BOARD DATE:	  29 September 2009

		DOCKET NUMBER:  AR20080017610 


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 his line of duty (LOD) appeal, dated 1 March 1999, be resolved and that he receive a corrected DA Form 2173 (Statement of Medical Examination and Duty Status).

2.  The applicant states that his LOD appeal has never been resolved.  He goes on to state that he was being treated for diabetic issues, internal bruising, and stress before 29 September 1997.  The other symptoms that the investigator mentioned were diagnosed as Graves disease at Walter Reed Army Medical Center (WRAMC).

3.  The applicant provides a copy of a Military Personnel Division, Fort George G. Meade, MD, memorandum, subject:  Line of Duty Determination, dated
6 February 1998, addressed through his chain of command to him advising him that the final determination was "Not in Line of Duty – Due to Own Misconduct" and that he had 30 days to appeal the decision; a copy of a letter from a civilian attorney addressed to the applicant's Reserve command in Oakdale, PA, dated
3 March 1999, advising the command that he was representing the applicant in his appeal and that the applicant had received the notification on 3 February 1999.  The attorney requested that the Reserve command provide them with medical records pertaining to the applicant.  The applicant also provides a copy of a self-authored letter, dated 11 November 1997, that he wrote to his congressional representative's office; a copy of his LOD and his rebuttal to the investigating officer, dated 14 May 1998; a copy of the investigating officer's reply to his rebuttal, dated 20 May 1998; a copy of a letter to the applicant from his 
former unit commander regarding a DA Form 2175 (Unit Status Report); a copy of a self-authored letter, dated 4 March 2002, to the "Investigatory General's Office" in St. Louis, MO, along with follow-up correspondence from the Inspector General's Office in St. Louis and his follow-up to their correspondence.  He further provides a copy of a letter from the Office of the Staff Judge Advocate of the 99th Regional Support Command (RSC), dated 26 March 2003, essentially advising the applicant to apply to this Board.

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 was commissioned as a U.S. Army Reserve (USAR) captain in the Veterinary Corps on 1 November 1979.  He continued to serve in the USAR and he was promoted to the rank of major on 20 April 1984 and to the rank of lieutenant colonel (LTC) on 23 June 1991.  The applicant resided in North Carolina and was assigned to a Troop Program Unit (Medical Detachment) in Rockville, MD as a senior veterinary officer.

3.  The applicant volunteered for deployment to Bosnia and when ordered to active duty, he was transferred to Fort Benning, GA for processing.  During the Processing for Overseas Replacement (POR), it was discovered that he did not have a current license to practice as a veterinarian.  Shortly after being told that he was not being deployed, the applicant began having chest pains, depression, difficulty sleeping, and a loss of appetite.  He reported to Martin Army Community Hospital at Fort Benning on 26 September 1997.  The examining physician indicated that the applicant had a history of diabetes mellitus and that he needed to be evaluated fully to further assess for fitness for duty.  It was determined the applicant was unfit and that he should be further evaluated by a medical board.  The applicant was released from active duty (REFRAD) and he was returned to his Reserve unit.  It appears that he was on active duty for approximately
60 days.

4.  The applicant's commander indicated that the applicant did not feel that he was medically "OK" and underwent more medical tests related to the condition that occurred on active duty status.  The applicant wanted continued evaluation or reimbursement for the medical costs.  The commander considered the injury to not have been incurred in line of duty and deemed that a formal line of duty investigation was required.

5.  On 5 February 1998, an LOD investigating officer (IO) was appointed to perform an LOD investigation surrounding the applicant's injuries of
26 September 1997.

