BOARD DATE:	  13 March 2014

		DOCKET NUMBER:  AR20130011137 


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, in effect, correction of his records to show a line of duty determination (LOD) was completed for injuries he received in 1979, 1996, and 2001.

2.  The applicant states, in effect:

* on 8 September 2001, he incurred an injury as a result of a training accident
* an LOD was never completed because the unit was functioning separately   
* although his injury was reported, to avoid expensive civilian medical support (aero-medical evacuation) his company commander, first sergeant, and platoon leader failed to complete the LOD following training
* he never received proper medical treatment through the military as there was little to no medical support available the weekend of his accident
* he had to travel and was caught out of town and the situation was very unorganized
* he sought treatment once he returned to town
* there was a clear connection to his injury and service and his records should show a service-connected injury and disability
* personnel were not available to go through documents properly at the time of his discharge
* clarification of his earlier request could have been addressed through email, phone, or fax
* he was not given a complete review of his medical records
* he had accidents which were not properly documented in 1979, 1996, and 2001
* no one ever told him he could request the Army update his records to include missing LOD's
* he desires to have LOD's for each injury
* he has been applying for Department of Veterans Affairs (VA) benefits since 2007

3.  The applicant provides:

* self-authored letter, dated 1 June 2013
* ABCMR Docket Number AR20120018288, dated 7 May 2013 (administratively closed)
* medical extracts
* 4 sworn statements
* Retirement Points Statement

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 enlisted in the Army National Guard (ARNG) on 9 February 1979.

3.  DA Forms 2823 (Sworn Statement), dated 30 July 1984 and 2 August 1984, show the applicant and another Soldier fell on rocks in a creek bed while performing night maneuvers.

4.  An emergency outpatient record from the Saint Alphonsus Regional Medical Center, Boise, ID, dated 31 July 1984, shows the applicant fell while on maneuvers with the ARNG injuring his left elbow.  X-rays of his elbow did not reveal any sign of articular effusion or anything consistent with a fracture.  He was given a sling and instructed to diminish activities for 2 days.  He was dismissed as being stable and instructed to return if there were any problems.

5.  A DA Form 2823, dated 27July 2010, provided by an eyewitness shows that in July 1998:

* the applicant fell from the top of an M1A1 tank, approximately 8 feet, and injured himself while his platoon was preparing for and conducting high tempo training exercises at the National Training Center in Southern California
* company leadership, medical personnel, and the unit administrator were notified of the incident
* the unit administrator was directed to complete an LOD 
* medical personnel felt that since the applicant could walk there was no immediate need to provide treatment aside from ice packs for his hip, knee, and back

6.  A DA Form 2823, dated 28 July 2010, from an eyewitness shows that on 8 September 2001 the applicant hit a hole while maneuvering a high mobility multi-purpose wheeled vehicle with enough force to break the left rear axle.  The force of the impact left the entire crew shaken.  All were checked by a combat lifesaver and determined to be all right.  However, the next day the applicant complained of severe neck and shoulder pain with numbness in his left-hand fingers.  The applicant was seen by medical personnel 2 days later and his condition was indicated as likely just a strained muscle; however, his pain persisted for several weeks.

7.  Medical notes from St. Luke's Family Health, dated 14 September 2001, show the applicant was evaluated for shoulder pain that was incurred 3 weeks prior and it was noted that he had x-rays at that time and was told he probably had some bursitis in the shoulder.  He had chest symptoms and an electro- cardiogram was performed with normal results.  It was felt that his arm symptoms were more likely neck related.  A subsequent C-spine was performed with negative results.

8.  Medical notes from St. Luke's Family Health, dated 5 October 2001, show the applicant was seen for a follow-up to his neck pain and arm discomfort.  The notes show he had no recent neck trauma reported.  A C-spine was performed and showed some neuroforaminal narrowing.

9.  An extract of an operative report shows the applicant underwent C-spine surgery on 25 October 2001.

10.  On 15 February 2005, the applicant was honorably discharged from the ARNG and transferred to the Retired Reserve.

11.  Army Regulation 600-8-4 (Line of Duty Policy, Procedures, and Investigations) prescribes policies, procedures, and mandated tasks governing line of duty determinations of Soldiers who die or sustain certain injuries, diseases, or illnesses.

     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 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 not in the line of duty and/or because of the Soldier’s intentional misconduct or willful negligence, Section 1074, Title 10, U.S. Code (10 USC 1074).  

     b.  Investigations can be conducted informally by the chain of command where no misconduct or negligence is indicated, or formally where an investigating officer is appointed to conduct an investigation into suspected misconduct or negligence. 

     c.  Paragraph 2-5 (formal LOD investigations) states that a formal LOD investigation is a detailed investigation that normally begins with a DA Form 2173 (Statement of Medical Examination and Duty Status) completed by the MTF 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.  

   d.  The LOD determination is presumed to be "LOD YES" without an investigation in the case of disease, except when the injury, disease, death, or medical condition occurs under strange or doubtful circumstances or is apparently due to misconduct or willful negligence.

     e.  Documentation for an informal LOD investigation typically consists of a DA Form 2173 completed by the MTF and the unit commander and approved by the appointing authority, State Adjutant General, or higher authority. 

12.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a VA rating does not establish error or injustice on the part of the Army.
DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for LOD's for injuries incurred in 1979, 1996, and 2001 and service-connected disability was carefully considered.

2.  He contends his injuries occurred in 1979, 1996, and 2001; however, records show his injuries occurred in 1984, 1998, and 2001.  He had ample time to inquire about LOD's prior to his transfer to the Retired Reserve in 2005.

3.  At any rate, the governing Army regulation does not require a LOD in cases of injuries that are considered so slight that they are clearly of no lasting significance.  The applicant fails to provide medical documentation on the date of his injury showing the severity of his injury.

4.  The records he provides confirm he had injuries.  However, there is no indication he sought treatment or reported his injuries through MTF channels or provided the medical documentation following treatment to his command or MTF channels.  Further, there is no indication he was ever issued a physical profile or that his injuries precluded the performance of his normal military duties.

5.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial credible evidence to rebut the presumption.

6.  The VA is responsible for determining if an eligible individual's medical conditions are service connected and for providing any associated benefits.  

7.  In view of the foregoing, there is no 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)                                         AR20130011137



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ABCMR Record of Proceedings (cont)                                         AR20130011137



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