IN THE CASE OF:	  

		BOARD DATE:	       10 February 2009

		DOCKET NUMBER:  AR20080010591 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that he receive a Line of Duty (LD) determination for an injury that occurred in 1990.

2.  The applicant states that he was on active duty from 6 June 1990 to 31 August 1990 as an enlisted member of the California Army National Guard (CAARNG) and that he underwent a dental examination on 29 August 1990 at Vandenberg Air Force Base (AFB), CA, which involved probing and picking throughout the mouth and gums.  Nine day later, on or about 8 or 9 September 1990, during weekend drill, his right hip was throbbing with pain and he was subsequently admitted to the San Luis Obispo General Hospital, CA, where he underwent surgery to remove bacteria that had lodged in his hip pocket.  He adds that he was unaware of the LD process at the time because the injury was related to bacteria.  However, it was determined years later, during an evaluation at Fort Lewis, Washington, in 2004, that the dental manipulation or dental bacteremias was the most likely cause of his septic hip infection.  It was evident after a careful examination through X-rays and magnetic resonance imaging (MRI) that he suffered from right hip pain or osteoarthritis.  This discovery caused him to request an LD determination through the CAARNG; however, the Chief of Medical Services, CAARNG, determined in June 2005 that there was insufficient medical evidence to support his claim. 

3.  The applicant provides the following additional documentary evidence in support of his request:

	a.  reconstructed DA Form 2173 (Statement of Medical Examination and Duty Status), dated 15 September 1990;

	b.  two DA Forms 2823 (Sworn statement), dated 15 September 1990 and 14 October 1990; 

	c.  memorandum, dated 7 June 2005, Joint Forces Headquarters, CAARNG, Sacramento, CA, subject:  Line of Duty;

	d.  memorandum, dated 14 June 2005, from the applicant to the Joint Forces Headquarters, CAARNG, Sacramento, CA, subject:  Response and Re-Determination to Line of Duty; 

	e.  medical statement, dated 2 August 2005, by Dr. Fxxxr;

	f.  Letter, dated 18 August 2005, from the applicant to Dr. Sxxxxxxxr for determination of cause;

	g.  medical statement, dated 21 August 2005, by Dr. Sxxxxxxxr;

	h.  Patient Needs and Health Assessment, dated 4 November 2004;

	i.  DA Form 3349 (Physical Profile), dated 4 November 2004;

	j.  patient medical records, San Luis Obispo General Hospital, CA, dated on miscellaneous dates in September 1990;

	k.  email exchange, dated 23 August 2005, subject:  Need your help on Dental Terminology; 

	l.  dental records, dated on miscellaneous dates throughout his military career;

	m.  Orders 110-9, published by the State of California, Office of the Adjutant General, Sacramento, CA, on 24 May 1990, ordering the applicant to annual training at Camp San Luis Obispo, CA for 87 days during the period 6 June to 
31 August 1990;

	n.  DA Form 2139 (Military Pay Voucher) for the pay period from 6 June to
31 August 1990;


	o.  JUMPS-Army Leave and Earnings Statements (LESs) for the periods       1-31 July 1990, 1-31 August 1990, and 1-30 September 1990; 

	p.  National Guard Bureau (NGB) Form 23B (ARNG Retirement Points History Statement), dated 14 May 2008;

	q.  NGB Form 22 (Report of Separation and Record of Service), dated
31 December 1994;

	r.  DD Forms 214 (Certificate of Release or Discharge from Active Duty), dated 29 September 2004, 13 September 2006, and 19 April 2007;

	s.  Extract of Department of Defense (DOD) Directive Number 1241.1, subject:  Reserve Component Medical Care and Incapacitation Pay for Line of Duty, dated 28 February 2004;

	t.  Extract of Army Regulation 600-8-4 (Line of Duty Policy, Procedures, and Investigation), dated 15 April 2004; and

	u.  Various internet printouts regarding bacteria, bacteremia, septic shock, infectious arthritis, dentistry, and infection control in dental health care.  

