ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 20 June 2019 DOCKET NUMBER: AR20180000035 APPLICANT REQUESTS: in effect, correction of a DD Form 261 (Report of Investigation Line of Duty (LOD) and Misconduct Status), dated 19 March 2003, to show his hamstring, elbow, and back injuries were incurred in the LOD. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: .DD Form 149 (Application for Correction of Military Record) .DD Form 214 (Report of Separation From Active Duty), covering the period 27 August 1977 through 26 September 1979 .DD Form 261, dated 19 March 2003 .DA Form 2173 (Statement of Medical Examination and Duty Status), dated 6 July 2003 .DD Form 214 (Certificate of Release or Discharge from Active Duty), coveringthe period 27 January 2003 through 30 August 2003 .Headquarters, U.S. Army Medical department Center and School and Fort SamHouston Orders 020-887, dated 20 January 2005 .DD Form 214, covering the period 13 April 2004 through 19 August 2005 .77 pages of civilian medical records .Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support ofClaim), dated 15 August 2014 .VA Form 21-0960M-13 (Neck (Cervical Spine) Conditions Disability BenefitsQuestionnaire, dated 17 June 2015 .VA Form 21-0960M-14 (Back (Thoracolumbar Spine) Conditions DisabilityBenefits Questionnaire), dated 26 June 2015 .VA Form 21-0960M-9 (Knee and Lower Leg Conditions Disability BenefitsQuestionnaire), dated 16 July 2015 FACTS: 1.The applicant did not file within the three year time frame provided in Title 10, UnitedStates Code (USC), section 1552 (b); however, the Army Board for Correction ofMilitary Records conducted a substantive review of this case and determined it is in theinterest of justice to excuse the applicant's failure to timely file. 2.The applicant originally enlisted in the U.S. Army Reserve (USAR) Control Group(Reserve Officer Training Corps) on 15 July 1976, and was appointed as a ReserveCommissioned Officer of the Army for an indefinite term on 21 July 1977. 3.A DD Form 214 shows he served on active duty in the USAR from 27 September1977 through 26 September 1979, when he was honorably released from active dutyand transferred to the USAR Control Group (Annual Training). 4.A National Guard Bureau Form 22 (Report of Separation and Record of Service)shows he served honorably in the Army National Guard from 20 July 1980 through 22 August 1981, when he resigned and was transferred to the USAR Ready ReserveControl Group (Reinforcement). His DA Form 2-1 (Personnel Qualification Record –Part II)) shows he remained in the USAR Ready Reserve through 9 June 1998. 5.A DD Form 214, shows he was ordered to active duty in support of OperationEnduring Freedom (OEF) on 27 January 2003, while a member of the USAR, withservice at Fort Sam Houston, TX, 6.A Kelsey-Seybold Clinic, Orthopedic Consultation note, dated 17 March 2003, states a.The applicant presented to the clinic on the date of the document, complaining of a right hamstring injury. He noted that he was performing some sprints and walking that morning when he developed a sharp pain in his right posterior thigh area. He developed swelling and immense pain, thus presented for evaluation and treatment. b.The examination of the right thigh revealed a moderate amount of swelling to theposterior thigh area with no palpable defect noticeable. Right range of motion of the hip was full and no pain with internal or external rotation. He had tenderness over the posterior thigh area up to the gluteal area, but had good strength with extension, 5/5 flexion. The assessment was a right hamstring strain.c.He was advised to rest this for the next 2-3 weeks, taking anti-inflammatories,and icing the area 4 times per day. The applicant noted he was a Reservist in the Army and had an upcoming Army Physical Fitness Test (APFT), for which he would be given an excuse. 7.The applicant provided a partially completed DD Form 261, dated 19 March 2003,which shows: .while the applicant was called or ordered to active duty for more than 30 days, hewas injured on 17 March 2003 at 0630 while participating in physical training (PT)in the parking lot .item 9 (Remarks) states this is an informal LOD; there was no willful misconduct,negligent behavior, or sign of foul play suspected .item 11 (Findings) shows the block “in Line of Duty” is annotated, but item 12(Investigating Officer) is incomplete as it is unsigned .item 13 (Action by Appointing Officer) and item 14 (Action by reviewing Authority)are neither filled out nor signed 8.A Kelsey-Seybold Clinic Office Visit note, dated 9 April 2003, states: a.The applicant presented to the orthopedic section for a follow-up 3 weeks afterhis right hamstring injury. He stated he was overall feeling better, but had not gotten into any running activities yet. b.The examination showed minimal tenderness to palpitation in the right hamstringarea, no palpable defect or swelling, full range of motion, good strength, and neurovascular status intact. The assessment remained right hamstring strain/sprain and he was encouraged to continue stretching exercises and avoiding running just yet. 9.A partially completed DA Form 2173, provided by the applicant, dated 6 July 2003,shows: .the dates of the applicant’s accidents to have been 17 March 2003 and 3 July2003 .he was treated as an outpatient at HMO Blue and the attending physicianannotated the injury was incurred in the LOD and may result in a temporarydisability .the details of the accident state he pulled his hamstring during PT on 17 March2003, which was resolved, and he had a popping sensation in his elbow(presumably on the 3 July 2003 injury date) while doing push-ups, which thephysician observed to be bursitis .item 17 (Typed or Printed Name of Attending Physician or Patient Administrator)is blank, although item 18 (Signature) is signed .items 19 -35 in Section 11 (To be Completed by Unit Commander or UnitAdviser) are all blank, with no determination as to LOD status and no signature ofthe unit commander or adviser 10.A Kelsey-Seybold Clinic orthopedic note, dated 15 August 2003, states theapplicant felt a pop in his elbow on 3 July 2003 while doing stretching exercises and hashad swelling for 3 weeks as well as left shoulder pain. He completed an APFT over theweekend prior to his clinic visit and his elbow started swelling again. 