IN THE CASE OF:	   

		BOARD DATE:	  19 August 2014

		DOCKET NUMBER:  AR20130020886 


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 reversal of a "Not in the Line of Duty-Not Due to Own Misconduct (NLD-NDOM)" determination.

2.  The applicant states, in effect:

   a.  The Line of Duty (LD) Investigating Officer (IO) concluded her degenerative disk disease was in the LD (ILD).  The appointing and reviewing authority agreed; however, the final approval authority found her degenerative disk disease was NLD-NDOM.

   b.  She was deployed twice durring which she conducted nearly daily convoys in full gear with equipment.  The findings are false because on her pre-separation medical assessment from active duty, she reported changes in her physical condition as well as back pain, dated 1 March 2007, and the pain has progressively worsened.  
   
   c.  During her time on active duty she experienced back pain, knee pain, foot and ankle pain, but she did not receive medical care because she could relieve the pain with rest and over-the-counter medications.  Her pain has worsened over time and her physician informed her that the management of her pain will consist of medicine, pain management, physical therapy, and possible surgery.  
   
   d.  Research shows that service in the combat arms branches of the military was found to increase the risk of lumbar degenerative disk disease, which may be explained by the increased physical stress experienced by loading the spine with 70 pounds or more when carrying full battle gear.  Also, military service  members generally maintain higher levels of physical activity and occupational demands than civilian counterparts and numerous studies have documented an association between heavy physical activity and lumbar degenerative disk disease. 

3.  The applicant provides:

* a self-authored statement
* 2 memoranda
* Works Cited
* 2 pages of a DD Form 2807-1 (Report of Medical History)
* DD Form 2697 (Report of Medical Assessment)

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 23 April 2002.  Evidence shows she served in Iraq from 6 May 2003 to 1 July 2004 and from 5 March 2005 to        19 February 2006.  Her military occupational specialty was 74D (Chemical Operations Specialist).

2.  On 3 June 2007, the applicant was honorably discharged due to parenthood.

3.  On 6 November 2007, the applicant enlisted in the Missouri Army National Guard (MOARNG).

4.  The applicant's record contains:

   a.  DD Form 2807-1, dated 23 January 2008.  The applicant acknowledged in item 12c that she did not have recurrent back pain or any back problems.

   b.  DA Form 2173 (Statement of Medical Examination and Duty Status) which states the applicant was examined on 2 February 2010.  The applicant claimed her back injury is a direct result of her deployments and wear and tear due to her deployments and training.  She claimed no specific dates of injury, but wanted to "tough it out" so as not to be seen as weak by her peers.  The injury was considered to have been incurred ILD.
   
   c.  DD Form 261 (Report of Investigation LD and Misconduct Status) which shows the IO found her injury was ILD which was approved by the appointing authority on 3 January 2013; however, the final approval authority found her injury was NLD-NDOM.
   
5.  U.S. Army Human Resources Command (HRC), Military Personnel Law Attorney, Lieutenant Colonel WDW, in a memorandum dated 13 September 2013, stated:

   a.  An x-ray of the applicant's back on 2 February 2010 revealed an exaggerated lumbar lordotic curvature.  The Line of Duty Investigation (LODI) stated the applicant was diagnosed with lumbosacral disk degeneration.  However, the Assistant Command Surgeon General for HRC reviewed the applicant's medical records and did not find any documentation showing she was diagnosed with degenerative disk disease and added that an exaggerated lumbar lordotic curvature is not in itself diagnostic of degenerative disk disease.  The applicant did not complain of back pain in any of her health assessments before a November 2009 reference to back pain when she sought medical attention from the Department of Veterans Affairs.

   b.  The applicant believes her back pain is a result of her duties in Iraq where she wore heavy body armor and often performed gunner duties on patrol in a High Mobility Multi-purpose Working Vehicle (HMMWV).  She stated that while working as a gunner she was often thrown around the HMMWV as it negotiated rough roads and sharp curves.  She said the weight of the body armor made her back hurt.
   
   c.  An LODI was conducted and the IO determined the applicant's injury was ILD.  The appointing authority and reviewing authority agreed.  However, the final approval authority disagreed and reversed the determination to NLD-NDOM.  The final approval authority apparently relied on the opinion of the National Guard Bureau Surgeon who stated the applicant's back condition cannot be tied to her military service as there are no complaints of back pain from that time and no record of her seeking medical treatment for her back for four years after leaving active duty.

   d.  He concludes by stating it is his legal opinion that sufficient evidence exists to uphold the final approval authority's determination that her injury was NLD-NDOM.

6.  An HRC, Director, Casualty and Mortuary Affairs Operations Center letter, dated 28 October 2013, addressed to the applicant stated after a thorough administrative review of the applicant's LDI, HRC had determined the finding of NLD-NDOM would stand.  

7.  The applicant provides a DD Form 2807-1, dated 1 March 2007, which shows she indicated she had recurrent back pain or any back problems in item 12c.  She further provides a DD Form 2697, dated 1 March 2007, in which she states her overall health was worse compared to her last health assessment due to the physical stress placed on her body due to her military duties.

8.  Army Regulation 600-8-4 (LD Policy, Procedures, and Investigations) prescribes policies and procedures for investigating the circumstances of disease, injury, or death of a Soldier.  It provides standards and considerations used in determining LD status.  This regulation provides, in pertinent part, that the Soldier may appeal, in writing, within 30 days after receipt of the notice of the LD determination required by paragraph 3-12b.  If a Soldier is assigned within the geographic area of responsibility of the original final approving authority or is a Soldier of the ARNG, the appeal will be sent through channels to the final approving authority.  The final approving authority may change his or her previous determination of "NLD" to "ILD" if there is substantial new evidence to warrant it.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.  However, the evidence of record does not support her request.

2.  The applicant has not provided sufficient evidence to support her contention that her degenerative disc disease injury was incurred or permanently aggravated as a result of military service.  She has also failed to show that the findings of the LDI were incorrect.

3.  The applicant provided documentation dated March 2007 which she believes corroborates her claim; however, on 23 January 2008, as part of her processing for enlistment into the MOARNG, she acknowledged on her DD Form 2807-1 that she did not have recurrent back pain or any back problems. 

4.  The LD determination appears to be appropriate considering all of the facts in this case.  Therefore, there is an insufficient 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)                                         AR20130020886





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ABCMR Record of Proceedings (cont)                                         AR20130020886



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