4.  The applicant submitted a statement of medical opinion regarding septic arthritis, authored by Dr. Mxxxxxxa, dated 10 December 2008.

5.  The applicant submitted a self-authored letter titled "Medical and Background Statement of Fact as of 13 December 2008."

6.  The applicant submitted a newly reconstructed DA Form 2173, dated
30 October 2008.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, 
has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant’s records show he enlisted in the Regular Army on 11 August 1984.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Infantryman).  He was honorably released from active duty on 13 June 1987 and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining Reserve obligation.  The highest rank he attained during this period of military service was specialist four (SP4)/E-4.

3.  On 15 June 1987, the applicant enlisted in the CAARNG and was subsequently awarded MOS 71L (Administration Specialist), assigned to Headquarters and Headquarters Company, 2nd Brigade, 40th Infantry Division, CAARNG, San Diego, CA, and was promoted to sergeant (SGT)/E-5.  

4.  On 24 May 1990, the applicant was ordered to annual training at Camp San Luis Obispo, CA for a period of 87 days, from 6 June 1990 to 31 August 1990.  He was attached to Detachment 2, State Area Command (STARC).  A STARC is a mobilization entity in each state and territory.  It organizes, trains, plans, and coordinates the mobilization of ARNG units and elements for state and federal missions.  The STARC is responsible for emergency planning and response using all ARNG resources within its jurisdiction.  It directs the deployment and employment of ARNG units and elements for domestic support operations, including military support to civil authorities.  When the ARNG is in a nonfederal status, the governor serves as commander-in-chief of the ARNG in his state or territory and exercises command through The State Adjutant General (TAG). 

5.  On 29 August 1990, the applicant underwent a periodic type-3 dental examination at Vandenberg AFB, CA, that included X-rays and probing of his periodontal pockets as well as home care instructions.  

6.  The applicant’s San Luis Obispo General Hospital medical records show that on 10 September 1990, the applicant developed severe pain in his right hip.  He presented himself at the emergency room where initial X-rays of the right hip were negative except for some slight radiolucency in the lateral aspect of the femoral head, consistent with mild cystic change.  Hip aspirate was conducted and revealed 10 cc of cloudy colored fluid.  He subsequently underwent anterior 
right hip joint arthrotomy for drainage of phyarthrosis and insertion of drain, right hip joint.  The attending physician noted that the applicant’s problem was that of nonarticular arthritis involving the hip; however, etiology (the causes or origin of disease, the factors which produce or predispose toward a certain disease) remained unclear.  It was also noted on the report that his only positive potential factors for infection of the hip were a very minimal dental teeth cleaning prior to admission and unprotected sexual intercourse.  The report further indicated that the applicant’s wound healed without delay and he developed no external evidence of infection and was discharged on 17 September 1990 with a final diagnosis of septic arthritis of the right hip.

7.  On 31 December 1994, the applicant was honorably discharged from the CAARNG and reassigned to the USAR Control Group (Reinforcement).  On      11 June 1999, he enlisted in the Missouri Army National Guard (MOARNG) and was assigned to the 935th Support Battalion, MOARNG, Springfield, MO.  However, on 14 August 1999, he accepted an interstate transfer to the CAARNG. 

8.  On 1 February 2000, the applicant was ordered to full time National Guard duty (FTNGD) in an Active Guard Reserve (AGR) status for a period of 3 years and was assigned to Camp Roberts Maneuver Training Center, CA.  However, he was honorably released from active duty to the control of his CAARNG unit on 15 December 2000.

9.  On 12 July 2001, the applicant was appointed as a second lieutenant in the Finance Corps of the CAARNG and on 12 July 2003, he was promoted to first lieutenant.  He was subsequently ordered to active duty in support of Operation Noble Eagle on 15 September 2003, completed 1 year and 15 days of active Federal service and was honorably released from active duty to the control of his ARNG unit on 29 September 2004.

10.  On 15 November 2004, he was again ordered to active duty in support of Operation Enduring Freedom.  He was promoted to captain on 14 October 2005, served in Djibouti from 18 April 2006 to 5 September 2006, and was honorably released from active duty to the control of his ARNG unit on 13 September 2006.

