IN THE CASE OF: BOARD DATE: 30 November 2021 DOCKET NUMBER: AR20210010831 APPLICANT REQUESTS: in effect, correction of his record to show he was injured while in a military status and extended on active duty due to a Line of Duty (LOD) disability/injury with entitlement to compensation. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Orders Number 023-0021, dated 23 January 2002 * DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 13 April 2002 * Medical records * National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), dated 28 January 2004 FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code (USC), section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: a. He was still on active duty status at the time of his Achilles injury. He was unable to seek employment and support himself during his medical treatment and recovery time. He suffered financial hardship and mental anguish during that time. This miscalculation affects his total points toward his upcoming retirement of combined Active Duty, Army National Guard (ARNG) and U.S. Army Reserves on 4 March 2021. b. He is seeking retroactive compensation for the injury that occurred while on terminal leave from active duty status. In March 2002 while on terminal leave from active duty, he ruptured his left Achilles tendon which required surgery. His Expiration Term of Service (ETS) date was not until 14 April 2002. He contacted his unit at Fort Riley, KS to get guidance. He was under the impression he still had medical coverage and his platoon sergeant said there was nothing they could do for him since he had out processed and was no longer in the system. He also called the out processing center and was told to contact his supervisor. He went to the Veterans Affairs (VA) in New Orleans, LA for help. The VA performed surgery and repaired his Achilles tendon. They also awarded him a service connected disability. His foot was casted multiple times and he had to utilize crutches for months. He was unable to seek employment and suffered financial hardship and mental anguish during his recovery. He was under the impression his terminal leave should have been changed to convalescence leave and remained in an active status until his recovery was completed. His ETS would have been extended along with financial compensation as well. His Army DD Form 214 does not reflect that additional time. That time is on his NGB Form 22. 3. A review of the applicant's official records shows the following: a. On 14 April 1998, the applicant enlisted in the Regular Army. b. On 17 January 2002, DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the United States) was completed showing the applicant enlisted in the ARNG for a period of 1 year, 10 months, and 5 days. c. On 13 April 2002, the applicant was honorably released from active duty by reason of completion of required active service and transferred to his ARNG unit. He completed 4 years of net active service, with 6 months and 19 days of prior active service and 1 year, 7 months, and 26 days of prior inactive service. d. On 14 April 2002, the applicant enlisted in the ARNG. e. On 28 January 2004, the applicant was honorably discharged from the ARNG. He completed 1 year, 9 months, and 15 days of net service, with 2 years, 2 months, and 15 days of prior Reserve component service, and 4 years of prior active federal service. f. His record is absent evidence showing he requested an extension of his ETS date during the contested period, nor evidence entry into the disability evaluation system was initiated. 4. The applicant provides: a. Orders Number 023-0021, issued by Headquarters, 2nd Infantry Division and Fort Riley, showing he was transferred to the transition point for transition processing to be released from active duty on 13 April 2002. b. Medical records showing on or about 20 March 2002, the applicant had a repair of his left Achilles tendon. After surgery he was on a non-weight bearing with crutches restriction and would not return to full weight bearing until 1 July 2002. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was partially warranted. Board members noted that he was injured while he was still on active duty status at the time of his Achilles injury. He was unable to seek employment and support himself during his medical treatment and recovery time. His injury occurred while on terminal leave from active duty status. The VA performed surgery and repaired his Achilles tendon. They also awarded him a service connected disability. His foot was casted multiple times and he had to utilize crutches for months. He was unable to seek employment and suffered financial hardship and mental anguish during his recovery. He was under the impression his terminal leave should have been changed to convalescence leave and remained in an active status until his recovery was completed. His ETS would have been extended along with financial compensation as well. It is reasonable to presume that had his unit acted correctly, they would have considered extending him in the military until he full recovered. Board members further noted that there was a possibility his injury could have been disabling, and such voted to refer his case to the Army disability evaluation system. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION ? BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by referring his records to the Office of The Surgeon General for review to determine if the injury he received warranted entry into the disability evaluation system a. If a review by the Office of The Surgeon General determines the evidence supports disability evaluation, the individual concerned will be afforded due process through the Disability Evaluation System for consideration of any additional diagnoses (or changed diagnoses) identified as having not met retention standards prior to his discharge. b. In the event that a formal PEB becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of his case by a formal PEB. All required reviews and approvals will be made subsequent to completion of the formal PEB. c. Should a determination be made that the applicant should be separated for disability, these proceedings serve as the authority to issue him the appropriate separation retroactive to his original separation date, with entitlement to all back pay and allowances, less any entitlements already received. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to any relief without benefit of the review described above. 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. REFERENCES: 1. Title 10, USC, 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 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. 2. Army Regulation (AR) 600-8-4 (LOD Policy, Procedures, and Investigations), prescribes policies, procedures, and mandated tasks governing LOD determinations of Soldiers who die or sustain certain injuries, diseases, or illnesses. a. Paragraph 1-12 (Unit commanders) states the unit commander will ensure DA Form 2173 (Statement of Medical Examination and Duty Status) is completed promptly and forwarded through channels to the appointing authority. b. 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 (AD) 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 LOD and/or because of the Soldier's intentional misconduct or willful negligence, Title 10, USC, section 1074. c. Paragraph 2-3 (Requirement for LOD investigations) states LOD investigations are conducted essentially to arrive at a determination of whether misconduct or negligence was involved in the disease, injury, or death and, if so, to what degree. Depending on the circumstances of the case, an LOD investigation may or may not be required to make this determination. (1) The LOD determination is presumed to be "LOD YES" without an investigation: a. In the case of disease, except as described in paragraphs c (1) and (8) below. b. In the case of injuries clearly incurred as a result of enemy action or attack by terrorists. c. In the case of death due to natural causes or while a passenger in a common commercial carrier or military aircraft. (2) In all other cases of death or injury, except injuries so slight as to be clearly of no lasting significance (for example, superficial lacerations or abrasions or mild heat injuries), an LOD investigation must be conducted. (3) 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. A formal LOD investigation must be conducted in the following circumstances: * Injury, disease, death, or medical condition that occurs under strange or doubtful circumstances or is apparently due to misconduct or willful negligence * Injury or death involving the abuse of alcohol or other drugs * Self-inflicted injuries or possible suicide * Injury or death incurred while AWOL * When requested for directed for other cases d. Paragraph 2-6 (Standards applicable to LOD determinations) states an injury, disease, or death is presumed to be in LOD unless 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, considering- All direct evidence, that is, evidence based on actual knowledge or observation of witnesses; and/or all indirect evidence, that is, facts or statements from which reasonable inferences, deductions, and conclusions may be drawn to establish an unobserved fact, knowledge, or state of mind. 3. AR 635-200, chapter 1-24 provides for extending Soldiers when medical/dental care is required or the Soldier is sick in hospital when their period of service expires. A Soldier may only be considered for retention past the set release date when one or both of the following apply: (1) Continued health care is required. (must be in-hospital status but not necessarily occupying a bed), and/or (2) Physical disability processing is required, or has been initiated. Soldiers determined medically fit for retention or separation will not be: retained past the set release date. 4. AR 140-185 (Training and Retirement Point Credits and Unit Level Strength Accounting Records) Chapter 2, Paragraph 2-14 (Criteria for Awarding Retirement Points) provides that personnel on active duty, Active Duty Training (ADT), Inactive Duty Training (IADT), involuntary ADT, or Annual Training (AT) are awarded one point for each calendar day they serve in one of these categories and may not be awarded additional points for other activities while in such status. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210010831 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1