PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:           25 MARCH 2003                   
	DOCKET NUMBER:   AR2002072152

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. John T. Meixell		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that the 14 August 1995 line of duty be corrected and that he be reimbursed $1,500.00 in medical expenses and $970.47 in lost sick leave from his civilian job, costs which he suffered because of the erroneous line of duty (LOD) determination. 

3.  The applicant states the LOD was based on the finding that he had a pre-existing medical condition; however, that pre-existing condition originated from an injury that he sustained while on active duty in 1978.  His medical records were not available at the time of the LOD investigation to substantiate this, but are now available to him.  He complained to the Inspector General in 1996, but the IG determined that his claim was unsubstantiated. 

4.  He states that he was injured at Homestead Air Force Base in 1978 while on active duty.  He suffered a lower back injury while attempting to pull-start a generator.  He made several follow-up visits to the hospital for treatment in 1978 and 1979, and also sought treatment from the hospital at Wright-Patterson Air Force Base during his activation for Operation Desert Storm/Desert Shield. 

5.  The applicant submits medical documents which show that he was treated for low back pain on numerous occasions at Homestead Air Force Base in Florida, beginning in September 1978 and continuing through July 1979.  Those records do show that his initial episode of back pain began in 1976 with a back injury.   He was also treated for back pain in September 1979 at Fort Bragg, North Carolina; and in February 1991 at Wright Patterson Air Force Base in Ohio.

6.  He states that on or about 5 November 1994 he reported for weekend drill with his unit, and re-injured his back while moving office furniture.  He was taken by an ambulance to a civilian hospital, where it was determined that he should be treated at a VA hospital.  He informed [medical personnel] that he did have a prior back injury; however, no record was made that his prior injury occurred while on active duty.  The physician at the VA hospital told him that he would not treat him – that he needed to seek treatment from a civilian doctor at his own expense.  Over the course of treatment for his back injury he incurred expenses [as indicated above]. At his request, his Reserve unit initiated a LOD investigation.  He requested his prior medical records, so that he could substantiate his pre-existing back injury; however, they could not be located.  Consequently, the final determination of the LOD investigation was “IN LINE OF DUTY – EPTS (Existed Prior to Service) –Service Aggravated.”  Therefore, his claim was refused.  He was called to active duty as an individual mobilization augmentee in October 2001 and is assigned at Fort Huachuca, Arizona.  His medical records, which have been located, support his claim for reimbursement.

7.  The applicant submits copies of various receipts, statements, and bills, which purport to show the medical expenses he incurred because of his back injury       5 November 1994, as follows -
-	a 5 February 1996 statement from Fairview Ridges Hospital showing a bill in the amount of $566.40, with all but $40.00 paid by insurance
-	a 23 December 1994 account receipt from the Institute for Athletic Medicine in  the amount of $90.00
-	a 22 November 1994 account receipt from the Institute for Athletic Medicine for $60.00
-	a 17 November 1994 statement from Suburban Radiologic Consultants, Ltd., showing a balance due of $33.00 for an x-ray examination of the lower spine
-	a copy of a 22 November 1994 check in the amount of $60.00 made out to I.A.M. 
-	a 28 January 1995 statement from Quello Clinic, Ltd., showing a balance due of $150.00, $117.00 of which were for new charges, for medical services performed on 29 November 1994, 20 December 1994, and 6 December 1994
-	a 19 June 1995 statement from Health Span Transportation Services, for transportation from Fort Snelling to Fairview Ridges on 5 November 1994, for $763.00, which indicates that $610.40 was paid by an HMO, and a balance due of $152.60
-	a 23 June 1995 statement from the Emergency Physicians Professional Association showing a balance of $170.00
-	a 15 February 1995 statement from Fairview Ridges Hospital showing a balance of $852.00
-	a statement (date unreadable) from Suburban Radiologic Consultants showing a balance due of $316.00 ($33.00 for x-ray of lower spine on 5 November 1994; $158.00 and $125.00 for CT scans on                   17 November 1994)
-	copies of five receipts ($10.00 each) from Family Physicians, P.A. 