11.  On an unknown date in 2005, the applicant submitted a request to the Joint Forces Headquarters, CAARNG, Sacramento, CA, to initiate an LD report for his September 1990 incident.

12.  On 4 June 2005, the State Surgeon of the CAARNG recommended a "NLOD (Not Line of Duty)" and noted that after reviewing the medical records and the claim related to 15 years ago, he found no evidence that the applicant had dental 
cleaning which by itself is not a risk factor for septic joint hip.  He also noted that no organism isolated etiology of events was clear, but there was no medical evidence [that] it was related to any aspect of his limited military service at this time.

13.  On 7 June 2005, by memorandum, the Joint Forces Headquarters G-1, CAARNG, notified the applicant that his request to initiate an LD report for the incident in September 1990 was returned without action.  The G-1 further stated that:

The basis for a line of duty report is a commander’s official report of a Soldier’s injury/illness while in a military duty status, supported by medical documentation and statements from the treating physician and/or witnesses to the incident.  It appears that you have completed the DA Form 2173 (which must be completed by the unit commander) and backdated official documents that were recently received.  Due to elapsed time since the incident (15+ years) it is not possible to obtain additional information/statements.  Your request was also reviewed by the State Surgeon.  He concurs that there is insufficient medical evidence to support your claim. 

14.  An advisory opinion was obtained on 30 September 2008 in the processing of this case.  The Chief, Personnel Division, Appeals and Analysis, National Guard Bureau, Arlington, VA recommended approval of the applicant's request in so much as the CAARNG completes a formal LD investigation of the injury in question.  The Chief further added that:

	a.  The applicant's case is complicated and a significant amount of time has elapsed since the incident in question; however, a careful and thorough consideration of LD determination must always be completed.  The results of the determination can have a significant long term effect on a Soldier’s ability to obtain treatment and benefits related to a disease or injury.  Army Regulation 600-8-4, chapter 2, paragraph 1 states that a person stands to lose substantial benefits as a consequence of his or her actions; therefore, it is critical that the decision to categorize injury, disease, or death as NLOD only be made after following the deliberate, ordered procedures described in this regulation.  In the applicant's case, there is sufficient documentation to warrant a formal LD investigation related to the infection of his hip joint.  The CAARNG State Surgeon states in his memorandum, dated 19 September 2008, that the infection has three associated risk factors with the dental procedure being least likely; however, there is at minimum a chance the infection could have originated with the dental procedure.

	b.  Army Regulation 600-8-4, Chapter 3, Paragraph 4d states that a formal LD investigation is required if the injury, disease, or death occurred under unusual or doubtful circumstances; or if the person affected by the investigation (to include next of kin) requests one; or the complexity of the case warrants one.  The applicant's case appears to meet these criteria and a formal LD investigation was requested by the applicant in 2005.  The request was returned without action by the CAARNG because of the 15-year elapsed time since the injury; however, Army Regulation 600-8-4, chapter 3, paragraph 4d states line of duty actions should be completed within the time limits given in tables 3–1 and 3–2.  When an LD investigation, either formal or informal, is not completed within the given time, the reasons the report is late should be made part of the remarks section of the DA Form 2173 for informal reports and as part of the investigating officer’s comments on DD Form 261 (Report of Investigation, Line of Duty and Misconduct Status) for formal reports.  These comments can be expanded upon as necessary by the appointing authority, reviewing authority, or final approving authority.  The mere failure to complete an action within the prescribed time or the failure to provide reasons the report is late is not a basis to disapprove, reverse, or change an otherwise proper determination. 

	c.  In addition, Army Regulation 600-8-4, chapter 2, paragraph 2f states as a reason for an LD investigation to determine whether a veteran or his or her survivors or family members are eligible for certain benefits, the Department of Veterans Affairs (DVA) makes its own determinations with respect to an LD.  These determinations rest upon the evidence available.  Usually this consists of those facts that have been officially recorded and are on file within the Department of the Army, including reports and LD investigations submitted in accordance with the provisions of this regulation.  Statutes governing these benefits generally require that disabling injury or death be service-connected, which means that the disability was incurred or aggravated in LD.

