IN THE CASE OF: BOARD DATE: 20 April 2022 DOCKET NUMBER: AR20210016889 APPLICANT REQUESTS: issuance or reissuance of DA Form 2173 (Statement of Medical Examination and Duty Status) for a foot injury incurred while attending annual training in 1992. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Orders Number 112-005 dated 30 March 1992 * Honorable Discharge Certificate issued 13 December 1994 * VA Form 21-4138 (Statement in Support of Claim) by first witness dated 12 August 2013 * AHRC Form 606-E (Chronological Statement of Retirement Points) dated 14 January 2004 * VA Form 21-4218 by second witness dated 5 July 2017 * PHQ-9 Depression Scale Score printed on 23 January 2018 * Department of Veterans Affairs (DVA), Statement of Case dated 18 January 2020 pages 28 and 31 * Statement from fourth witness dated 22 October 2020 * Civilian medical records * Civilian medical statement dated 22 June 2021 * VA Form 21-4138 by Applicant dated 24 June 2021 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, United States Code, 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 within his application and on his VA Form 21-4138 dated 24 June 2021 that his DA Form 2173 and service treatment records are missing from his military personnel record. Therefore, in effect he is requesting issuance or reissuance of his DA Form 2173 so he can continue to receive treatment from the DVA. a. He states he was on duty with his U.S. Army Reserve (USAR) unit working in the motor pool. A hydraulic jack was used to lift a 2 ˝ ton truck so he could change a tire when it collapsed on his left foot. After shouting for help it took approximately 10 to 15 minutes before other Soldiers were able to locate another jack and lift the 2 ˝ ton truck off his foot. He recalls going to a military hospital for medical treatment by ambulance. He was released back to his unit with crutches. b. He recalls his unit completed a DA Form 2173 and he received a copy of it in the mail about 6 months after his injury. He misplaced his personal copy. He completed his enlisted term of service and was honorably discharged. He was not told to go to the VA after his injury in 1992. He recently sought help from the VA who requested his DA Form 2173. He requested copies of his DA Form 2173 and service treatment records from the National Personnel Records Center (NPRC) part of the National Archives. The NPRC could not locate the records. He requested his treatment records from the military hospital who treated his injured foot and was told they did not maintain records from his period of service. He also tried getting records from his unit and from the U.S. Army Human Resources Command. Each organization did not have his records from 1992. He states, "I’m having nightmares. I’m a nervous wreck. Foot bothers me every day and [I] cant [sic] get treatment until I can prove my injury happened on duty." c. He indicates on his DD Form 149 that he has post-traumatic stress syndrome (PTSD) and that it is related to his request for reissuance of his DA Form 2173. He continues to have pain. He sought medical treatment from the VA and the VA could not locate his line of duty statement or his service treatment records showing he injured his left foot. 3. Regarding his request for his service treatment records, Army medical records are the property of the Government. The same controls that apply to other Government documents apply to Army medical records. USAR unit commanders will initiate and dispose of health treatment records of troop program unit members, and the Commanding General, USAR Personnel Center will initiate and dispose of records for members of the Individual Ready Reserve. Upon request, a patient may be provided with a copy of his health records but not the original record. The Office of the Surgeon General of the Army is the proponent for the preparation, processing and handling of service treatment records. The retirement and storing of medical records is outlined within Army Regulation 40- 66 (Medical Services – Medical Record Administration). As the purview of service treatment records falls under the Office of the Surgeon General, the issue of the applicant’s missing service treatment records will not be further discussed within this record of proceedings. 4. The applicant enlisted in the U.S. Army Reserve (USAR) on 12 December 1986. He enlisted for an 8-year period of service in the USAR establishing his expiration of term of service date as 11 December 1994. 5. On 18 February 1987 he was ordered to initial active duty for training under Title 10, U.S. Code, section 551(d) to complete his basic and advanced individual training. The Military Entrance Processing Station, Dallas, Texas issued him Orders Number 245-019 ordering him to active duty training for a period of 17 weeks or until he completed military occupational specialty (MOS) training. He was scheduled to attend construction equipment repairer school at Fort Leonard Wood, Missouri. 6. By Orders Number 154-198 issued at Fort Leonard Wood on 3 June 1987 he was awarded MOS 62B after meeting the training qualifications. 7. On 22 June 1987 personnel at Fort Leonard Wood issued him Orders Number 173-198 releasing him from his training unit and attaching him to the Fort Leonard Wood Transition Point. He was scheduled to be released from his initial active duty for training period of service on 10 July 1987. 