11.A DD Form 214 shows he was honorably released from active duty on 30 August2003, after 7 months and 4 days of net active service this period, due to the completionof required active service. 12.A U.S. Total Army Personnel Command memorandum, dated 15 December 2004,notified the applicant that a Department of the Army Reserve Components SelectionBoard convened on 13 July 2004 to consider officers in his grade for promotion and hewas not among those selected for promotion by the board. 13.A DD Form 214, shows he was ordered to active duty in support of OEF on 13 April2004, while a member of the USAR, with service at Fort Sam Houston, TX. 14.Headquarters, U.S. Army Medical Department Center and School and Fort SamHouston Orders 020 -887, dated 20 January 2005, ordered the applicant to acontinuation of active duty in support of OEF on 26 January 2005, with duty at Fort SamHouston, TX, for a period not to exceed 227 days. 15.A DD Form 214 shows he was honorably released from active duty on 19 August2005, after 1 year, 4 months, and 7 days of net active service this period, due to thecompletion of required active service. 16.A DA Form 67-9 (Officer Evaluation Report), covering the period 1 February 2005through 1 September 2009, shows the applicant passed his APFT in August 2005 andwas his performance during the rating period was rated as outstanding. There is noindication of a reduction in performance or ability due to a physical profile or injury. 17.Headquarters, 75th Division (Training Support) Orders 05-224-00004, dated 12 August 2005, reassigned him in the USAR to the Retired Reserve effective 1September 2005, due to the completion of 20 or more years of qualifying service forretirement pay at age 60. 18.U.S. Army Human Resources Command Orders C03-491800, dated 11 March2014, retired the applicant and placed him on the Army of the United States Retired Listeffective 15 May 2014. 19.The applicant provided numerous VA Forms showing he made the following claims: a.On 15 August 2014, he claimed he felt a strain and pull to his lower back on 11 August 2005, while on active duty and performing PT. He sought medical attention on 26 October 2005 due to severe continuous back pain, intermittent limited mobility, and the inability to walk upright or bend. b.On 17 June 2015, he claimed his diagnoses of cervical spondylolisthesis (spinalcord disorder in which one vertebra slips onto the bone below it), cervical radiculopathy (compression of the nerve near the cervical vertebrae), and cervical spondylosis (age-related condition of wear on the cartilage and bones of the neck) were sustained while performing PT while on active duty on 11 August 2005. c.On 26 June 2015, he claimed he sustained a fall on a concrete surface whilemobilized in 2003 and performing PT, which resulted in a 2-decade history of progressive lumbar spondylosis (degenerative condition of the lower spine) with radiculopathy and facet arthropathy (a joint disease involving inflammation). d.On 16 July 2015, he claimed post-traumatic bilateral knee pain and post-traumatic degenerative arthritis secondary to fall while running on concrete while mobilized on active duty. 20.On 12 March 2019, the Army Review Boards Agency (ARBA) senior medicaladvisor provided an advisory opinion, which states: a.A limited review of the applicant’s VA records through the Joint Legacy Viewershows no listed problems, no radiology reports and only three documents noted from a 28 April 2015 examination for VA Orthopedic Compensation and Pension. He does not currently have a service-connected rating through the VA. Available records indicate he met medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness) and there is no evidence of a medical disability or condition that would support a change to the character and/or reason for his discharge. b.The contended right hamstring strain/sprain occurred during a period of activeduty service. The LOD forms and investigation forms related to this event are incomplete and unsigned. The applicant’s condition resolved and met medical retention standards. There is no evidence of any significant functional impairment. The applicant’s orthopedic conditions were evaluated by the VA in 2015 with no disability found. He was not given a service-connected rating for the right hamstring strain/sprain or any other condition occurring or related to periods of active duty service. c.The presence or absence of an LOD report for an active-duty service-connectedcondition is immaterial to the VA determination his conditions are not service-connected. The ARBA senior medical advisor recommends denial of the applicant’s request. The Army has neither the role nor the authority to compensate for progression or complications of service-connected conditions after separation. A copy of the complete medical advisory was provided to the Board for their review and consideration. 21.The applicant was provided a copy of the advisory opinion on 18 March 2019, andgiven an opportunity to submit comments, but he did not respond. 