	d.  By the applicant's own admission, most of the documentation provided by him was reconstructed at a later date from memory and available data and is most likely inadmissible in the formal LD determination.  Most importantly is the DA Form 2173, dated 10 September 1990, for the hospitalization beginning on 9 September 1990 and witness statements which appear to have been produced at a later date and back-dated to 1990.  The LD determination will likely be based on available information directly relating to the civilian medical care provided from 9 through 17 September 1990.

15.  On 1 October 2008, the applicant was furnished with a copy of this advisory opinion.  He requested and was granted an extension through 17 December 2008 to submit a rebuttal, if applicable. 

16.  On 13 December 2008, the applicant submitted a memorandum to the ABCMR.  He did not clearly state his concurrence or non-concurrence with the advisory opinion but rather restated his original request that he is requesting approval for a line of duty, dated September 1990, and that a line of duty was not submitted during the period of injury/infection due to the lack of understanding of the line of duty process concerning this specific type of injury/infection.  He further attached an information flow titled "Medical and Background Statement of Fact as of 13 Dec 2008" that shows the following:

	a.  From 6 Jun 1990 through 31 Aug 1990, 87 days of ADT; fact supported by his LES and military orders;

	b.  From 1 September 1990 to 7 September 1990, 7-day window not on orders:  Within and outside this 7-day window it is more than likely that the hip infection manifested itself as stated by the medical authorities within their statements.  These facts are supported by medical research shown on Dr. Fxxxr, Dr. Sxxxxxxxr, and Dr. Mxxxxxxa’s letters, and dental records;

	c.  From 8 September 1990 to 9 September 1990, 2 days of Weekend Drill or Battle Assembly.  This fact is supported by the LES and sworn statements;

	d.  From 10 September 1990 to 17 September 1990, he was hospitalized for septic hip infection.  He states that this fact is supported by hospital records obtained from General Hospital and from Dr. Fxxxxr's Office, Surgeon of record;

	e.  The NGB recommends approval of the request in so much as the CAARNG completes an LD investigation of the injury in question as stated in the advisory opinion letter, dated 30 September 2008;

	f.  Dr. Fxxxxr, M.D, Orthopedic Surgeon, stated that "It is known that bacteremia can result from dental procedures, including probing of the gums.... However, it is more likely than not that he had a bacteremia which resulted in a monarticular septic arthritis of the right hip as all other etiologies were ruled out” (Letter dated 2 August 2005), and “the patient was seen in internal medicine and rheumatologic consultation by Dr. Sxxxxxxer who advised multiple tests to rule out such diseases as Lyme disease, rheumatoid arthritis, gonorrheal infections and AIDS.  All cultures and all studies were negative” (Discharge Summary Page 3, dated 17 September 1990);

	g.  Dr. Sxxxxxxer, M.D., F.A.C.P., F.A.C.R., Internal Medicine Specialist, stated “Now we have not only the data from the original complaint and infection, but also the benefit of 15 years in which the patient has displayed no evidence of 
systemic disease, generalized by rheumatic illness, or autoimmune disorder. With this information, it is clear that the most likely cause of his past septic arthritis is seeding from the mouth due to dental manipulation (Letter, dated 21 August 2005); and

	h.  Dr. Mcxxxxxa, M.D, F.A.C.P., F.A.C.E.P., Board Certified Infectious Disease Specialist, stated “There are clinical features of disseminated gonococcal  infection (DGI) and gonococcal arthritis which distinguish it from non-gonococcal arthritis, and which further illustrate how very unlikely it is, that [Applicant] had gonococcal arthritis.  To get gonococcal arthritis, you first need to have DGI, and most cases typically present with a triad of dermatitis, tenosynovitis and migratory polyarthritis.  A septic gonococcal monoarthritis without this syndrome is unusual, and hip involvement is also rare.  DGI is four times more common in women, and more common in lower socioeconomic groups, nonwhites, men having sex with men, and illicit drug use.  [Applicant] did not fit any of these characteristics, or show any of these additional signs or symptoms….  Conclusion: …. However, given the historical and clinical features of [Applicant's] case, the evidence to support a nongonococcal septic arthritis caused by the dental exam of August 29, 1990 is overwhelming.  More likely than not, [Applicant's] septic right hip was the direct result of the dental examination on August 29, 1990” (Letter dated 10 December 2008).

