IN THE CASE OF:	  

		BOARD DATE:	    6 October 2011

		DOCKET NUMBER:  AR20110003702 


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) investigation be reopened and completed
* a review of the final findings if his injury is determined not in line of duty (NILOD)

2.  The applicant states the LOD investigation was not completed as required due to several reasons, in effect:  

   a.  There were several changes as the unit prepared and deployed as well as the termination of his active duty special work (ADSW) status.  

   b.  He was allowed to fall off active duty orders, lose his job and health benefits, unless he elected to pay out of pocket expenses.  He also lost time towards retirement, promotion, and he had to get employment in the civilian sector to help him get through this ordeal.  

   c.  He was counseled to the effect that the LOD investigation had been completed and sent before a Military Occupational Specialty/Medical Retention Board (MMRB) for an assessment; then he was told an error had occurred and he should have been sent to a Medical Evaluation Board (MEB).  
   
   d.  He was discharged from the Army National Guard (ARNG) without the LOD being completed, but he was told it had been completed and was counseled to that effect.  
3.  The applicant provides:

* DD Forms 2173 (Statement of Medical Examination and Duty Status), dated 4 October 2010 and 31 October 2007
* Self-authored/unsigned DD Form 261 (Report of Investigation - LOD and Misconduct Status), dated 16 February 2009
* Orders 349-1026 (Discharge Orders), dated 15 December 2010
* LOD Determination Memorandum, dated 23 June 2009
* Duty Appointment Memoranda - Investigating Officer (IO)
* Soldier's Rights and Warning Statement
* Various military and/or civilian medical reports, charts, records, screens, tests, and other medically-related documents
* Counseling statements
* MMRB Memoranda
* Various email exchanges

CONSIDERATION OF EVIDENCE:

1.  On 17 October 1990, the applicant enlisted in the Regular Army and held military occupational specialty 96B (Military Intelligence Analyst).  He served through a reenlistment and he was honorably released from active duty on 23 November 1996. 

2.  He enlisted in the Minnesota ARNG (MNARNG) on 24 November 1996 and attained the rank/grade of sergeant (SGT)/E-5 on 11 November 1997.  He was honorably discharged on 19 September 1998.

3.  On 2 June 2000, while in a civilian status, he injured his back, had surgery, and received a permanent civilian partial disability rating of 14% on 5 March 2001.  His doctor advised him to find a new job that required less lifting, bending, and pulling.  He was also advised that he should expect to experience ongoing back discomfort due to spondyloisthesis (which occurs when one vertebrae body slips forward over the vertebrae beneath it).  He continued to have back pain due to increased activity.  Surgery was recommended in March 2002, but he declined. 

4.  On 31 May 2006, after a break in service, he enlisted in the MNARNG; however, he did not disclose his previous back surgery on his medical questionnaire.  

5.  On 26 June 2006, he entered an ADSW status and he was assigned to 2nd Battalion, 135th Infantry.  He was honorably released from active duty on 9 April 2007.
6.  On 16 April 2007, he entered an ADSW status and he injured his back while lifting weights during physical fitness training on 6 June 2007.  He underwent surgery on 22 August 2007 and he was released from active duty on
30 September 2007.  He had been in an ADSW status at the time; therefore, his unit was not aware of his injury and did not begin an LOD investigation.  However, he started receiving medical bills, and requested an LOD in October 2007. 

7.  An IO was appointed in October 2007 to investigate the injury; however, this IO was transferred out of the unit.  A new IO was appointed in October 2008.  The IO considered the applicant's records and concluded that the applicant's 
6 June 2007 back injury was NILOD.  His preexisting back injury and subsequent actions fit the definitions of simple negligence.  The IO stated:

	a.  the applicant was not enrolled in the MNARNG when he sustained his injury in 2000.  He worked as an installer of power systems for communications equipment at the time.  He was lifting a frame when he sustained that injury and he suffered lower back pain radiating down his right leg. 

