IN THE CASE OF:	  

		BOARD DATE:	  13 July 2010

		DOCKET NUMBER:  AR20090018751 


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 (LD) investigation involving a chemical related incident, dated 12 August 2002 (that he refers to as 14 March 2000) be reversed to show "In the Line of Duty."  He further requests:
   
   a.  that he be granted incapacitation pay from February 2000 to December 2002;
   
   b.  that he be reimbursed for out of pocket medical expenses; and
   
   c.  that his second LD investigation involving a collision accident with a deer also dated 12 August 2002 (which he refers to as dated 17 September 2000) be corrected to list fibromyalgia as an injury.

2.  The applicant states that an injustice occurred when the LD investigation was reversed to "No." 

3.  He states the Medical Treatment Facility (MTF) Department of Veterans Affairs (VA) compensation and pension examination findings are not consistent with the Army's findings.  His treating physicians examined the Army Regulation (AR) 15-6 investigation and determined it was possible that his fibromyalgia was caused by the collision accident. 

4.  The applicant provides his DD Forms 214 (Certificate of Release or Discharge from Active Duty), Chronological Statement of Retirement Points (RPAS), numerous orders, electronic mail (e-mails), Performance/Disciplinary Action Statements, Noncommissioned Officer Evaluation Reports (NCOERs), LD AR 15-6 Report of Investigation, and VA Rating Decision. 

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 (RA) on 5 May 1982.  He was honorably released from active duty and transferred to the U.S. Army Reserve (USAR) on 1 May 1984.  He was subsequently assigned to a troop program unit.

3.  The applicant's records show two LD investigations were conducted on
12 August 2002.  One LD investigation was based on the applicant's exposure to some unknown chemicals on 14 March 2000 which will be referred to as LD investigation "A" for clarification purposes.  The second LD investigation involved a collision with a deer that occurred on 17 September 2000 which will be referred to as LD investigation "B."

4.  A U.S. Army Abbreviated Ground Accident Report (AGAR) shows that on 
14 March 2000 the applicant was involved in an incident with an insecticide sprayer.  The following is documentation concerning the 14 March 2000 incident and all information pertaining to LD investigation "A":

   a.  LD investigation "A" shows "disease" checked as the type of investigation. The LD stated that on 14 March 2000 the applicant was exposed to some unknown chemicals brought back from the Gulf War.  The medical diagnosis was listed as fibromyalgia, chronic fatigue syndrome, and peripheral neuropathy.  The injury was tentatively determined to be in LD.  
   
   b.  On 14 March 2003, the investigating officer (IO) found that the individuals involved in the incident of cleaning pesticide canisters in a confined close space exercised poor judgment and without regard for reasonable precautions.  The IO found no evidence that the 14 March 2000 pesticide incident contributed to the applicant's long term health problems.  The IO recommended that the incident not be considered contributory to the applicant's subsequent ailment and that it was "Not in the Line of Duty."  On 27 March 2003, the Assistant Staff Judge Advocate (SJA) reviewed the AR 15-6 Report of Proceedings (ROP) and found the report to be legally sound.  The SJA indicated the findings and recommendations were supported by sufficient evidence and the recommendations were consistent with the findings. 

   c.  On 28 January 2004, a second AR 15-6 informal investigation was completed concerning the incident on 14 March 2000.  The IO found that the applicant's medical condition and medical care for which he was seeking compensation was not related to the incident on 14 March 2000.  A second legal review was conducted on the AR 15-6 ROP.  The ROP was reviewed and found to be legally sound.

   d.  On 5 August 2004, the applicant requested reconsideration of the AR 15-6 investigations completed on 14 March 2003 and 28 January 2004, incapacitation pay, and medical reimbursement.  He stated it was his belief that some of the assumptions made in the LD investigation "A" contained errors and by concurring with those errors and lack of full information, justice was not served.  
   
	e.  Memorandum, Subject:  LD Determination, U.S. Army Human Resources Command (HRC), Alexandria, Virginia, dated 24 November 2004, informed the applicant the finding in LD "A" were changed to read "Not in Line of Duty - Not Due to Own Misconduct."  HRC stated this change was based on a thorough administrative review rendered by HRC and the AR 15-6 investigations. 

	f.  On 9 February 2005, HRC responded to the applicant's appeal of the determination in LD investigation "A."  HRC indicated that after a thorough medical and administrative review of the correspondence pertaining to the applicant by the Office of the Surgeon General's Chemical Casualty Case and Occupational Health and Environmental Medicine, they agreed with the findings of the AR 15-6 investigation.  The applicant's conditions were not linked to his exposure to cargamate insecticide while in an active duty status.  HRC continued that the applicant's conditions existed prior to service and were not aggravated by the incident of 14 March 2000. 