17.  Army Regulation 600-8-4 prescribes policies and procedures for investigating the circumstances of disease, injury, or death of a Soldier and provides standards and considerations used in determining line of duty (LD) status.  Paragraph 1-7 of this regulation states that the Chief, National Guard Bureau (CNGB) will be responsible for the LD investigation process within the ARNG and act in the name of the Secretary of the Army (SA) as the final approving authority for the ARNG except for those Soldiers in a Federalized status or attending an Active Army Service School.  This authority may be delegated to a civilian employee whose regularly assigned duties are equal to the duties normally assigned field grade officers or field grade officers on duty with the NGB.  The CNGB may further name an alternate if the principal designee is absent.  The alternate will be a field grade officer or a civilian employee of the NGB whose regularly assigned duties are equal to the duties normally assigned field grade officers.  All delegations will be in writing and will remain valid until revoked in writing.  To satisfy legal review during appeals, a copy of the delegation document will be included in all cases where delegated authority has been exercised.  State TAGs function as the reviewing authority for ARNG.

18.  The General Court-Martial Convening Authority (GCMCA) acts as final approving authority for formal LD investigations on behalf of the SA and reviews LD investigations for compliance with this regulation.  He/she may delegate final approving authority in writing to a field grade officer on the staff of the GCMCA.  A copy of the delegation document will be included in all cases where delegated authority has been exercised.  He/she may also request approval from Headquarters, Department of the Army (HQDA) (AHRC–PEZ) that the final approving authority be a general officer in the chain of command who has access to military legal advice but does not have GCMCA.

19.  The LD appointing authority is normally the Special Court-Martial Convening Authority (SPCMCA) for the Soldier who is the subject of the LD investigation. For the ARNG, the LD appointing authority should be a commander of at least a battalion- or squadron-size unit to which the Soldier is assigned or attached at the time of the incident.  The appointing authority may approve informal LD investigations except within the ARNG.  The appointing authority may delegate all duties and responsibilities to the unit S–1 or other appropriate staff officer.  All delegations will be in writing and will remain valid until revoked in writing.  All delegations will be included with the LD investigation report.  If the incident occurs while the Soldier is away from his or her unit (for example, on leave, in transit, absent without leave (AWOL), the nearest Army unit with an SPCMCA will appoint and conduct the investigation.  For ARNG Soldiers who are not Federalized and/or not attending an Active Army Service School, the parent unit is responsible for the investigation.  During a period when the Soldier and his or her unit are training or on another exercise away from the parent installation, the unit commander and the parent installation are responsible for conducting the investigation.  The host casualty area commander (CAC) and Medical Treatment Facility (MTF) commander will provide supporting documentation as requested. The unit commander ensures the DA Form 2173 is completed promptly and forwarded through channels to the appointing authority.

20.  Line of duty investigations are conducted essentially to arrive at a determination of 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 LD investigation may or may not be required to make this determination.  The LD determination is presumed to be "LD YES" without an investigation in the case of disease, except in certain situations, in the case of injuries clearly incurred as a result of enemy action or attack by terrorists, and in the case of death due to natural causes or while a passenger in a common commercial carrier or military aircraft.

