IN THE CASE OF:	  

		BOARD DATE:	  20 January 2011

		DOCKET NUMBER:  AR20100013170 


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:

The applicant defers to counsel. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, a determination by the Board that the applicant was wrongfully denied an active duty medical extension (ADME) in 2001 and award of all back pay, medical pay, or any other compensation the Board deems appropriate.  In the alternative, he requests the applicant be granted incapacitation pay.

2.  Counsel states the applicant was diagnosed with severe anemia that significantly affected her ability to perform the duties of her station.  However, despite compelling medical reasons and due diligence on the part of the applicant to acquire appropriate medical processing, she was ultimately denied entry into the ADME program and possibly denied incapacitation pay.

3.  Counsel describes the applicant's military career and points out she performed in an outstanding manner during the period 1976 to 1999.  She was called to active duty in December 2000 for a period of 139 days.  On 9 January 2001, while resting during evening hours, the applicant began exhibiting crushing pains in her chest and right arm.  Believing the pain would subside if she slept, she elected to sleep instead of reporting to a physician.  The following evening, the pain returned and the applicant reported to the emergency room.  On 


24 January 2001, the applicant's primary care physician ordered blood work done that noted she was suffering from atypical chest pain and iron deficiency anemia.  Her physician further recommended duty restrictions.  This was not the first time a physician had recommended a reduction in physical activity.  In 1985, she had been placed on a permanent profile due to back pain.

4.  Counsel states on 1 May 2001 the applicant received an email containing guidance on how she could be extended on active duty for her anemia through the ADME program.  She was informed that through the ADME program her current active duty status could be extended provided she submitted a written statement from the military physician listing the diagnosis, prognosis, therapy required, and whether the condition would be incapacitating and prevent her from returning to her civilian or military occupation.  Pursuant to the guidance, the applicant submitted a statement of medical examination and duty status that deemed her injury to have been incurred in the line of duty (LOD).  That same day, the applicant's commander authorized a request to report to Walter Reed Army Medical Center (WRAMC) for further treatment.

5.  Counsel contends that one week later the applicant's physician submitted another statement of medical examination indicating the applicant needed to be referred to a hematologist for further evaluation and possible bone marrow testing.  The physician further opined that the applicant's condition may result in temporary disability.  On 14 May 2001, the applicant's request for an ADME was disapproved because "her prognosis is good and her condition is not incapacitating." 

6.  Counsel further states that on 20 June 2001 the applicant was approved for an informal LOD determination.  On 10 July 2001, she was ordered to active duty for a period of 52 days.  On 8 August 2001, she requested a formal LOD for severe anemia.  A formal LOD was not done at this time.  Three days after the applicant's request, she underwent a 5-year physical and she was found to be qualified for retention.

7.  Counsel points out that following termination of the applicant's active duty period in August 2001 she applied for a tour of active duty at the Army Reserve Personnel Center beginning on 1 October 2001.  The request was denied.  On
17 September 2001, the applicant received a Notification of Possible Medical Disqualification for iron deficiency.  Pursuant to the memorandum's guidance regarding the disposition election, the applicant chose to undergo a fitness for duty evaluation at a medical treatment facility.  Despite her good faith attempts to receive a fit for duty evaluation, none was conducted by the active component.  


On 20 November 2001, the applicant was promoted to master sergeant effective 1 December 2001.  Over the next two years, the applicant received numerous
1-day orders to report to WRAMC for fitness for duty evaluations.

8.  Counsel contends the applicant's request to be placed on an ADME was wrongfully disapproved and that the ADME program is available to Soldiers who incur an injury or aggravate a previous illness or disease in the LOD during duty and require medical treatment/evaluation for more than 30 days.  The evidence herein indicates that it was highly likely the applicant's severe anemia would require treatment for more than 30 days.  Her doctor recommended that further bone marrow testing was required along with consultations with a hematologist.  He prematurely deemed the applicant's condition not be incapacitating when he should have determined medical care would extend beyond 30-days, thus necessitating the applicant be placed in an ADME status.  Because it was a clear error she was not, the applicant is entitled to all compensation she did not receive as a result.