	b.  he received a Magnetic Resonance Imaging (MRI) in June 2000.  The results indicated he had grade 1 spondylolisthesis of the L5 on S1 and disc herniation.  His physician recommended clinical correction.  The overall finding was consistent with degenerative disc disease.  He underwent surgery on
8 September 2000.  His surgery also confirmed the preoperative diagnosis of spondylolisthesis of the L5 on S1 and disc herniation.

	c.  It took the applicant several months to recover.  He was put on a series of civilian work profiles limiting his work hours and lifting abilities.  His doctor advised him to find a different job with less bending, lifting, and pulling.  He ultimately received a civilian permanent disability rating of 14% in March 2001.  His pain persisted with increased activity.  In March 2002, his doctor advised him again of the previously recommended fusion surgery procedures but the applicant declined. 

	d.  Six years later, in 2006, he enlisted in the MNARNG.  He was on ADSW orders when he suffered his second injury.  On 6 June 2007, he was lifting weights when he began to feel a searing heat and tightness of his lower back.  He was seen by a doctor the next day.  His main complaints were his left elbow and right lower back pain.  He was referred for an MRI scan which revealed spondylolisthesis, L5 on S-1 and probably impingement on the nerve roots.  Degenerative changes were present.  A second MRI was conducted on 26 June 2007.  The doctor recommended spinal fusion surgery.

	e.  The applicant tried a series of non-operative measures that included physical therapy, anti-inflammatory medications, injections, chiropractic, and pharmacotherapy between June and August 2007.  His discomfort did not subside.  

	f.  In October 2007, the applicant's doctor qualified him as 100% disabled and he was exempt from monthly drills because of his back surgery.  In September 2008, he returned for a follow-up.  He still complained of discomfort.  The applicant's doctors recommended that he not return to the MNARNG and rather seek sedentary type employment, avoiding bending, lifting, and twisting.  On 
18 October 2008, the applicant was placed on a permanent physical profile that excused him from the Army Physical Fitness Test (APFT).

	g.  The IO recommended that the applicant:

* undergo daily Yoga or Pilates exercises
* undergo further tests for follow-up surgery
* was unable to perform the requirements of his infantry duties
* be discharged
* be denied a Department of Veterans Affairs (VA) disability

8.  On 5 December 2009, an MMRB met at the Joint Force Headquarters, MNARNG to evaluate the applicant's medical condition of "lumbar spine HNP," and spondylolisthesis.  His medical condition is indicated as "NILOD."  The MMRB recommended that the applicant be put on a 3-month probation period.

9.  On 26 June 2010, an MMRB met at the Joint Force Headquarters, MNARNG to evaluate the applicant's medical condition of lumbar spine spondylolisthesis.  His medical condition is indicated as "NILOD."  Based on a review of his most recent physical profile and his medical records, the MMRB determined he did not meet the physical requirements for deployment in a world-wide field environment. The MMRB recommended referral to the Physical Disability Evaluation System (PDES).  He was given two options:

* Request evaluation by a non-duty related physical evaluation board (PEB)
* Request medical separation

10.  His records show he received the notification and he was provided a timeframe to respond but he failed to do so. 




11.  He was honorably discharged from the ARNG on 28 July 2010.  His orders listed the authority for his discharge as paragraph 6-35l(8) (Medically Unfit for Retention), National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management).  An NGB Form 22 (Report of Separation and Record of Service) was issued at a much later date by the MNARNG.  This form together with his NGB Form 23A (ARNG Current Annual Statement) shows he completed 9 years of qualifying service towards non-regular retirement. 

12.  An advisory opinion was obtained from the NGB on 16 August 2011 in the processing of this case.  An official recommended disapproval of the applicant's case.  The official stated the applicant:

* injured his back on 2 June 2000 as a civilian and received a civilian disability rating
* was counseled by his doctor and advised to find a job that did not involve bending, lifting, or pulling
* continued to have back pain due to increased activity, surgery was recommended, but the applicant declined
* injured his back again on 6 July 2007 while lifting weights
* was again advised to have surgery which ultimately took place on 22 August 2007
* was deemed 100% disabled and exempt from monthly drills; he was also issued a permanent physical profile exempting him from the APFT
* injuries were investigated and the IO determined his injuries were NILOD due to a preexisting condition and negligence
* failed to exercise a degree of care that a normal person in a similar situation would have 