21.  Investigations can be conducted informally by the chain of command where no misconduct or negligence is indicated, or formally where an investigating officer is appointed to conduct an investigation into suspected misconduct or negligence.  A formal LD investigation must be conducted in the cases of injury, disease, death, or medical condition that occurs under strange or doubtful circumstances or is apparently due to misconduct or willful negligence; injury or death involving the abuse of alcohol or other drugs; self-inflicted injuries or possible suicide; injury or death incurred while AWOL; injury or death that occurs while an individual was en route to final acceptance in the Army; death of a USAR or ARNG Soldier while participating in authorized training or duty; injury or death of a USAR or ARNG Soldier while traveling to or from authorized training or duty; when a USAR or ARNG soldier serving on an active duty (AD) tour of 30 days or less is disabled due to disease; in connection with an appeal of an unfavorable determination of abuse of alcohol or other drugs; and/or when requested or directed for other cases.

22.  There are two types of investigations, formal and informal.  Documentation for an informal LD investigation typically consists of DA Form 2173 completed by the MTF and the unit commander and approved by the appointing authority, State AG, or higher authority.  The final determination of an informal LD investigation can result in a determination of "in LD" only, except as provided in paragraph 4–8(c)(1).  A formal LD investigation is a detailed investigation that normally begins with a DA Form 2173 completed by the MTF and annotated by the unit commander as requiring a formal LD investigation.  The appointing authority, on receipt of the DA Form 2173, appoints an investigating officer who completes DD Form 261 and appends appropriate statements and other documentation to support the determination, which is submitted to the GCMCA for approval. 

23.  The final determination of an informal LD investigation can result in a determination of "in LD" only, except for those cases described in paragraph      4–10.  The mere fact that the Soldier was in an "authorized status" (duty, pass, leave, and so forth) does not support a determination of "in LD" in and of itself.  A determination of "in LD" may be entered by the commander only when it has been established that a formal LD investigation is not required.  A formal LD investigation is required if the injury, disease, or death occurred under unusual or doubtful circumstances; or if the person affected by the investigation (to include next of kin) requests one; or the complexity of the case warrants one; or for any other circumstance outlined in paragraph 2–3c.  If a formal LD investigation is required or requested, the unit commander need not enter the details of the incident in item 30, DA Form 2173; however, the reason a formal LD investigation is required will be entered.

24.  Line of duty actions should be completed within the time limits given in tables 3–1 and 3–2.  When an LD investigation, either formal or informal, is not completed within the given time, the reasons the report is late should be made part of the remarks section of DA Form 2173 for informal reports and as part of the investigating officer’s comments on the DD Form 261 for formal reports.  These comments can be expanded upon as necessary by the appointing authority, reviewing authority, or final approving authority.  The mere failure to complete an action within the prescribed time or the failure to provide reasons the report is late is not a basis to disapprove, reverse, or change an otherwise proper determination.

25.  Tables 3-1 states that for an informal investigation, the Individual’s unit commander should complete section 2, DA Form 2173, attach support documents, and send to the appointing authority for units in the area in which the incident occurred.  USAR units conducting LD investigations will submit the LD investigation to the CAC having jurisdiction over the area where the injury occurred for final processing.  Completion time is 30 calendar days after an incident.  The appointing authority reviews the LD investigation for completeness and required documents, and if approved, annotates the forms with the proper entries and signature, and if disapproved, direct a formal LD investigation.  Completion time is 35 calendar days after the incident.  The final approval authority reviews the LD investigation for completeness and required documents. If approved, annotate as outlined under appointing authority.  If disapproved, return to the appointing authority and direct a formal LD investigation.  Completion time is 40 calendar days after the incident.  

26.  Table 3-2 states that for a formal investigation, the responsibilities and timelines are as follows:

	a.  The MTF commander (commander having physical or administrative responsibility for the MTF in which Soldier is treated or pronounced dead), complete section I, DA Form 2173, send to the Soldier’s unit commander and the supporting military personnel office (MILPO).  For USAR and ARNG personnel who are injured during IDT and are treated by a civilian doctor, the doctor and the unit commander should complete DA Form 2173.  When the incident occurs while the Soldier is away from his unit (that is, on leave, in transit, AWOL, and so forth), complete section I, DA Form 2173, and send to the nearest Army unit with an appointing authority (State MILPO for ARNG) in the area of the MTF.  However, when the incident occurs during a period when the Soldier and his unit are training or on another exercise away from the parent installation, complete section I, DA Form 2173, and send to the parent installation CAC (State MILPO 