22.Army Regulation 600-8-4 (Line of Duty Policy, Procedures, and Investigations)prescribes policies and procedures for investigating the circumstances of disease,injury, or death of a Soldier providing standards and considerations used in determiningLOD status. a.A formal LOD investigation is a detailed investigation that normally beginswith DA Form 2173 (Statement of Medical Examination and Duty Status) completed by the medical treatment facility 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 the 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. b.Paragraph 1-7a states the worsening of a pre-existing medical condition overand above the natural progression of the condition as a direct result of military duty is considered an aggravated condition. Commanders must initiate and complete LOD investigations, despite a presumption of Not In the Line of Duty, which can only be determined with a formal LOD investigation. c.Paragraph 2-6 states an injury, disease, or death is presumed to be in LODunless refuted by substantial evidence contained in the investigation. LOD determinations must be supported by substantial evidence and by a greater weight of evidence than supports any different conclusion. The evidence contained in the investigation must establish a degree of certainty so that a reasonable person is convinced of the truth or falseness of a fact. d.Paragraph 4-17a states a Soldier may appeal, in writing, within 30 days afterreceipt of the notice of the LD determination. For appeals not submitted within the 30-day time limit, the reason for delay must be fully explained and a request forexception to the time limit justified. BOARD DISCUSSION: After review of the application and all evidence, including the applicant’s statement, available medical and service records and the ARBA medical advisory opinion, the Board determined there is sufficient evidence to grant partial relief and correct a portion of the applicant’s LOD report. 1.The Board agreed that because the applicant pulled his hamstring and injured hiselbow while on active duty during physical training, these injuries should be determinedin LOD Yes. However, regarding the applicant’s other conditions, the Board agreed thatthere is insufficient evidence to indicate that they were incurred while on active duty andtherefore, the Board denies that portion of the applicant’s request. For example, theavailable medical records indicate that the applicant first presents with back pain andknee pain in 2008, after he was ordered to the retired reserves via orders dated August2005. 2.The Board agrees with the ARBA medical advisory that upon review of the availabledocumentation, there is no evidence of a medical disability or condition that wouldsupport a change to the character and/or reason for the discharge in this case; theapplicant’s injuries were all deemed temporary and the applicant never received a P3profile or was referred for MEB/PEB processing. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :XXX :XXX :XXX GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. 1.The Board recommends granting that portion of the applicant’s request pertaining tocorrecting his LOD report to show that his left elbow and right hamstring were injured inline of duty. Therefore, the Board recommends that all Department of the Army recordsof the individual concerned be corrected by showing that the applicant received a LODYes determination in July 2003 for in-service injury to his left elbow and right hamstring. 2.The Board recommends denial of the remaining portions of the applicant’s request. X 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1.Title 10, USC, section 1552(b), provides that applications for correction of militaryrecords must be filed within three 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 three-year statute oflimitations if the ABCMR determines it would be in the interest of justice to do so. 2.Army Regulation 600-8-4 (Line of Duty Policy, Procedures, and Investigations)prescribes policies and procedures for investigating the circumstances of disease,injury, or death of a Soldier providing standards and considerations used in determiningLOD status. a.A formal LOD investigation is a detailed investigation that normally beginswith DA Form 2173 (Statement of Medical Examination and Duty Status) completed by the medical treatment facility 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 the 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. b.Paragraph 1-7a states the worsening of a pre-existing medical condition overand above the natural progression of the condition as a direct result of military duty is considered an aggravated condition. Commanders must initiate and complete LOD investigations, despite a presumption of Not In the Line of Duty, which can only be determined with a formal LOD investigation. c.Paragraph 2-6 states an injury, disease, or death is presumed to be in LODunless refuted by substantial evidence contained in the investigation. LOD determinations must be supported by substantial evidence and by a greater weight of evidence than supports any different conclusion. The evidence contained in the investigation must establish a degree of certainty so that a reasonable person is convinced of the truth or falseness of a fact. d.Paragraph 4-17a states a Soldier may appeal, in writing, within 30 days afterreceipt of the notice of the LD determination. For appeals not submitted within the 30-day time limit, the reason for delay must be fully explained and a request forexception to the time limit justified. 2. Army Regulation 15-185 (Army Board for Correction of Military Records), paragraph 2-9 states 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. //NOTHING FOLLOWS//