13.  In his rebuttal, the applicant stated:

* his 14% disability rating was utilized by an insurance company to determine a fair settlement for loss of wages and inability to go back to work
* he was advised of ongoing discomfort but he was never told he would be rendered completely incapacitated
* his doctor did not blame his first injury on spondylolisthesis
* his doctor told him if he sustained another injury, he would recommend fusion due to shear loss of disc material at that level
* he was working as a crime analyst when the ARNG recruited him in 2006; his job did not require any physically demanding activities
* no one advised him that he could or should not work out or exercise
* when he sustained his second injury he took care and erred on the side of caution; he was more prudent
* he has never seen any paperwork that rendered him 100% disabled
* he was injured in 2007 and reported the injury right away; yet, despite months of waiting, three IOs, Inspector General involvement, and LOD are still incomplete
* many questions remain unanswered
* he does not believe that performing weight training as a form of physical fitness was negligent
* he is mature and he has always showed excellent judgment, care for his body, and overall wellbeing
* his case was grossly mishandled and his unit failed to address his issues
* he would like to receive the document that shows he is rated 100% disabled
* he would like to know why it took 3 years to administratively close his case
* he requests a personal hearing 

14.  National Guard Regulation (NGR) 600-200 establishes standards, policies, and procedures for the management of ARNG enlisted Soldiers in the functional areas of classification and reclassification, assignment and transfer, including interstate transfer, enlisted separations, and other personnel management issues.  Chapter 6 covers enlisted separations.  Paragraph 6-35l (8) provides for the separation of an enlisted ARNG Soldier who is medically unfit for retention per Army Regulation 40-501 (Standards of Medical Fitness).  Commanders, who suspect that a Soldier may not be medically qualified for retention, will direct the Soldier to report for a complete medical examination per Army Regulation 40-501.  Commanders who do not recommend retention will request the Soldier's discharge.  When a medical condition was incurred in LOD, the procedures of Army Regulation 600-8-4 (LOD, Procedures, and Investigations) will apply.  Discharge will not be ordered while the case is pending final disposition.

15.  Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment including officer procurement programs, retention, and separation including retirement.  Chapter 10 sets basic policies, standards, and procedures for medical examinations and physical standards for the ARNG.

	a.  Paragraph 10-5 states, prior to initiating active duty orders for more than 30 days, the ARNG Soldier must have a valid periodic health assessment (within 1 year) and must have no outstanding medical issues that require follow-up, to include a temporary profile (DA Form 3349). 

	b.  Each ARNG Soldier is individually responsible for the maintenance of his or her medical, physical, and mental fitness.  This includes correcting remediable defects, avoiding harmful habits, and weight control.  The maintenance of good strength and aerobic conditioning is of prime importance to the modern Soldier.  Completion of the APFT and the ability to perform the Soldier’s MOS duties are the minimum level of fitness expected from the ARNG Soldier.

	c.  Paragraph 10-25 (Soldiers pending separation for failing to meet medical retention standards). 

		(1)  In the Line of Duty (ILOD).  Soldiers pending separation for ILOD injuries or illnesses will be processed in accordance with Army Regulation 
40-501 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

		(2)  NILOD.  (Department of Defense Instruction (DODI) 1332.38 states that members with non-duty related impairments are eligible to be referred to the PEB solely for a fitness determination, but not a determination of eligibility for disability benefits.  Determination of whether a non-duty case is forwarded to the PEB is at the request of the Soldier.  The Soldier will have a completed LOD or memo that notifies him/her of non-duty related findings NILOD.  The Soldier may not challenge the PEB findings in person.  The Military Personnel Office is responsible for notifying the Soldier, in writing, that his/her injury is NILOD and that he/she is pending separation for a medical disqualifying condition.  The notification will also advise the Soldier that he/she has the right to prepare a Non-Duty PEB packet for a fitness determination.  The Soldier is responsible to request his/her packet be submitted to the PEB for adjudication.  The Soldier is responsible for preparing his/her packet for submission to the PEB.

