IN THE CASE OF:  	  

		BOARD DATE:  2 June 2015	  

		DOCKET NUMBER:  AR20140016945 


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 correction of his records to show a Line of Duty (LOD) determination of "In Line of Duty, Not Due To Own Misconduct."

2.  The applicant states, in effect:

   a.  He was in a motorcycle accident in 2009, which, upon further evaluation, should not have been deemed "not in the line of duty, due to own misconduct."
   
   b.  Because of the incident, he developed post-traumatic stress disorder (PTSD) which should have been taken into consideration when the LOD determination was made.

   c.  A witness from the accident scene submitted a voluntary statement to the Nevada Highway Patrol stating the other driver forced the applicant off the road and when the other driver and the applicant stopped, a verbal argument ensued, so she called 911.  As a result of the traumatic experience, he developed PTSD. 
   
   d.  The investigator who conducted the LOD determination stated that he did not meet all the criteria for PTSD and that the applicant should have "walked away from the situation."  However, the applicant states that the Department of Veterans Affairs (VA) manual on PTSD symptoms from the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) states that an individual who has received a diagnosis for PTSD does not have to posses all the conditions identified to receive a diagnosis and that the investigator's findings were prejudicial towards the applicant.
   
   e.  Furthermore, the governing Army regulation provides that, "simple or ordinary negligence or carelessness, standing alone, does not constitute misconduct."  At the time, he acted in self-defense to protect himself from physical harm or death.
   
   f.  On 3 September 2014, he contacted the U.S. Army Human Resources Command (HRC) to appeal his determination; however, HRC denied his claim on 3 July 2014.

3.  The applicant provides:

* Self-authored letter dated 3 September 2014
* HRC letter dated 3 July 2014
* Letters from VA
* Nevada Highway Patrol Voluntary Statement dated 3 April2009
* Appendix E: DSM-IV-TR Criteria for PTSD

CONSIDERATION OF EVIDENCE:

1.  In 2003, while in civilian status, the applicant was in a motorcycle accident.  This accident led to a prolonged coma (weeks).  No additional information on this incident is available for review.

2.  On 17 April 2006, the applicant enlisted in the New Mexico Army National Guard (NMARNG).

3.  A National Guard Bureau ( NGB) Form 22 (Report of Separation and Record of Service shows the applicant was ordered to active duty for training (ADT) from 1 June 2009 through 30 September 2009.

4.  On or about 3 July 2009, the applicant was involved in a motorcycle accident, in which the Nevada Highway Patrol were called and arrived on the scene (no police report is available for review).

5.  Based on the applicant's documents, it appears that a mini-van bumped the applicant's motorcycle while on the highway.  Both vehicles stopped and the parties started arguing.  A witness stopped and called 911.  When the Nevada Highway Patrol arrived, no one was cited since there was insufficient evidence as to the details of the event. 

6.  On 12 March 2012, the applicant had a Formal Physical Evaluation Board (PEB) for major anxiety and depressive disorder.  He was found medically unfit for retention and was honorably separated on 8 May 2012. 

7.  The HRC memorandum, dated 3 July 2014, subject:  LOD Appeal [for applicant], shows the Director, Casualty and Mortuary Affairs Operations Center, denied the applicant's appeal and informed him, "Please be advised that after a thorough administrative review of your LOD Investigation and appeal, the finding of 'Not In the Line of Duty – Not Due to Own Misconduct' will stand."  HRC informed the applicant, “There appears to be professional disagreement whether you have or do not have PTSD related to this accident.  In your rebuttal dated 
25 May 2012, you provided a neuropsychological evaluation, dated 
13 October 2013 from the Veterans Administration in Albuquerque, NM.  The provider reviewed your medical and behavioral health records up to that time and concluded you reported that you had been diagnosed with PTSD, although your medical records indicate you did not meet full criteria due to not having a clear criterion and the full spectrum of symptoms.  In addition, the neuropsychological testing performed during the visit was not valid because of the poor effort on your part, which made it essentially impossible for the provider to adequately access your level of functioning in those arenas.  If however, a diagnosis of PTSD is entertained, it appears clear that through your video of the incident [not available], you aggravated, and eventually escalated the situation with the van driver.  Had you not aggressively pursued the van driver, with reasonable degree of certainty, the psychological trauma that you describe as PTSD would not have occurred.”