8. Accordingly, on 10 July 1987 as ordered he was issued a DD Form 214 (Certificate of Release or Discharge from Active Duty) documenting his 4 months and 23 days of active service. His DD Form 214 contains the following pertinent information: * Block 23 (Type of Separation) – relief from active duty training * Block 24 (Character of Service) – "Entry Level Status" * Block 25 (Separation Authority) – Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) * Block 26 (Separation Code) – "LBK" * Block 28 (Narrative Reason for Separation) – "Expiration of Term of Service" 9. Army Regulation 635-8 (Personnel Separations – Separation Processing and Documents) states in effect that a Reserve Component Soldier who successfully completes initial active duty training should receive an Honorable character of service unless directed otherwise by a separation approval authority. 10. He returned to his USAR unit. On 7 June 1991 he was advanced to specialist four/pay grade E-4. 11. On 5 January 1993 upon his personal request he was reassigned from his USAR unit to the USAR Control Group (Annual Training) by Orders Number 01- 20 issued by Headquarters, 420th Engineer Brigade. 12. On 13 December 1994 he was honorably discharged from the USAR by Orders Number D-12-406464 issued by the USAR Personnel Center, St. Louis, Missouri. 13. The applicant provided the following evidence in support of his application. a. Headquarters, 420th Engineer Brigade (USAR) issued him Orders Number 112-005 on 30 March 1992 ordering him and his unit (Company C, 980th Engineer Battalion) to annual training from on or about 13 June 1992 through on or about 27 June 1992 with duty at Camp Bullis, in the vicinity of Joint Base San Antonio, Texas. b. On 14 January 2004 the U.S. Army Human Resources Command issued him AHRC Form 606 showing he had served for 6 years in a USAR unit. He was honorably discharged from the USAR on 13 December 1994. c. On 28 June 2017 he went to a DVA hospital emergency department because of left ankle pain secondary to a traumatic injury and hypertension. d. On 9 April 2019 he underwent magnetic resonance imaging (MRI) as ordered by a medical provider at a civilian foot and ankle clinic. His medical provider noted the applicant had swollen feet and ankles, joint pain, muscle tenderness, morning stiffness, experienced difficulty walking, had rheumatoid arthritis and depression. From the MRI, his medical provider noted he has ligament laxity with his ankle joint being loose and unstable following an injury or damage to the ligaments in the ankle. He also had peroneal tendinitis with pain and diffused swelling along the base of the fifth metatarsal in the area of the peroneus brevis and peroneus longus tendon. The MRI findings suggested sequela of chronic ankle inversion injury with no acute fracture or an osteochondral lesion small joint effusion. His medical provider recommended he wear an ankle brace on his left foot. e. His provides three statements from former USAR unit members. The first witness attested to the fact he helped get the 2 ˝ ton truck of the applicant’s foot and took him to the hospital for medical treatment. The second witness also attested to the fact the applicant was injured while performing his military duties. The third witness, a retired noncommissioned officer, stated the applicant injured his foot in 1992 while at Camp Bullis, Texas. He was the supervisor. He states that he and the applicant followed all the necessary safety measures when they were jacking up the 2 ˝ ton truck. After 10 to 15 minutes, the jack gave way. The truck fell on the applicant’s ankle and foot. He got another jack to lift the truck up off the applicant’s foot. A maintenance warrant officer was on the scene and he took the applicant to the hospital. When the applicant returned to duty he had a boot and crutches to help him walk. f. On or about 23 January 2018 the applicant completed a Patient Health Questionnarie-9 (PHQ-9) which assess the depression severity of an individual. He took the PHQ-9 at the DVA. His Depression Scale Score on that date was 21 meaning he warranted receiving treatment for depression including antidepressant medication, psychotherapy and/or a combination of treatment. g. A DVA Regional Office prepared its statement of the applicant’s case dating it on 18 January 2020. The applicant only submitted pages 28 and 31. He annotated these two pages highlighting some of the following information: * there is no medical evidence he injured his foot while on active duty * he had periods of active duty for training and inactive duty for training; however, the laws and regulation require in-service injury or disease related by competent evidence to a post-service disability * the law requires a claimant to become disabled during the period of active duty for training or inactive duty training (See Title 38, U.S. Code, section 101(24).) * in June 2018, a foot examination confirmed a diagnosis of left foot trauma, left foot metatarsalgia (ball of foot is painful and inflamed) and hallux valgus * a VA medical examiner opined the hallux valgus is less likely than not related to an injury after reviewing the applicant’s buddy statements * the buddy statements were deemed not credible when weighed against available service treatment records * the objective medical evidence of record shows no line of duty investigation was completed in association with his foot injury * twenty-six years after his alleged incident, a DVA medical center recorded his left foot injury * a civilian medical doctor supplied a "bare conclusion" which was not supported by any rationale h. On 22 June 2021 a counselor with a Doctorate of Philosophy degree provided the DVA with a letter stating the applicant has recurrent PTSD symptoms due to exposure to several traumatic events while serving in the military. The applicant has severe reactions to the stressors of his social activities. He suffers from recurring panic attacks with increased difficulties causing clinically significant distress and social impairment, occupational impairment, and other areas of functioning. The counselor diagnosed the applicant with PTSD and assessed his Global Assessment of Functioning (GAF) at 44. (A GAF score between 41 to 50 indicates a person has serious symptoms including suicidal ideation or any serious impairment in social, occupational, or school functioning.) 14. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: a. The applicant is applying to the ABCMR requesting that his history of a left foot injury and an affirmative line of duty for that injury be added to his records. He states: “Line of Duty and treatment record missing from my file and need those documents to continue treatment form the V.A. and also service connection.” b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. Orders published by the United States Army Personnel Center show the applicant was honorably discharged on 13 December 1994 under provisions in of AR 137-178, Separation of Enlisted Personnel (1 October 1994). c. There are no encounters in AHLTA; no health records or line of duty determinations in MEDCHART; and no DOD health records in JLV. d. Without contemporaneous health records, no evaluation of the applicant’s line of duty relationship to a left foot injury is possible. e. The Privacy Rule, part of the Health Insurance Portability and Accountability Act (HIPAA), gives patients, with few exceptions, the right to inspect, review, and receive a copy of their medical records and billing records that are held by health plans and health care providers covered by the Privacy Rule. This includes the ability to request corrections or amendments to these records when a patient believes information in their medical or billing record is incorrect. f. The Privacy Rule provides individuals with this right to have their protected health information (PHI) amended in a manner that is fully consistent with the Correction Principle in the Privacy and Security Framework (See 45 C.F.R. § 164.526). The health care provider or health plan must respond to this request, and if it created the information, it must amend inaccurate or incomplete information. If the provider or plan does not agree to the request, the patient has the right to submit a statement of disagreement that the provider or plan must add to the record. g. It is the opinion of the Agency Medical Advisor that the applicant’s request cannot be granted. The applicant may consider using the process outlined in HIPAA. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was/was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review of the applicant’s petition, available military records and the medical advisory the Board concurred with the advising official findings that the applicant consider going through the HIPPAA to obtain the necessary medical records he is requesting. Based on this, the Board determined relief was not warranted and denied relief. 2. Prior to closing the case, the Board did note the analyst of record administrative notes below, and recommended the correction is completed to more accurately depict the military service of the applicant. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X X X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: Except for the correction addressed in Administrative Note(s) below, the Board found the evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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): 1. The applicant’s DD Form 214 issued to him on 10 July 1987 shows in Block 24 (Character of Service) an "Entry Level Status" character of service. Contemporary instructions state a Reserve Component Soldier who successfully completes initial active duty training meeting the criteria for award of an MOS should receive an Honorable character of service unless directed otherwise by a separation approval authority. 