16.  Army Regulation 600-8-4 prescribes policies and procedures for investigating the circumstances of disease, injury, or death of a Soldier.  It provides standards and considerations used in determining LOD status.  The regulation defines simple negligence as the failure to exercise that degree of care which a similarly situated person of ordinary prudence usually takes in the same or similar circumstances, taking into consideration the age, maturity of judgment, experience, education, and training of the Soldier.  An injury, disease, illness, or death caused solely by simple negligence is ILOD unless it existed prior to entry into the Service or occurred during a period of AWOL (except when the Soldier was mentally unsound at the inception of the unauthorized absence).

	a.  Paragraph 2-1 states LOD determinations are essential for protecting the interest of both the individual concerned and the U.S. Government where service is interrupted by injury, disease, or death.  Soldiers who are on active duty (AD) for a period of more than 30 days will not lose their entitlement to medical and dental care, even if the injury or disease is found to have been incurred NILOD and/or because of the Soldier’s intentional misconduct or willful negligence, Section 1074, Title 10, U.S. Code (10 USC 1074).  A person who becomes a casualty because of his or her intentional misconduct or willful negligence can never be said to be injured, diseased, or deceased ILOD.  Such 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 NILOD only be made after following the deliberate, ordered procedures described in this regulation.

	b.  Paragraph 2-5 (formal LOD investigations) states that a formal LOD investigation is a detailed investigation that normally begins with DA Form 2173 completed by the MTF (Military Treatment Facility) and annotated by the unit commander as requiring a formal LOD investigation.  The appointing authority, on receipt of the DA Form 2173, appoints an investigating officer who completes a DD Form 261 and appends appropriate statements and other documentation to support the determination, which is submitted to the General Court-Martial Convening Authority for approval.  

	c.  Paragraph 2-6 (Standards applicable to LOD determination) states that decisions on LOD determinations will be made in accordance with the standards set forth in this regulation.  Injury, disease, or death proximately caused by the Soldier’s intentional misconduct or willful negligence is "NILOD—due to own misconduct."  Simple or ordinary negligence or carelessness, standing alone, does not constitute misconduct.  An injury, disease, or death is presumed to be in LOD unless refuted by substantial evidence contained in the investigation.  LOD determinations must be supported by substantial evidence and by a greater weight of evidence than supports any different conclusion.  The evidence contained in the investigation must establish a degree of certainty so that a reasonable person is convinced of the truth or falseness of a fact, considering all direct evidence, that is, evidence based on actual knowledge or observation of witnesses; and/or al indirect evidence, that is, facts or statements from which reasonable inferences, deductions, and conclusions may be drawn to establish an unobserved fact, knowledge, or state of mind.

	d.  Paragraph 3-10 (Actions by reviewing authority (ARNG)), states the ARNG reviewing authority will take the following actions:  (a) review the investigation for completeness and accuracy; the report of investigation may be returned through review channels for corrective action, if necessary; (b) complete the appropriate blocks on the DD Form 261, approving or disapproving the determination of the appointing authority.  In no case, however, will the reviewing authority "disapprove" without stating the reasons for disapproval and giving the new determination.  If the new proposed determination is adverse to the Soldier and the Soldier has not been previously advised of the adverse determination per paragraph 3–8f(6), the Soldier will be so advised and his or her response, if any, will be considered before taking action.  
17.  Army Regulation 15-185 (ABCMR) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant’s request for the correction of a military record.  It states the ABCMR considers individual applications that are properly brought before it.  In appropriate cases, it directs or recommends correction of military records to remove an error or injustice.  Paragraph 2-11 states applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant entered the MNARNG in 2006.  When he entered, he failed to disclose the back surgery he had in 2000 for a disc herniation.  The civilian doctor advised the applicant to avoid heavy lifting and that the applicant would later need additional surgery.  

2.  On 6 July 2007, while serving in an ADSW status with the MNARNG, he reinjured the same disc while weight lifting.  His unit eventually initiated a LOD inquiry and appointed an IO in October 2007.  That IO did not complete the investigation and a new IO was appointed in 2008.  This IO completed the LOD report on 23 June 2009.  She (the IO) concluded the applicant’s back injury was NILOD.  The IO reasoned that the applicant’s injury was the result of simple negligence (which normally is considered ILOD) and NILOD because it stemmed from a preexisting condition.  

