IN THE CASE OF:	  

		BOARD DATE:	    17 September 2013

		DOCKET NUMBER:  AR20120016632 


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 orders placing him on active duty medical extension (ADME) during the period 21 October 2009 to 20 April 2010.

2.  The applicant states:

* he broke his spine and sternum as the result of a military parachuting accident
* he should have been placed on ADME, but he was erroneously told that he was not sufficiently injured to qualify for ADME
* his injuries were extensive and debilitating
* because he was without any source of funds, he was obliged to return to work against his and his doctor's better judgment
* working aggravated the injury
* he should have been placed on ADME immediately after his accident for the period required to heal

3.  The applicant provides:

* Line of duty (LOD)
* Civilian medical records
* Military medical records
* Personal trainer document



CONSIDERATION OF EVIDENCE:

1.  Having prior active service in the Regular Army, the applicant enlisted in the Army National Guard (ARNG) on 23 April 1998.  He was promoted to sergeant first class (SFC) on 4 August 2002.

2.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 22 October 2009, shows he injured his back on 21 October 2009 while participating in parachute operations.  He landed in a tree and subsequently fell approximately 30 feet.

3.  He was admitted to a civilian hospital and x-rays, including CT, showed he had a compression fracture of a vertebral body without loss of height and a cracked sternum.  He was discharged 2 days later with a corset and pain medications.  He was instructed to avoid heavy lifting and no work for 2 weeks until he was reassessed.

4.  The available records do not contain:

* a statement from his employer, or even from the applicant showing his duties at work
* a statement from his physician recommending ADME
* the results of the follow-up evaluation 2 weeks after his discharge  

5.  His DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) covering the period 1 October 2009 through 30 September 2010 shows a rating of "Excellence (Exceeds standard)" for the category "Physical Fitness and Military Bearing" by his rater with the following bullet comments:

* consistently scores 300 or greater on the PT (physical training) test
* ensures that the team has an effective PT program
* maintains a consistent military bearing

6.  He provides a statement, dated 6 April 2012, from a personal fitness trainer that worked with him doing muscle strengthening exercises, twice a week, starting 4 weeks after his injury.  

7.  He also provides a self-authored letter, dated 7 May 2012, wherein he states:

	a.  he is writing this letter due to a medical/pay issue that occurred due to an injury sustained on 21 October 2009.  He was a jumpmaster on an airborne operation that resulted in a broken back, a broken sternum, and other injuries due to a parachute malfunction where he was caught up in the trees, then fell
35 feet.  The normal procedure should have been to put a severely injured Soldier on ADME until he/she was healed enough to return to work, but in his case that was not approved "because he is not injured badly enough.  He will have to file for INCAP (incapacitation) pay."  He was also told he would have to wait until he was healed to file for INCAP pay.

	b.  approximately 2 months later in December 2009, he was mislabeled as "returned to work" due to a mistake where he was paid for attending the unit Christmas party.

	c.  as time went on with no income, since he could not work and he was not receiving ADME money and he had been told he could not file for INCAP pay until the end, he realized he had a serious financial crisis coming soon.  As the bills were piling up he did not see any other choice so he tricked his physician into giving him a note to return to work.  He prematurely returned to work that resulted in reinjuring and prolonging his injuries.  After working for approximately 6 weeks, he had to stop.

	d.  a stack of paperwork including medical reports, the LOD report, sworn statements, employer statements, civilian and military physician statements, INCAP pay statements have been submitted to receive INCAP pay with no results.  He contacted his Congressman's office in June 2011.  On 24 April 2012, a medical board was convened and decided he should receive 6 weeks of INCAP pay, even though he was legitimately out of work for 5 months from his injuries.  After all this, to be informed he would be given 6 weeks of pay (not even at his full rate) is completely insulting to be quite honest.  All of this could easily have been avoided had he received ADME as he should have.

8.  In the processing of this case, on 20 June 2013, an advisory opinion was obtained from the Chief, Personnel Policy Division, National Guard Bureau.  The advisory opinion was returned without action.  The advisory official points out:

	a.  a draft LOD was uploaded by the Massachusetts ARNG (MAARNG) healthcare noncommissioned officer on 17 November 2009 and was not approved by the unit commander until 31 March 2010.  The LOD was forwarded to the MAARNG G-1 on the same date and approved on 7 April 2010.

	b.  upon coordination with the MAARNG, it was determined that the applicant was not expected to be out of work for more than 60 days and it was recommended he apply for INCAP.  There is no evidence that INCAP pay was ever requested by the applicant.  In addition, there is no evidence the applicant was seen by a military treatment facility or the Department of Veterans Affairs.

	c.  in order to receive INCAP, it is recommended the applicant submit a packet to the Health Systems Specialists (HSS) office with a copy of specified documentation.

	d.  the State concurs with this recommendation.