for ARNG).  The MTF commander will provide the supporting documentation requested by the parent installation, MILPO, or responsible unit commander.  The MTF will send the original and 4 copies to the State MILPO for the soldier’s unit if the Soldier is not Federalized and/or attending an Active Army Service School.  Completion time is 5 calendar days after incident or initial treatment;

	b.  Unit Commander will request DA Form 2173 from MTF if not previously received, no later than 10 days after incident.  Unit commander completes section II, DA Form 2173; attach supporting documents; and send original and 3 copies to the LD appointing authority.  Completion time is 30 calendar days after incident;

	c.  Appointing Authority will appoint a disinterested officer in writing to conduct the investigation.  The same officer should be appointed to investigate all injuries or deaths that occurred as a result of a single incident.  Completion time is 35 calendar days after incident;

	d.  Investigating Officer will conduct a formal LD investigation as outlined in this regulation, make a report on DD Form 261, and send to the appointing authority.  Completion time is 50 calendar days after incident;

	e.  Appointing Authority will review the investigation and complete the block titled "Action by the Appointing Authority" on DD Form 261.  Retain 1 copy of the report and send the original and 2 copies to the final approving authority (or reviewing authority for ARNG).  When the Soldier is in the ARNG on duty under Title 32, U.S. Code, section 503, 504, or 505, the appointing authority will send the original and 2 copies of the report of investigation to the State MILPO from which the individual was ordered to duty.  The State AG is the reviewing authority.  Completion time is 65 calendar days after incident;

	f.  Reviewing Authority (ARNG only) will review the investigation, complete the block titled "Action by the Reviewing Authority" (see notes 2 and 3) on DD Form 261, and send the original and 2 copies to final approving authority.  Completion time is 70 calendar days after incident; and 

	g.  Final Approving Authority will review the LD investigation and enter the official designation of the headquarters, the date, approval or disapproval of the determination.  Completion time is 75 calendar days after incident.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should receive an LD determination for his September 1990 injury.

2.  The evidence of record shows that the applicant was on active duty for training from 6 June 1990 to 31 August 1990.  While on duty, he underwent a dental examination that included cleaning and probing.  Nine days later, he suffered an infection of the right hip and underwent surgery at a civilian hospital.  He contends that his infection resulted from the dental treatment and that no formal or informal LD was conducted at the time.  

3.  The applicant argues that he was not aware of the LD process at the time. Accordingly, he reconstructed most of the documentation from memory and supported his argument with extensive internet research and physician statements.  He also provided a DA Form 2173, dated 9 September 1990, which appears to have been produced at a later date and backdated to 1990.  He also provided a new DA Form 2173, signed by the same official, with a more recent date.  

4.  The CAARNG State surgeon opined that the cause of the applicant's septic arthritis is undetermined and that based on the available medical documents the applicant has three associated risk factors, sexual, trauma, and dental, with the dental procedure being least likely and the sexual factor being the most likely.  Furthermore, the CAARNG returned the applicant's case without action.  The response also cited the fact that the CAARNG Surgeon General reviewed the case and determined that the evidence in support of the applicant's case was insufficient.  

5.  Nevertheless, there is expert opinion from several physicians that the infection in the applicant's hip could have resulted from bacteria entering his blood stream when his gums were probed during his dental examination.  While the applicant clearly engaged in unprotected sexual intercourse, there is no evidence that he contracted any disease as a result of this activity.

6.  In view of the forgoing evidence, the applicant's September 1990 injury should be determined to be "In Line of Duty" and the applicant is accordingly entitled to correction of his records to show that his injury was LD.

BOARD VOTE:

___X____  ___X____  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that the State Army National Guard records and all Department of the Army records of the 

individual concerned be corrected, as appropriate, by showing the Line of Duty investigation was completed and the individual's hip infection was determined to have been incurred in the Line of Duty.


															XXX
      ______________________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080010591



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ABCMR Record of Proceedings (cont)                                         AR20080010591



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