8.  Army Regulation 600-8-4 (LD Policy, Procedures, and Investigations), in effect at the time, prescribes the policies and procedures for investigating the circumstances of the disease, injury, or death of a Soldier and provides standards and considerations used in determining LOD determination.  It also provides the reasons for conducting LOD investigations, which include extension of enlistment, longevity and retirement multiplier, forfeiture of pay, disability retirement and severance pay, medical and dental care for Soldiers on duty other than active duty for a period of more than 30 days, and benefits administered by the VA.

   a.  Chapter 2 (LOD Determinations), paragraph 2-6 (Standards applicable to LOD determinations), shows that decisions on LOD determinations will be made in accordance with the standards set forth in this regulation.  Subparagraph b shows that an injury, disease, or death is presumed to be in LOD unless refuted by substantial evidence contained in the investigation. 

   b.  Chapter 3 (The LOD Investigation Process), paragraph 3-11 (Actions by final approving authority), provides that the final approving authority will take the following actions:

* review the investigation for completeness and accuracy
* approve or disapprove the determination of the lower headquarters
"By Authority of the Secretary of the Army"

   c.  Chapter 4 (Special Considerations and Other Matters Affecting LOD Investigations) shows:

        (1)  paragraph 4-8 (Medical treatment), addresses venereal disease, pregnancies and abortions, hernias, surgical operations and treatments, conditions that existed prior to service, and presumptions concerning injuries and diseases.  Subparagraph e (Injury or disease prior to service), shows:

             (a)  The term "EPTS" [existed prior to service] is added to a medical diagnosis.  It shows that there is substantial evidence that the disease or injury, or underlying condition existed before military service or it happened between periods of active service.  Included in this category are chronic diseases with an incubation period that clearly precludes a determination that it started during short tours of authorized training or duty. 

    	      (b)  The doctor, during examination and treatment of the Soldier, usually determines an EPTS condition.  The doctor annotates the Soldier's medical records as to whether the condition existed prior to service.  If a LOD determination is required, information from the medical records will be used to support a determination that an EPTS condition was or was not aggravated by military service.  If an EPTS condition was aggravated by military service, the determination will be "In LD."  If an EPTS condition is not aggravated by military service, the determination will be "Not in LD - Not Due to Own Misconduct." 

    	      (c)  Specific findings of natural progress of the pre-existing injury or disease based upon well-established medical principles alone are enough to overcome the presumption of Service aggravation. 

        (2)  Paragraph 4-17 (Appeals), in pertinent part, that 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 "not in line of duty" to "in line of duty" if there is substantial new evidence to warrant it.  If the final approving authority determines that there is no basis for a change in the determination, it will be so stated by endorsement and the appeal will be sent to HRC (AHRC-PDC), Fort Knox, KY 40122, for final review and determination.

   d.  The Glossary, section II (Terms), provides definitions for LOD terminology and shows the following:

    	(1)  Existed prior to service:  Any injury, disease, or illness, to include the underlying causative condition, which was sustained or contracted prior to the present period of AD or authorized training, or had its inception between prior and present periods of AD or training is considered to have existed prior to service.  A medical condition may in fact be present or developing for some time prior to the point when it is either diagnosed or manifests symptoms.  Consequently, the time at which a medical condition "exists" or is "incurred" is not dependent on the date of diagnosis or when the condition becomes symptomatic.  (Examples of some conditions which may be pre-existing are slow-growing cancers, heart disease, diabetes, or mental conditions, which can all be present well before they manifest themselves by becoming symptomatic.)

    	(2)  Presumption:  An inference of the truth of a proposition or fact, reached through a process of reasoning and based on the existence of other facts.  Matters that are presumed need no proof to support them, but may be rebutted by evidence to the contrary.

    	(3)  Service aggravation:  Refers to a medical condition that existed prior to service and which worsened or was aggravated as a result of military service more than it would have been worsened or aggravated in the absence of military service. 
   
9.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show an LOD finding of In Line of Duty – Not Due to Own Misconduct because his medical records show that the motorcycle accident in 2009 caused him to have PTSD.

2.  In 2003, the applicant was involved in a motorcycle accident while in civilian status.

3.  In 2009, the applicant enlisted in the NMARNG.  He was ordered to active duty from 10 June 2009 through 20 September 2009.  In July 2009, he was involved in another motorcycle accident.  Although it appears that no injuries were incurred, a LOD investigation was conducted.  A LOD determination was made and resulted in a determination of not in the line of duty, due to own misconduct.
4.  The available evidence does not show the applicant received any medical treatment after for the 2009 motorcycle accident.  However, the applicant submits documentation from an attending psychiatrist at the VA showing the applicant suffers from PTSD related to the accident in 3 July 2009.

5.  The applicant did not provide a copy of the LOD Investigation in question and the LOD Investigation is not filed in his OMPF.

6.  In the absence of evidence to the contrary, it is presumed that the applicant's LOD Investigation was accomplished in compliance with applicable regulations then in effect and without any procedural errors which would have jeopardized his rights.

7.  In addition, HRC opined that it appears clear that through the video of the incident the applicant aggravated and eventually escalated the situation with the van driver.  Had he not aggressively pursued the van driver, with a reasonable degree of certainty the psychological trauma that he described as PTSD would not have occurred.   

8.  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 creditable evidence to rebut the presumption.  In this instance, the "presumption of regularity" is based upon Army Regulation 600-8-4 which provides that the correct conclusion based on the facts must be shown.  The evidence of record supports the conclusion that the LD Investigation findings and determination of "Not in LD – Not Due to Own Misconduct" are correct.

9.  Therefore, there is an insufficient evidentiary basis for granting the 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)                                         AR20130017887



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ABCMR Record of Proceedings (cont)                                         AR20140016945


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