8.  Additionally, the applicant furnishes copies of leave and earning pay period documents from his civilian employer which purports to show that he had to take 94 hours of leave because of the injury he sustained on 5 November 1994 - 

	-   pay periods 21 and 22 apparently cover the periods 1 October 1994                     through 14 October 1994, and 15 October 1994 through 28 October                     1994, respectively, both periods prior to his injury, and                                           show 8 hours leave taken each pay period
           -   pay period 23, 29 October 1994 through 11 November 1994, shows                     that he apparently worked for most of the first week of that pay period                   (38 hours), and that he had 42 hours of leave thereafter    	
	-   pay period 24 shows 36 hours of leave taken     

9.  On 5 November 1994, the applicant’s commander completed a DA Form 2173 (Statement of Medical Examination and Duty Status), showing that the applicant experienced severe back pain after bending down to pick up some items, and was transported to Fairview Ridges Hospital Emergency Room in Burnsville, Minnesota, because of his injury, accompanied by a major from the 88th Army Reserve Command.  That form shows the applicant was on inactive duty for training at the time of his injury.  The applicant’s commander stated that his injury was in line of duty.

10.  On 12 January 1995 the commander of the 88th Army Reserve Command appointed an investigating officer to perform a formal line of duty investigation.

11.  A 28 February 1995 LOD investigation shows that the applicant was attending a Reserve unit training assembly at Fort Snelling, Minnesota, on          5 November 1994, when he experienced severe back pain while moving some files.  The investigating officer stated that medical documentation indicated that his back pain was due to musculoskeletal strain to his lower back, caused by extreme muscle fatigue that could happen to anyone.  The investigating officer indicated that the applicant had a previous injury in 1987, that his current injury was not an aggravation of a previous injury, and that his injury was “In Line of Duty.” 

12.  A 5 November 1994 medical note from an emergency room physician at Fairview Ridges Hospital shows that the applicant was seen in the emergency room on that date because of back spasms.  The physician stated that the applicant needed  bed rest and referral to his physician.  A form from the emergency department indicates that the applicant was informed to see his private physician on Tuesday, that he should have bed rest at home for 48 hours, and should be off work Monday and Tuesday.  Another medical record shows that the applicant stated that he had a similar pain in 1978, that he was crying because of his [current] pain, and that he was unable to move.  That record indicated that he had significant back spasms while in the emergency room, and that he was prescribed medications, to include Valium.  Another medical record shows that the applicant was hyperventilating, and that he had pain for two weeks, on and off, but today (5 November 1994) was much worse.  That record shows that he was given pain medication, that he was unable to void, and that an IV sedation was given.  He was discharged from the hospital in the care of his wife at 2300 hours on 5 November 1994.  Records show that the applicant received various tests while at Fairview Ridges, to include x-ray and urinalysis.

13.  On 6 May 1995 an assistant Staff Judge Advocate stated that the investigating officer’s finding of “in the line of duty” was legally sufficient.  

14.  In a 13 July 1995 memorandum to the Staff Judge Advocate, the Adjutant General of the Army Combined Arms Center and Fort Leavenworth requested a review of the LOD investigation for legal sufficiency and a determination whether the decision that the injury was not an aggravation of a previous injury could be justified by the medical documentation in the report (LOD investigation).  That officer indicated that documentation showed that the applicant had pain on and off for two weeks prior to his training on 5 November 1994. 

15.  In a 31 July 1995 response, a Judge Advocate General’s Corps officer stated that the investigating officer’s findings were supported by substantial evidence, and that the governing regulation provides for treatment as service aggravation new conditions even though the service member had a pre-existing injury or disease.  He stated that the investigating officer’s finding was legally correct. 

16.  On 14 August 1995 the approving authority approved the findings of the investigating officer, but indicated that the applicant’s injury was “in line of duty – EPTS – service aggravated.”

17.  On 11 September 1996 the Army Reserve Personnel Center Inspector General informed the applicant that his allegation that he should be reimbursed for medical expenses was not substantiated based on the line of duty findings – that although his back injury was aggravated from moving furniture, his condition existed prior to him reporting for active duty training.