9.  Counsel also points out according to Army regulatory guidance, when a Solder notifies her commend of an injury that has incurred or an aggravated injury, illness, or disease during active duty, the command must "initiate action to ensure a line of duty investigation (LODI) is completed in accordance with AR [Army Regulation] 600-8-4 [Line of Duty Policy, Procedures, and Investigations]."  This was not done in the applicant's case despite her repeated attempts to have an LODI conducted.  The Army's failure to conduct a timely LOD pursuant to Army Regulation 600-8-4 deprived the applicant of significant incapacitation pay she was entitled to.  As such, if the applicant's active duty status is not retroactively extended by the Board, incapacitation pay should be granted.

10.  Counsel provides an undated 10-page memorandum with exhibits outlined in the memorandum.

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 ordered to active duty from the U.S. Army Reserve (USAR) on 4 December 2000 for a period of 139 days.

3.  An Air Force (AF) Form 422 (Physical Profile Serial Report), dated 24 January 2001, shows the applicant was diagnosed with iron deficiency anemia and atypical chest pain.

4.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 3 May 2001, shows the applicant was seen in the emergency room for chest pains and crushing pain in her right arm on 10 January 2001 while on active duty. 

5.  Records show the applicant's request for ADME was disapproved on 14 May 2001.  The disapproval memorandum states, in pertinent part, the applicant's physician "states that her prognosis is good and her condition is not incapacitating" and the applicant "also states she is able to return to her civilian employment.  Thus, there is no requirement for extension."  A letter, dated 3 May 2001, from the applicant's physician/primary care manager states, in pertinent part, "She is currently on iron pills and her Anemia has been corrected."

6.  On 11 July 2001, the applicant was ordered to active duty for a period of
52 days.  Her orders show the end date was 31 August 2001.

7.  Counsel provided medical documentation which shows the applicant was found qualified for retention in August 2001.

8.  On 17 September 2001, the applicant was notified of her possible medical disqualification for retention in the USAR due to iron deficiency anemia and she was offered options for disposition of her case.  She was afforded the following options:  (1) elect transfer to the Retired Reserve; (2) elect to be discharged from the USAR with an honorable discharge; or (3) elect to undergo a Fitness for Duty Evaluation at a military medical treatment facility to determine whether her medical condition meets retention standards and what duty limitations, if any, may require a permanent physical profile.  According to counsel, the applicant requested to undergo a Fitness for Duty Evaluation and she was found fit for duty.

9.  On 1 December 2001, the applicant was promoted to master sergeant.

10.  On 12 September 2003, the applicant was transferred to the Retired Reserve.

11.  There is no evidence of record which shows the applicant filed a claim for incapacitation pay.

12.  In the processing of this case an advisory opinion was obtained from the Director, Health Policy and Services, Office of the Surgeon General.  The advisory official states:

* The applicant has the past medical history of iron deficiency anemia
* Iron deficiency anemia is treatable with oral and intravenous iron, as well as by transfusion in severe situations
* Oral iron therapy is not considered incapacitating
* Her level of anemia at the time of diagnosis (hemoglobin of 8.3) was symptomatic, and expected to respond to treatment
* Subsequent hemoglobin levels, drawn after oral iron therapy, were above 10, consistent with a partial recovery to a level of mild anemia that would not be incapacitating
* That office did not find that the applicant's diagnosis, prognosis, or required course of therapy were incapacitating or prevented the applicant from returning to her civilian or military occupation    

13.  The advisory opinion was furnished to the applicant for information to allow her the opportunity to submit comments or a rebuttal.  On 9 November 2010, counsel responded.  In summary, he stated:

* In light of regulatory guidance governing entitlement to incapacitation pay, the advisory opinion is flawed and provides little insight into adjudicating this case
* The advisory opinion concludes that "oral iron therapy [for anemia] is not considered incapacitating" without providing any regulatory justification for its conclusion
* The regulations governing incapacitation pay do not define what conditions are incapacitating based solely upon the type of condition or treatment