9.  The advisory opinion was furnished to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  On 5 July 2013, he responded.  In summary, he states:

	a.  there seems to be a great deal of missing and some erroneous information.

	b.  on 21 October 2009, he was on an airborne operation that resulted in a broken back, broken sternum, and multiple other injuries due to a parachute malfunction.

	c.  for approximately 2 months he went without pay due to the fact he could not work because of his injuries.  He went back to work prematurely in late December 2009 and reinjured his back and sternum.  He was not able to work until May 2010.  A packet was submitted through his unit to receive INCAP pay.  There was never any response.  He put together another packet asking for
4 1/2 months of compensation and submitted it directly to the medical detachment noncommissioned officer in charge.  It was kicked back and they only paid him for approximately 17 days.

	d.  the advisory opinion states he broke his sternum, but he broke his back and sternum and he had other injuries to his face, neck, spine, and legs.

	e.  the advisory opinion states he was not expected to be out of work more than 60 days.  Nobody could recover from those injuries in 60 days.  He does not know where they came up with that because he was never once evaluated by anyone in the MAARNG medical detachment.  They never once contacted him to see if he was alright or needed anything.  After his initial release 3 days later from Baystate Medical Center, he was pretty much left out to dry.  The unit helped him get to his first post-injury appointment, then after that he was on his own for everything else.  He could not drive and he could hardly ride in a car for more than 10 minutes without being in serious pain.

	f.  the advisory opinion states there is no evidence that INCAP pay was ever requested by the Soldier.  He has documentation and witnesses that would say otherwise.  He applied two times for INCAP pay.  The first time it just "vanished" out of the MAARNG system and the second time it was kicked back (reason unknown); however, they did pay him for approximately 17 days.  Since they paid him for 17 days of INCAP pay, he is guessing they must know a packet was submitted.

	g.  the advisory opinion states he should submit an INCAP pay packet.  He applied for INCAP pay twice.  It takes weeks to put all the information together for those packets.  How could they say this?

	h.  the Army did not take care of him.  As a result of this accident, there has been tremendous physical pain, not to mention the financial pain incurred on top of that.  He is reminded of this incident every time he works out.  His is certain he will never heal properly.  What is the compensation for that?

10.  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 Reserve Component Soldiers with in-line-of-duty service-connected medical conditions or injuries, and to return Soldiers back to duty within his or her respective Reserve Component unit 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 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 or 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.  A Reserve Component 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.

DISCUSSION AND CONCLUSIONS:

1.  To be eligible for the ADME program:

	a.  the Soldier's medical condition must have occurred while in an Individual Duty for Training or non-mobilization active duty status and medical care will extend beyond 30 days.

	b.  the medical condition must prevent the Soldier from performing his or her MOS within the confines of a physical profile issued by military medical authority.

	c.  a Medical Review Board must determine that the Soldier is eligible for ADME.

2.  The applicant contends he broke his spine and sternum on 21 October 2009 as the result of a military parachuting accident and he should have been placed on ADME for the period 21 October 2009 to 20 April 2010.  He also contends his injuries were extensive and debilitating.  

3.  He had 2 injuries that were uncomfortable, but do not appear to have been dangerous.  All he needed was activity modification until they healed (he was discharged only with a corset and pain medications).  Depending on the requirement of his job, a return to work after he no longer needed narcotic pain medications and could safely drive is a reasonable expectation.  Without his 2 week follow-up evaluation available for review and with the knowledge that he was eventually approved for 17 days INCAP pay, it is reasonable to presume in this case 2 weeks was the appropriate time to return to work.  

4.  He has not shown that he was unable to work for several months following his injury.  If this were indeed the case, the appropriate remedy would be INCAP pay.  The state of Massachusetts, after reviewing his medical documents and recommendation, apparently determined he was incapacitated for 17 days.  Even if the applicant could show that he was unable to work for several months, ADME is not approved for "healing" as the applicant contends, but is used when extended medical treatment (30 days or more) is required.  In this case, the applicant did not require treatment.  He required activity modification for some unknown period of time, and as far as the record shows he was released to return to work in 2 weeks.

5.  ADME can sometimes be approved for treatment, but is inappropriate for convalescence.

6.  There is no evidence that shows he was eligible for the ADME program.

7.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.





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)                                         AR20120016632



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ABCMR Record of Proceedings (cont)                                         AR20120016632



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