2. The following administrative correction does not require action by the Board. To his 10 July 1987 DD Form 214, correct is as follows by issuing him a corrective document, mailing him a copy of the document and filing the corrective document in his official military personnel file by, * removing from Block 24 the entry "Entry Level Status" * adding to Block 24 the entry "Honorable" REFERENCES: 1. Title 10, United States Code, 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 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. It provides standards and considerations used in determining line of duty (LD) status. The Commanding General, U.S. Army Human Resources Command has functional responsibility for LD determinations and acts for the Secretary of the Army (SA) on all LD determinations and appeals referred to Headquarters, Department of the Army (HQDA) and all exceptions to procedures prescribed in this regulation. Major continental U.S. Army commander will supervise the LD investigation process under their jurisdiction. The general court-martial convening authority (GCMCA) acts as the final approving authority for formal LD determinations on behalf of the SA and may delegate this authority in writing to a field grade officer on the staff of the GCMCA. a. Line of duty 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. A Soldier of the Army National Guard of the United States or USAR is entitled to hospital benefits, pensions, and other compensation, similar to that for Soldiers of the Active Army for injury, illness, or disease incurred in LD, under the following conditions as prescribed by law (Title 10, U.S. Code, section 1074a): * while performing active duty for a period of 30 days or less * while performing inactive duty training * while traveling directly to or from the place at which that soldier is to perform or has performed active duty for a period of 30 days or less; inactive duty training; or service on funeral honors duty * while remaining overnight immediately before the commencement of inactive duty training, or while remaining overnight, between successive periods of inactive duty training, at or in the vicinity of the site of the inactive duty training b. The attending physician or patient administrator will initiate and complete Section 1 of DA Form 2173. The medical troop medical clinic will forward the DA Form 2173 to the unit commander will ensure the DA Form 2173 is promptly completed and forwarded through channels to the appointing authority. Investigations can be conducted informally by the chain of command where no misconduct or negligence is indicated. Documentation for an informal LD investigation typically consists of DA Form 2173. The military treatment facility commander or an authorized representative (attending physician or patient administrator) will ensure Section I of DA Form 2173 is completed. The unit commander will complete Section II and forward it to the appointing authority or higher authority. The final determination of an informal LD investigation can result in a determination of "in LD" only. The unit commander should complete their regulatory requirements within 30 calendar days of the incident. (For member of the USAR and Army National Guard, the unit administrator or unit commander initiates the DA Form 2173 and coordinates directly with civilian medical providers to complete Section 1.) c. Line of duty determinations must be supported by substantial evidence and by a greater weight of evidence than support any different conclusion. The evidence contained in the investigation must establish a degree of certainty so a reasonable person is convinced of the truth or falseness of a fact. d. The final approving authority will review the LD for completeness and required documents. Upon approval, the approving authority should retain a copy and forward a copy to the Soldier’s official military personnel file for filing in their record. The standard completion time is normally 40 calendar days after the incident. e. Paragraph 4-4 (Time limitations for processing LD actions) states LD should be completed with the prescribed time limits defined in this regulation. When a report is late, comments should be included in the remarks section of the DA Form 2173 for informal reports. It states, "The mere failure to complete an action within the prescribed time or the failure to provide reasons the report is late is not a basis to disapprove, reverse, or change an otherwise proper determination." 3. Army Regulation 638-8 (Casualty and Mortuary Affairs – Army Casualty Program) dated 7 June 2019 and previous editions prescribes the policies and mandates responsibilities, operating tasks, and procedures for the Army Casualty Program. For the purposes of casualty reporting, a casualty is defined as any person lost to an organization by reason of having been declared deceased, duty status-whereabouts unknown, excused absence-whereabouts unknown, missing, injured or ill. Casualty reports, in pertinent part, are required for all USAR and Army National Guard of the United States (ARNG) Soldiers staying at their residence when so authorized by proper authority during the period of such inactive duty training or between successive days of inactive duty training, and/or while going to or from, or while participating in the following authorized training activities: * annual training * active duty for training (ADT) * Full-time National Guard duty (FTNGD) (National Guard Soldiers serving pursuant to state active duty orders are not reportable.) * temporary tour of active duty * initial ADT * scheduled inactive duty training (IDT) * active duty for operational support (ADOS) (ARNG/USAR) * contingency operations-active duty for operational support * special ADT //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210016889 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1