3.  The IO’s determination was forwarded to the NGB for final approval.  On 16 December 2009, the NGB returned the package to the MNARNG to have the proper officer sign the DD Form 261 as the appointing authority and provide a copy of the adverse LOD notification to the applicant.  Based on the evidence of record and the e-mail correspondence with NGB, it appears the LOD was never completed.

4.  In the meantime, the MNARNG convened an MMRB in December 2009.  This board noted his medical condition was NILOD, but recommended a 3-month probation period to see if his condition improved enough to meet standards.  On
26 June 2010, the MMRB again met.  The board’s report noted the applicant’s back condition was NILOD, found he did not meet the physical requirements for deployment, and recommended referral to the PDES.  Since the board found his condition was NILOD his only options were to request a non-duty related PEB or request medical separation.  The applicant acknowledged receipt of the MMRB’s 

findings but failed to provide an election in the time provided.  The MNARNG discharged the applicant on 28 July 2010 for being medically unfit for retention.  

5.  The applicant’s separation from the MNARNG was premature because the LOD was apparently not completed.  NGR 635-200, paragraph 6-35 l(8) covers Soldiers who are medically unfit for retention under Army Regulation 40-501 and provides:

* commanders who suspect that a Soldier may not be medically qualified for retention will direct the Soldier to report for a complete medical examination per Army Regulation 40-501  
* commanders who do not recommend retention will request the Soldier’s discharge  
* when a medical condition was incurred ILOD, the procedures of Army Regulation 600-8-4 will apply  
* discharge will not be ordered while the case is pending final disposition

6.  Although this paragraph indicates it applies to medical conditions incurred ILOD, by implication it applies as well to a condition deemed NILOD when the LOD investigation is not complete.  Under Army Regulation 600-8-4, an LOD determination, whether favorable or unfavorable, undergoes several levels of review after the IO completes the report.  The appointing authority who detailed the IO and reviewing authority have the option of recommending disapproval of the IO’s recommendation.  The final approval authority has the option of approving a finding different from that recommended by the IO.  In other words, regardless of what the IO recommends, the final decision concerning LOD status rests with the final approval authority and remains subject to change.  

7.  Army Regulation 40-501 supports this interpretation.  Paragraph 10-25(a) covers processing of Soldiers under the PDES for a condition not incurred in the LOD.  A Soldier in this situation has the option of requesting a non-duty related PEB.  If the Soldier elects to have a PEB, this provision requires the Soldier to have a copy of the LOD or a memo notifying him of the non-duty related findings. This paragraph again suggests that the LOD must be final before eliminating the Soldier.  

8.  In this case, the available evidence suggests the applicant’s LOD was never completed.  The MMRB came up with the right result in recommending the applicant’s discharge.  However, this action was premature.  The LOD should have been completed first.  


9.  With respect to his request for a personal hearing, his request for a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, it is concluded that the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, it is concluded that a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

10.  With respect to his request to provide him with the documentation that shows he was 100% disabled, although the IO's investigation refers to this issue, it is unclear who authorized him such disability or for what conditions.  It is possible he was rated by the VA and received service-connected disability compensation. It is also possible the IO implied the applicant's condition made him 100% unable to meet ARNG retention standards.  In any case, the applicant should address this specific issue with the MNARNG as this Board is not privy of the reasons the IO made the statement regarding the 100% disability.

11.  In view of the above evidence it is recommended that the applicant be granted relief.  Specifically, it is recommended that the MNARNG:

* reinstate the applicant into the ARNG
* complete the LOD investigation and obtain a final action from the NGB
* reinitiate discharge action if warranted after the LOD investigation has been completed and approved

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 all State ARNG records and the Department of the Army records of the individual concerned be corrected by:

* voiding his 28 July 2010 discharge from the ARNG
* completing the LOD investigation and obtaining a final action from NGB
* reinitiating discharge action if warranted after completion and approval of the LOD investigation



      ___________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)                                         AR20110003702



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110003702



12


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1