IN THE CASE OF: BOARD DATE: 14 July 2022 DOCKET NUMBER: AR20210008059 APPLICANT REQUESTS: in effect, correction to her record to show the injuries sustained on 24 February 2016 were determined to be in the line of duty (ILD). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Vehicle Collision Report * 3 Radiology Reports FACTS: 1. The applicant did not file within the three-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: a. She was injured while serving in an Active Duty Operational Support (ADOS) status. She was a passenger in a government vehicle when it was hit, head on, by a deer. At the time of the impact, she was turned facing the driver. A few weeks after the accident she started suffering from severe dizziness, motion sickness, and headaches. She underwent an MRI (C Spine and T Spine) that showed she had herniated and bulging discs. She was put on a profile. She contends that she was not instructed to get a lumbar MRI. However, in 2018, she had an MRI which showed that her L5-S1 were fractured. b. She contends that her LD was denied because she completely forgot about the car accident. She further contends that she tried to appeal the LD decision; however, she could not get anyone to return her telephone calls until after the deadline. She was not evaluated by a medical board and she was never notified that she was being discharged. 3. The applicant enlisted in the Idaho Army National Guard on 20 August 2014. 4. The applicant’s DA Form 2173 (Statement of Medical Examination and Duty Status), is not available for review; however, the record shows: a. Orders 027-009, issued by the Military Division, State of Idaho, on 27 January 2016, ordered the applicant to Full Time National Guard Duty for the period 23 January 2016 through 29 September 2016. b. On 4 May 2017, the applicant’s commander determined the applicant was “Not fit for duty.” The commander completed a DA Form 4187 (Personnel Action) which states: * the applicant did not meet the standards of medical fitness in accordance with AR 40-501 (Standards of Medical Fitness), paragraph 3-30j, 3-41e(1), 3-41e(2) * her lumbar radiculopathy due to multilevel disc degeneration with herniation was a disqualifying medical condition * she was an M-Day Soldier * based on the documentation in the medical record, her medical conditions were not duty related c. On 14 June 2017, the applicant was issued a permanent profile for her lower back injury/pain. The DA Form 3349-SG (Physical Profile Record) began on 15 May 2017, and further shows the applicant was referred to a Non-Duty Physical Evaluation Board (ND-PEB). d. On 29 June 2017, the applicant was notified of the commander’s intent to initiate separation action from the ARNG under the provision of National Guard Regulation (NGR) 600-200 (Personnel-General-Enlisted Personnel Management), chapter 6 and Army Regulation (AR) 135-178 (ARNG and Reserve-Enlisted Administrative Separations), chapter 15. Her lumbar radiculopathy due to multilevel disc degeneration with herniation was identified as a disqualifying condition. The applicant was told that she must request a PEB by 29 July 2017. This PEB was solely for a fitness determination but not a determination of eligibility for disability benefits. e. The applicant did not acknowledge this notification, and therefore, did not make an election for a PEB. f. The applicant was honorably discharged from the ARNG on 31 July 2017, by reason of being medically unfit for retention per AR 40-501. Her National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows she completed 2 years, 11 months, and 11 days of net service for pay. The applicant was unavailable for signature. 5. The NGB submitted an advisory opinion on 21 January 2022 in the processing of this case. An NGB official stated the Soldier requests to have the Formal Line of Duty investigation for amended and considered favorably In Line of Duty (ILD) by the Board. The NGB recommends Partial Approval. a. Soldier requests that her Not in Line of Duty – Not Due to Own Misconduct (NILD – NDOM) decision be amended to an In Line of Duty (ILD) determination due to the fact that she was on Active Duty for Operational Support (ADOS) orders and because her medical issues with her back stem from a motor vehicle accident that occurred while she was on ADOS orders for a period of over 30 days. b. On 24 February 2016 while on ADOS order and traveling in a General Service Administration (GSA) vehicle as a passenger [Applicant] was struck by a deer, where she initially did not experience any pain, until a few days