14.  Counsel cites Army Regulation 135-381 (Incapacitation of Reserve Component (RC) Soldiers) and states because the applicant's condition was determined by an informal LODI to have occurred in the LOD, the applicant's case implicates one of these factors considered when awarding incapacitation 


pay - her ability to perform normal military duties.  There is sufficient evidence in this case that the applicant's condition satisfied this requirement.  Her condition, as evidenced by crushing pain in her chest and arm, initially led to a trip to the emergency room.  Her condition led to numerous subsequent examinations and a period of duty restrictions requiring reduced physical activity.  Logically, this evidence suggests the applicant's condition had a clear impact on her ability to perform her military duties.

15.  Counsel points out the advisory opinion states the applicant's level of anemia at the time of diagnosis was symptomatic and expected to respond to treatment.  However, the advisory opinion's suggestion that the applicant's anemia was stable enough that it could not be found incapacitating is unsupported by the evidence.  Her medical records generated during the several years following the events informing the applicant's request for incapacitation pay indicate her anemia had not stabilized in the years following her diagnosis.  For example, on 3 December 2002 the applicant complained of fatigue and menstrual blood loss - hallmark symptoms of anemia.  Approximately 2 years later, on 10 February 2004, the applicant indicated she continued to suffer from fatigue that she noted had persisted for the previous 5 years.  Clearly, any conclusion that the applicant's condition was stable enough to preclude a finding of incapacitation is unsupported by the continuing nature of her anemia.
 
16.  Counsel further states the advisory opinion focuses its analysis on whether the applicant's condition was incapacitating and, thus, whether the applicant was entitled to incapacitation pay and does not specifically discuss the applicant's argument for entitlement to the ADME program.

17.  Army Regulation 135-381 establishes policies regarding incapacitation pay for Soldiers of the Army National Guard/Army National Guard of the United States, and the U.S. Army Reserve.  This regulation states that Tier 1 incapacitation pay refers to claims by Soldiers who are unfit to perform their military duties as a result of an injury, illness, or disease caused by military service.  A determination of fitness for duty must be made by a military medical physician.  Eligible Soldiers are paid full military pay and allowances, less any civilian earned income received during the month of the claim, and are not eligible to draw retirement points. 

18.  Army Regulation 135-381 states that Tier II incapacitation pay refers to claims by Soldiers who are determined fit to perform their military duties by a military medical physician but who are unable to perform their civilian jobs and can demonstrate a loss of civilian earned income.  Eligible Soldiers will be 


reimbursed for lost civilian earned income up to full military pay and allowances and are eligible to draw retirement points.

19.  Army Regulation 135-381, paragraph 1-13a, states that Soldiers are entitled to a portion of the same monthly pay and allowances as are provided members of the Active Army with corresponding grade, length of service, marital status, and dependent status for each period the Soldier is unable to perform military duties (Tier l cases) or can demonstrate loss of compensation from civilian earned income (Tier II cases).  Maximum amount payable for any given period is an amount equivalent to military pay and allowances for the period in question.

20.  Army Regulation 135-381, paragraph 1-9, states that members able to perform military duties, but demonstrating a loss of earned income as a result of an in the line of duty incapacitation, will be compensated for lost earned civilian income in the amount not to exceed military pay and allowances for which the member would be entitled if serving on active duty.

21.  Army Regulation 135-381, chapter 4 states that Title 37, U.S. Code, section 204, provides authority for continuation of pay and allowances under certain circumstances to Soldiers who are disabled in the LOD from injury, illness, or disease.  For the purposes of this regulation such continuation of pay and allowances is referred to as “incapacitation pay.”  Prerequisites for entitlement to incapacitation pay are inability to perform normal military duties or satisfactory demonstration of loss of nonmilitary earned income.  On release from active duty or termination of inactive duty training, a Soldier may qualify for this entitlement.  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.  Soldiers will not be issued active duty orders in place of incapacitation pay as a means of providing benefits to which they might otherwise not be entitled.

