 and DODI 1241.2 require only that Soldiers must have incurred or aggravated an injury, illness, or a disease condition while in a duty or travel status.

6.  By memorandum dated 19 August 2004, the Deputy Assistant Chief of Staff, G1/AG, 10th Mountain Division changed the LOD findings from ILOD to ILOD EPTS – service aggravation – this episode only.  (The governing regulation does not provide for a caveat of “this episode only.”)  It appears that DFAS may have recouped the applicant’s incapacitation pay merely because the DD Form 261 was not corrected to show this finding instead of the finding Not ILOD, Not Due to Own Misconduct.

7.  Based on the fact the final action of the approval authority was that the applicant’s injury was service aggravated, the DD Form 261 with a date of action by appointing authority of 23 June 2004 should be corrected to show an approved LOD finding of ILOD EPTS – Service Aggravated.  Based upon this correction, the applicant’s debt for overpayment of incapacitation pay should be cancelled and any incapacitation pay recouped from him should be returned to him as an erroneous collection.


BOARD VOTE:

__jns___  __mjt___  __tmr___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: 

     a.  correcting the DD Form 261 pertaining to him, with a date of action by appointing authority of 23 June 2004, to show an approved LOD finding of ILOD EPTS – Service Aggravated; and

     b.  upon completion of the above correction, cancelling his debt for overpayment of incapacitation pay and returning to him any incapacitation pay recouped from him as an erroneous collection.




__John N. Slone_______
          CHAIRPERSON




INDEX

CASE ID
AR20070004108
SUFFIX

RECON

DATE BOARDED
20071218
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
122.00
2.
128.10
3.

4.

5.

6.