IN THE CASE OF:	  

		BOARD DATE: 	        2 June 2009

		DOCKET NUMBER:  AR20080018781 


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 a line of duty (LOD) determination indicating his service on 29 December 1990 aggravated his previous injuries.  He also requests incapacitation pay (INCAP) for the period from 24 January 1991 to 
10 May 1991, a medical pay out, and a disability rating.

2.  The applicant states his Army National Guard (ARNG) unit failed to provide him with an LOD determination, INCAP pay, and a medical pay out when he was ordered to the Troop Medical Clinic (TMC) at Camp Joseph T. Robinson, North Little Rock, AR.

3.  The applicant provides, in support of his application, eight pages of medical treatment records (including profiles), results from his Medical Evaluation Board (MEBD), a statement from his wife, his ARNG Retirement Points Statement, a statement from a fellow Soldier, and two newspaper articles.

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 military personnel records show he enlisted in the Arkansas Army National Guard (ARARNG) on 11 July 1982 for a period of 6 years.  He completed a period of active duty for training during the period from 
27 September 1982 to 15 February 1983 during which he completed basic combat training and advanced individual training and was awarded the military occupational specialty of 94B (Food Service Specialist).  On 8 August 1985, the applicant extended his enlistment for 3 years and 27 days, thereby changing his expiration of term of service (ETS) to 7 August 1991.

3.  Physicians' Progress Notes, dated 28 December 1990, from Arkansas Primary Care Clinics, North Little Rock, AR show the applicant suffered injuries to his neck, lower back, left ankle, and left knee in a motor vehicle accident (MVA) on 27 December 1990.

4.  The applicant's ARNG Retirement Points Statement, prepared 15 October 1991, shows he was present for inactive duty for training on 29 December 1990.

5.  On 24 January 1991, the applicant was evaluated at the TMC, North Little Rock, AR for pain in his left knee, left ankle, neck, and lower back.  These injuries were received in the MVA the applicant was involved in on 27 December 1990.  He was given a temporary profile for upper and lower extremities due to the above conditions.  He was placed on no duty, use of a wheel chair.  The temporary profile was to expire on 23 February 1991.

6.  On 24 January 1991, the applicant was transferred from the 212th Signal Battalion to Troop Command Detachment 1, State Area Command (STARC), North Little Rock, AR for the purpose of medical evaluation.

7.  On 20 February 1991, a DD Form 689 (Individual Sick Slip) indicated the applicant was treated for injuries received in an auto accident.  The item entitled In Line of Duty contains the entry "NO."  The applicant's temporary profile was extended to 23 March 1991 and the form was signed by a colonel in the Medical Corps.  On 10 March 1991, his temporary profile was extended to 13 April 1991 and it was noted he was to be placed on no duty until released by a medical board.

8.  On 18 March 1991, the applicant was scheduled for an MEBD to convene on 4 May 1991.  

9.  In a letter, dated 24 April 1991, Dr. Chakales, an orthopedic surgeon, stated the applicant should be disqualified from participating in active military duty due to his neck problem and that he be retired from the active military service at this time.

10.  On 4 May 1991, an MEBD found that the applicant did not meet medical fitness standards for retention due to his cervical spine strain.  He received a permanent profile for cervical spine sprain.

11.  On 7 August 1991, the applicant was discharged from the ARARNG by reason of the expiration of his term of service.  He had completed 9 years and 
28 days of service in the ARARNG that was characterized as honorable.

12.  A memorandum, dated 19 August 1991, from the applicant's commander requested a medical separation for the applicant.  The commander noted that if the applicant was not approved for medical separation he wished to be discharged at ETS.

13.  A DA Form 4187 (Personnel Action), dated 19 August 1991, indicated the applicant was discharged by reason of being medically unfit for retention standards effective 7 August 1991.

14.  In a statement, dated 30 September 2008, from the applicant's wife, a registered nurse, she states that after a review of the applicant's military medical records she knows for certain that the fall the applicant had while carrying his heavy duffle bags en route to military duty on 29 December 1990, aggravated his injured weight bearing joints to the extent that he was unable to perform his military duties on 29 December 1990.  She also states the applicant has acquired additional mental medical conditions associated with his physical disabilities.