22.  Army Regulation 135-381, paragraph 7-2a, states that Soldiers who incur or aggravate an injury, illness, or disease while on orders for more than 30 days may elect to extend on active duty until treatment is completed.  Chapter 2 states that RC Soldiers who incur or aggravate an injury, illness, or disease while participating in training may be treated in a medical treatment facility or be provided medical care elsewhere at Government expense.  Soldiers are authorized follow up medical care for injury, illness, or disease incurred or aggravated in LOD after completion of active or inactive duty training.


23.  Department of the Army Warrior Transition Unit Consolidated Guidance (Administrative) states, in pertinent part, that the ADME program is designed to voluntarily place Soldiers on temporary active duty, to evaluate or treat RCs with in-the-line-of-duty service-connected medical conditions or injuries, and to return Soldiers back to duty within his or her respective RC as soon as possible.  If return to duty is not possible, the Soldier will be processed through the Army Physical Disability Evaluation System.  The medical condition incurred or aggravated must have occurred while in an Individual Duty for Training or non-mobilization active duty status and medical care will extend beyond 30 days.  The medical condition must prevent the Soldier from performing his or her military occupational specialty/area of concentration (MOS/AOC) within the confines of a physical profile issued by military medical authority.  A Medical Review Board must determine that the Soldier is eligible for ADME.  An RC Soldier and his or her command may apply to the ADME program through one of two avenues, emergent request or non-emergent request.  In an emergent situation only and when the Soldier is incapacitated to the point that he or she cannot make application, the unit may act on the Soldier’s behalf and file application for the Soldier to be placed onto ADME status.  In all cases, a Soldier must be found unable to perform his or her MOS/AOC within the confines of a physical profile to enter or continue in the ADME program.

24.  Department of Defense Directive 1241.1, paragraph 4.5, states that the Military Departments shall authorize pay and allowances, to the extent permitted by reference (c), for a RC member who is not medically qualified to perform military duties, as determined by the Secretary concerned, because of an injury, illness, or disease incurred or aggravated in the line of duty, or to provide pay and allowances to a member who is fit to perform military duties, but experiences a loss of earned income because of an injury, illness, or disease incurred or aggravated in the line of duty.  This is commonly referred to as incapacitation pay.   

DISCUSSION AND CONCLUSIONS:

1.  Counsel requests a determination by the Board that the applicant was wrongfully denied ADME in 2001 and award of all back pay, medical pay, or any other compensation the Board deems appropriate; or, in the alternative, granting the applicant incapacitation pay.

2.  Soldiers eligible for ADME status are those requiring treatment or evaluation for 30 days or more for an injury, illness, or disease incurred or aggravated in the LOD.  They must also be on a profile that prevents their performing duties in their MOS/AOC.  

3.  Evidence of record shows, based on information provided by the applicant's physician on 3 May 2001, her request for ADME was disapproved on 14 May 2001.  Her physician indicated she was taking iron pills, her anemia had been corrected, her prognosis was good, and her condition was not incapacitating.  In addition, the disapproval memorandum for ADME states the applicant "also states she is able to return to her civilian employment."

4.  There is no evidence which shows the applicant was unable to perform her normal military duties in her MOS by a military medical authority.

5.  Based on the foregoing, it appears there was no requirement for ADME in this case.

6.  The governing regulation states that Tier 1 incapacitation pay refers to claims by Soldiers who are unfit to perform their military duties as a result of an injury, illness, or disease caused by military service.  The regulation states that Tier II incapacitation pay refers to claims by Soldiers who are determined fit to perform their military duties by a military medical physician but who are unable to perform their civilian jobs and can demonstrate a loss of civilian earned income.

7.  There is no evidence of record which shows the applicant filed for incapacitation pay or met the criteria for incapacitation pay.  Therefore, there is insufficient evidence on which to grant incapacitation pay in this case. 

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)                                         AR20100013170



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100013170



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1