6.  The IO completed the LOD on 2 May 1998 and indicated that the applicant experienced anxiety and depression due to not being mobilized after it was determined that he did not have a valid veterinary license.  The IO further indicated that the medical diagnosis was a phase of life problem, anxiety disorder with depression.  In the remarks section of the DD Form 261 (Report of Investigation) the IO indicated that the applicant was voluntarily mobilized for service in Bosnia in support of Operation Joint Endeavor/Operation Joint Guard and while at his mobilization station (Fort Benning) it was discovered that he did not have a current license to practice as a veterinarian.  Shortly after being informed that he was not being deployed, the applicant began having chest pains, depression, difficulty sleeping, and loss of appetite.  After a thorough medical workup, it was determined that these symptoms were due to anxiety.  The IO went on to state that the applicant contends that his problems were a direct result of the Army refusing to deploy him and thus were service-connected.  The IO stated that while there were two medical opinions in the case, the sole determiner of duty status in the case is the degree that the applicant's actions contributed to his condition.  The applicant failed to maintain his license to practice veterinary medicine and when queried by his commander as to the status of his license he responded to the effect that his license was "OK."  The IO contended that the applicant lied to his commander and in doing so committed intentional misconduct.  The IO found that the applicant's condition was not in the line of duty due to his own misconduct.

7.  The IO referred the results of the investigation to the applicant on 4 May 1998 with all of the supporting documents for comment.  He advised the applicant that he had 10 days in which to submit matters in his behalf for consideration.  The applicant submitted a memorandum to the IO on 14 May 1998, and he indicated that he disagreed with the IO's findings.  The applicant also contended that he was unaware of a requirement to have an active license and that he intended to appeal the determination.  The IO responded back to the applicant on 20 May 1998 and stated that after reviewing the applicant’s arguments, he was still not persuaded that the applicant’s condition was "In Line of Duty" and that his recommendation would stand.
8.  A legal review was conducted on 3 December 1998 and a determination was made by the Office of the Staff Judge Advocate at Fort Meade that the LOD investigation was legally sufficient to support a finding of "Not in Line of Duty - Due to Own Misconduct."

9.  The LOD was approved by the appropriate authorities and while the available copies in the applicant's records do not contain dates, they indicate that the LOD was approved.  The investigation with enclosures was forwarded to the applicant with instructions advising him to reply within 10 days acknowledging receipt and that he had 30 days in which to submit an appeal.  The applicant's records contain copies of the PS Form 3800 (Receipt for Certified Mail) and PS Form 3811 (Domestic Return Receipt) dispatching the documents to the applicant at an address in Elm City, NC.  There are no documents in the applicant's records which indicate that he acknowledged receipt of the LOD investigation and the supporting documents.

10.  The documents provided by the applicant reflect that the LOD notification was forwarded to the applicant on 6 February 1998 and that he acknowledged receipt on 2 March 1999.  He also provides a copy of a letter from an attorney in Rocky Mount, NC addressed to the applicant’s RSC in Oakdale indicating that the law firm was representing the applicant in his appeal of the LOD and they were requesting that transcribed medical records be provided to them.  There is no evidence that the applicant authorized the release of such information at the time.  Additionally, there is no evidence to show the applicant actually submitted an appeal of the LOD within the 30 days allowed.

11.  Although the available records do not contain orders, the applicant’s records show that, on 15 April 2000, he was transferred to the USAR Control Group (Retired).  He had 17 qualifying years of service for retirement.

12.  Army Regulation 600-8-4 prescribes the policies, procedures, and mandated tasks governing line of duty determinations of Soldiers who die or sustain certain injuries, diseases, or illnesses.  It provides, in pertinent part, that in injury or disease cases, the final approval authority will inform the individual of the results by Certified Mail and also advise the individual of their right to appeal within 
30 days of receipt of the approved LOD determination.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his appeal of the LOD investigation has never been finalized has been considered; however, the available records do not contain and the applicant has not provided a copy of the appeal in question.

2.  Although the applicant has provided a letter from a civilian attorney which indicates that an appeal was forthcoming, there is no evidence in the available records to show that an appeal was ever submitted or that it was submitted within 30 days of receipt of the final determination.

3.  Therefore, in the absence of such evidence, it must be presumed that the original determination made in his case was accepted as being a valid finding of "Not in Line of Duty - Due to own Misconduct" and the applicant has not provided sufficient evidence to dispute those findings.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ___x____  ___x____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      __________x_____________
               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)                                         AR20080017610



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