15.  In a statement, dated 18 October 2008, from a fellow Soldier, he states he saw the applicant having trouble carrying his duffle bags on 29 December 1990.  He also states the captain sent the applicant home before the training exercise was over because he appeared to be having such a rough time during training.

16.  In the processing of this case, an advisory opinion, dated 23 February 2009, was provided by the Chief, Personnel Division, National Guard Bureau (NGB).  NGB states there is no record of an LOD investigation being initiated concerning an injury or aggravation of an existing injury on 29 December 1990.  The NGB states the applicant's spouse is the only person to mention the aggravation of an existing injury and that all the medical documents provided by the applicant do not mention an aggravation of an existing injury.  The NGB recommended disapproval of the applicant's request to change his LOD determination to show that his duty performed on 29 December 1990 aggravated a previous injury.  The NGB further recommended disapproval of his request to be granted INCAP, receive a medical payout, and receive a disability rating.

17.  In his rebuttal, dated 23 March 2009, the applicant states he was involved in a motor vehicle accident that had nothing to do with his National Guard duties.  He states that he reported, in spite of his injuries, and sustained an aggravation of those injuries while carrying heavy equipment and falling while en route to the National Guard Armory.  He states he reported both the accident and the fact that he re-injured himself to his commander.  

18.  Army Regulation 135-178 (Enlisted Administrative Separations) provides in Section IV (Discharge Policy) that a Soldier is entitled to be discharged on his or her ETS, and normally will be discharged unless action is taken to retain the Soldier beyond his or her ETS.  This regulation also provides that a Soldier may voluntarily remain beyond the his or her ETS if they are undergoing required health care or are being processed for physical disability separation.

19.  Army Regulation 135-381 (Incapacitation of Reserve Component Soldiers) provides that the objective of the Reserve Component (RC) Incapacitation System is to compensate members of the RC who are unable to perform military duties and/or who demonstrate a loss in civilian earned income as a result of an injury, illness, or disease incurred or aggravated in the line of duty.  This regulation also provides that INCAP pay will be paid only during the period a member remains unfit for military duty or demonstrates a loss of earned income as a result of the incapacitation.  Payment in any particular case may not be made for more than 6 months without review of the case by the appropriate headquarters.

20.  Army Regulation 600-8-1, paragraph 41-8 states, in pertinent part, that if an existing prior to service (EPTS) condition was aggravated by military service, the finding will be in line of duty.  If an EPTS condition is not aggravated by military service, the finding will be NLD-NDOM, EPTS (not in line of duty-not due to misconduct, existed prior to service).  Specific findings of natural progress of the pre-existing injury or disease based on well established medical principles alone are enough to overcome the presumption of service aggravation.

21.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his LOD should be changed to show an injury on 
29 December 1990 aggravated his injuries received in an MVA.  There is no record of the applicant having been injured on 29 December 1990.  The statement from a fellow Soldier merely states the applicant was having trouble performing his duties.  The statement provides no evidence of the applicant falling.  The applicant's wife states that the fall he suffered aggravated his previously injured weight bearing joints to the extent that he was unable to perform his military duties on 29 December 1990.  However, both statements are made over 18 years after the alleged incident and neither the Soldier or the applicant's wife witnessed the applicant fall.

2.  All of the medical records submitted by the applicant show treatment for the injuries he suffered in the MVA on 27 December 1990.  There is no mention of an injury or fall suffered on 29 December 1990 or that such injury or fall aggravated the injuries the applicant suffered in the MVA.  DD Forms 689, dated 24 January 1991 and 20 February 1991, both indicate the source of his injuries to be an automobile accident.

3.  In view of the above, there is insufficient evidence to show the applicant suffered an aggravation of his injuries received in the MVA.

4.  An MEBD found the applicant did not meet medical fitness standards for retention based on a cervical spine strain, a non-service related disability.  The applicant was discharged at his ETS.

5.  INCAP, a medical pay out (severance pay), or a disability rating are only provided for disabilities that are incurred or aggravated in the line of duty.  The applicant's disability, cervical spine sprain, was clearly incurred in the MVA two days prior to his reporting for duty.  His cervical spine sprain was not incurred in line of duty and there is no evidence that it was aggravated on 29 December 1990.  Therefore, his is not entitled to INCAP, a medical pay out, or a disability rating.

6.  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 that 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)                                         AR20080018781





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080018781



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1