18.  The 1986 edition of Army Regulation 600-8-1 included a Part Five, which set forth the Army's policies and procedures for investigating the circumstances of the disease, injury, or death of a service member.  It provided standards and considerations used in determining line of duty status.  However, when that regulation was revised and reissued on 20 October 1994, the line of duty chapter was omitted.  Part Five has been superseded but not replaced.  Nonetheless, the provisions of Part Five are the last Army guidance on the subject of line of duty determinations, and to the extent that it does not conflict with current statutes, directives, regulations, and policies, the superseded Part Five is regarded as the Army's policies and procedures for line of duty determinations.  Consequently, the citations below concerning line of duty are considered authoritative. 

19.  That regulation states in pertinent part that a finding of “in line of duty” may be entered by the commander only when it has been established that a formal investigation is not required.  A formal line of duty is required if the injury, disease, or death occurred under unusual or doubtful circumstances; of if the person affected by the investigation requests one; or the complexity of the case warrants one. 

20.  Paragraph 41-8 of that regulation states in pertinent part, that the doctor, during examination and treatment of the member, usually determines an EPTS condition.  If a line of duty finding is required, information from the medical records will be used to support a finding that an EPTS condition was or was not aggravated by military service.  If an EPTS condition was aggravated by military service, the finding will be “in line of duty.”  If an EPTS condition is not aggravated by military service, the finding will be “not in line of duty – not due to own misconduct.”

21.  That paragraph continues by saying that a member of the Army [on active duty for training, initial active duty for training, annual training, inactive duty for training for Army Reserve soldiers] is presumed to have been in sound physical and mental condition on entering active service or authorized training.  To overcome this, it must be shown by substantial evidence that the injury or disease, or condition causing it, was sustained or contracted while neither on active duty nor in authorized training.  Any physical condition having its inception in line of duty during one period of service or authorized training in any of the Armed Forces which recurs or is aggravated during later service or authorized training, regardless of the time between, should be in line of duty.  

22.  Army Regulation 135-381 establishes procedures and policies and implements statutory authorities regarding medical, dental, hospitalization, and disability benefits; incapacitation compensation; and death benefits; as well as reporting requirements on these entitlements for Reserve component soldiers.

23.  Unit commanders will initiate a line of duty investigation on any injury likely to result in a claim against the government for health care, compensation, or disability benefits within 48 hours of the incident.  Line of duty investigations are normally limited to the MTF (Medical Treatment Facility) commander.  The unit commander, however, must assume this responsibility when soldiers are taken to or treated in civilian health care facilities.  

24.  Reserve component soldiers who incur or aggravate an injury, illness, or disease while participating in training, may be treated in a military medical treatment facility or be provided medical care elsewhere at government expense. Unit commanders may authorize medical treatment in a military or government MTF or elsewhere (if an emergency/life threatening condition exists).  This will be at government expense for an injury which was incurred, or aggravated in line of duty. 

25.  Soldiers in an inactive duty for training (IDT) status are authorized emergency civilian (such as that provided by paramedics to save the life, limb, or eyesight of a Reserve soldier) services; and medication, and outpatient treatment (such as physical therapy, x-rays, cast removal, clinical visits) at a MTF.  Non-emergency care furnished by a private hospital, clinic, dentist, physician, nurse, or other authorized health care provider, unless prior written approval is obtained in advance is not authorized at government expense (regardless of line of duty status).  Medical treatment will be provided to Reserve component soldiers in Army treatment facilities whenever possible.  Non-emergency care by civilian health care provides is not authorized unless prior approval is obtained from the supporting Army MTF commander.  Approval must be obtained in writing.  Care obtained without prior approval from the supporting Army MEDDAC (Medical Activity) may require payment by the soldier.   