5.  An AGAR form shows that on 17 September 2000, the applicant was involved in an accident while driving his privately owned vehicle from his home to drill duty.  The following is documentation concerning the 17 September 2000 accident and LD investigation "B":

   a.  LD investigation "B" shows "injury" checked as the type of investigation.  This LD investigation indicates that on 17 September 2000 the applicant collided with wildlife (a deer).  The medical diagnosis was listed as a herniated disk between C5-C6.  The applicant's injury was determined to be "in the line of duty."
   
	b.  The radiology report, dated 25 June 2001, shows the applicant was diagnosed with a small disc herniation at the C5-C6 level central and to the right.

	c.  A Patient Status Report, dated 8 August 2001, shows the applicant was evaluated for physical therapy for a herniated disc.

   d.  A Statement of Medical Examination and Duty Status, dated 17 August 2002, shows the applicant was seen at the spine clinic as an outpatient on 
9 August 2001.  The applicant was in an inactive duty status when he hit a deer and injured his C5-C6 disc.  The accident was determined to be "in the line of duty."

6.  Memorandum, Subject:  An interim LD investigation, dated 30 September 2002, states "an initial review of the circumstances involving the (fibromyalgia with chronic fatigue related to chemical exposure) incurred by the applicant indicates that an in line of duty finding would be made."  Additionally, the memorandum states "this memorandum serves as an interim notification that the LD investigation in process and the applicant is entitled to receive Incapacitation Pay until the LD investigation is finalized."   The memorandum further stated that if the finding was adverse appropriate action would be taken to recoup all payments made to the applicant related to this illness.   

7.  On 25 March 2005, the applicant withdrew his demand for a formal Physical Evaluation Board (PEB).  He stated that he did not contest the informal PEB rating at that time.  He also indicated he wanted to apply for the Early Reserve Component Retirement Program.  The applicant did not provide a copy of his PEB proceedings and it is not contained in his official military personnel file.

8.  On 20 September 2005, the applicant received his Notification of Eligibility for Retired Pay at Age 60 (Selected Reserve 15-Year Letter).  

9.  On 6 December 2005, the applicant was released from his assignment and transferred to the Retired Reserve.  

10.  The applicant's VA Rating Decision shows the following disability ratings:

* Fibromyalgia (claimed as fibromyalgia chronic fatigue syndrome and pain disorder), 40 percent
* Depression, 30 percent
* Neuropathy, left upper extremity, 20 percent
* Entitlement to unemployability

11.  AR 600-8-4 (LD Policy, Procedures, and Investigations) states that a Soldier of the National Guard or USAR is entitled to hospital benefits, pensions, and other compensation, similar to that for Soldiers of the Active Army for injury, illness, or disease incurred "in line of duty," under the following conditions prescribed by law (10 U.S. Code (USC) 1074a): 

* while performing AD for a period of 30 days or less
* while performing inactive duty training
*  while performing service on funeral honors duty under 10 USC 12503 or 32 USC 115
* while traveling directly to or from the place at which that Soldier is to perform or has performed active duty for a period of 30 days or less inactive duty training

12.  AR 600-8-4 states that documentation for an informal LD investigation typically consists of a 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 line of duty" only, except as provided in Soldiers on AD who develop a hernia.

13.  The same regulation states that the Commanding General, HRC, acting for the Secretary of the Army, may at any time change a determination made under this regulation.  The correct conclusion based on the facts must be shown.  However, if the change is from "in line of duty" to "not in line of duty" or, if other evidence is considered which supports a "not in line of duty" determination, the Soldier must be informed of the proposed change, its basis, and his rights and given a chance to respond in writing.  Any statement or evidence that the Soldier submits must be considered before taking corrective action.  When a determination is changed after final action has been taken to award statutory benefits (such as entitlement to physical disability pay), it does not necessarily change the determination on the statutory award.  Final statutory determinations, which are otherwise regular and approved by competent authority, may not normally be reopened or revoked.  

14.  U.S. Army Reserve Command Regulation 140-3 (Processing Incapacitation Claims) states that Soldiers may be compensated for lost nonmilitary income incurred as a result of an injury, illness, or disease suffered in the in the LD and while in an inactive duty training or active duty status.
DISCUSSION AND CONCLUSIONS:

1.  The applicant argues that the reversal of LD investigation "A" from "In Line of Duty" to "Not in Line of Duty - Not Due to Own Misconduct" was unjust.  Additionally, he argues that LD investigation "B" should list fibromyalgia as an injury.

2.  Evidence of record shows that two AR 15-6 investigations were completed as well as a thorough medical and administrative review by the Office of the Surgeon General's Chemical Casualty Case and Occupational Health and Environmental Medicine.  All parties agreed that the applicant's conditions were not linked to his exposure to insecticide while in an active duty status.  The applicant requested reconsideration of both AR 15-6 investigations, incapacitation pay, and medical reimbursement; however, he was denied.  There is no evidence and the applicant has not provided any evidence to show the final determination in LD investigation "A" was in error.

3.  Since the applicant has failed to provide evidence to show LD investigation "A" was in error or unjust, there is no justification to grant him incapacitation pay for February to December 2002 and reimbursement for his out of pocket medical expenses.

4.  Evidence of record further shows that LD investigation "B" was based on an injury of herniated disc was sustained in a collision accident with a deer.  The applicant's argument that one of his VA physicians stated it was "possible" that his fibromyalgia was caused by the collision accident is not sufficient justification to change LD investigation "B."  There is no medical evidence and the applicant has not provided any to show the collision accident contributed to his "fibromyalgia."  Therefore, in the absence of sufficient medical evidence LD investigation "B" is correct as constituted. 

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090018751



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ABCMR Record of Proceedings (cont)                                         AR20090018751



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