26.  Army Regulation 135-381 and Title 37, U.S. Code, Section 204, provide for continuation of pay and allowances under certain circumstances to reservists who are disabled in line of duty as a direct result of the performance of their duties.  To receive continuation of pay, referred to as incapacitation pay, reservists must either be unable to perform their normal military duties or be able to show a loss of nonmilitary income.  If the reservist continues to work at his or her civilian job, the amount of money earned is deducted from the incapacitation pay.  Entitlement to incapacitation pay is limited to 6 months unless the Secretary of the Army finds that it is clearly in the interest of fairness and equity to extend the incapacitation pay.  Only in the most meritorious cases will incapacitation pay be extended past the 6-month limitation.

CONCLUSIONS:

1.  The applicant’s contention that the line of duty finding, approved on 14 August 1994, is erroneous, is correct.  It is erroneous only in the respect that there is no regulatory provision for a finding of “in line of duty – EPTS – Service aggravated.” The applicant’s injury was in line of duty as determined by the investigating officer, which finding was found to be legally sufficient by two Judge Advocate General’s Corps officers.  Consequently, the finding as approved on 14 August 1995 should be corrected to indicate “In line of duty.”  

2.  The evidence clearly shows that on 5 November 1994 the applicant was transported, by ambulance, to a civilian hospital because of his back pain, and that he received treatment at that hospital until his discharge later that day.  The evidence also shows that the applicant’s commander, on 5 November 1994, determined that the applicant’s injury was in line of duty, and that he was transported to the Fairview Ridges Hospital emergency room.  What is not clear, however, is the Army’s monetary liability on that date, e.g., authorization to transport the applicant by a civilian ambulance to a civilian hospital, and the Army’s monetary liability thereafter.  Someone in the applicant’s Reserve unit, on his or her authority, may have called for an ambulance, thereby in effect, authorizing medical treatment at government expense; however, there is no probative evidence to show this is true.       

3.  The various statements, bills, and receipts furnished by the applicant, while showing that he had received treatment and medications, do not show in all instances, that the treatment and medications were necessary because of the back injury he sustained on 5 November 1994.  The Board notes that the applicant had a history of back pain, and that he had pain on and off for two weeks prior to that date, indicating that his back pain was a continuing problem, which required continued treatment and medications.  Furthermore, those documents do not indicate his true medical expenses, that is all the expenses that were not paid by his insurance agency.  The Army is not liable for medical expenses covered by an insurance company.  Nevertheless, there is no evidence to show that the applicant obtained authorization for his medical treatment and medications by civilian health care providers, to include any authorization for follow on medical care.  Consequently, his request for reimbursement of his medical expenses cannot be granted.   

4.  The applicant has not shown that he is entitled to incapacitation pay, that is in this case, pay for the leave that he took because of his injury on 5 November 1994.  In fact, two of the leave and earning statements that he provides with his application, show leave taken prior to his injury on 5 November 1994.  Furthermore, there is no way of knowing, 8 years after his injury, whether or not he should have been authorized incapacitation pay because of his injury.   

5.  The applicant himself states that he requested a formal line of duty investigation in order to determine whether he could be reimbursed for his costs. However, his commander, in completing the DA Form 2173, had already determined that the applicant’s injury on 5 November 1994 was “in line of duty.”  Based on that finding, it appears that the applicant could have received compensation for legitimate medical expenses incurred as a result of his injury, and incapacitation pay because of a loss of income from his civilian job, provided appropriate procedures were followed.  Notwithstanding the applicant’s contention, there is no evidence, one way or another, whether this occurred.            
6.  Nonetheless, the applicant apparently did request reimbursement for medical expenses as indicated by the response to him by the Army Reserve Personnel Center Inspector General.  The applicant may yet want to submit a claim to his commander for his expenses, based on the determination made by this Board to correct the 14 August 1995 finding on the line of duty investigation to “in line of duty.”  The time is not yet ripe, however, for this Board to grant the applicant’s request for reimbursement of expenses, based on the available evidence.      

7.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by amending the approved finding on the 14 August 1995 line of duty investigation from “In Line of duty – EPTS – Service Aggravated,” to “In line of duty.” 

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__JNS __  __MHM__  __JTM__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_____John N. Slone_______
		        CHAIRPERSON

INDEX

CASE ID	AR2002072152	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20030325	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	122.00	
2.		
3.		
4.		
5.		
6.