later when she started suffering from severe dizziness and motion sickness with severe headaches. Soldier received an MRI C Spine and T Spine that showed herniated and bulging discs. Soldier was put on profile and states that she was not instructed to get a lumbar MRI. She eventually did get an MRI in 2018 that showed L5-S1 fractured. Soldier additionally states that her LOD was denied because there was no mention of her vehicle accident, and that she could not reach anyone to appeal the decision after the deadline to appeal had passed, and therefore she was not entered into the medical board process per Army Regulation. c. The ARNG has provided a detailed timeline of events after the Soldier’s motor vehicle accident while on ADOS (Order #027-009) from 23 January 2016 thru 29 September 2016. Per medical records the Soldier was initially seen for an abnormal MRI brain scan, cervical and thoracic Spine MRI, but no mention of lumbar pain twice during the month of May 2016, then on 1 June 2016 the Soldier is seen for a follow up where the Soldier reports new onset of Lumbar Pain that includes episodic tingling of left buttocks and left thigh. On 23 June 2016, the Soldier requested a referral to a neurosurgeon and her doctor referred her to physical therapy with future MRI if condition does not improve. d. The IDARNG assigned an Investigating Officer (IO) to review the Soldier’s LOD investigation and determined that it was in his opinion NILD- NDOM because the Soldier had written in her sworn statement that she was unsure of how her injury occurred. The IO concluded that most likely the injury to the Soldier’s multilevel mid thoracic disc degeneration with small posterior disc bulges with no central canal or neural foraminal stenosis existed prior to service (EPTS). The State Surgeon however considers the Soldier’s medical issues to be ILD, because while there is a presumption that the Soldier’s medical issues EPTS, the fact is that the Soldier experienced a “new onset low back pain with radiculopathy, was seen by a medical provider and was diagnosed with intervertebral disc degeneration in the lumbar area bilaterally during a period while she was on ADOS orders. e. Department of Defense Instruction 1332.18, Presumption of Sound Condition for Members on Continuous Orders to Active Duty Specifying a Period of More Than 30 Days states that “The Secretaries of the Military Departments may overcome the presumption that a disease or injury was incurred or aggravated in the LOD only when clear and unmistakable evidence indicates the disease or injury existed prior to their current period of military service and was not aggravated by their current period of military service. f. National Guard Regulation (NGR) 600-200, para 8-26J states if “Commanders suspect that a Soldier may not be medically qualified for retention, will direct the Soldier to report for a complete medical examination per AR 40-501. Commanders who do not recommend retention will request the Soldier’s discharge. When medical condition was incurred in line of duty, the procedures of AR 600-8-4 will apply. g. Army Regulation (AR) 40-400, chapter 7 states that when a physician identifies a Soldier with a medical condition not meeting fitness standards for retention will initiate a DA form 3349 referring them to the Physical Disability Evaluation System (PDES). If Soldiers do not meet retentions standards, an MEB is mandatory and will be initiated by a Physical Evaluation Board Liaison Officer (PEBLO). h. AR 40-501, chapter 7 states that if a profile is permanent, the profiling officer must assess if the Soldier meets the medical retention standards of chapter 3. Those Soldier on active duty who do not meet the medical retention standards must be referred to a MEB as per chapter 3. i. AR 600-8-4, paragraph 16-6 states that all Not in Line of Duty recommendation cases be forward to The Adjutant General, United States Army Human Resources Command for final review and notification to the Soldier. j. Based on the evidence presented and acquired during the review of this ABCMR claim, this office partially supports the Soldier’s claim and recommends that the U.S. Army Human Resources Command have the Army National Guard Bureau reconsider the LOD case in accordance with AR 600-8-4, chapter 16. (1) There is enough medical documentation that was recovered to suggest that the Soldier’s medical issues arose from the Soldier’s motor vehicle accident during a period of active duty status longer than 30 days. (2) The Army National Guard Office of the Chief Surgeon also made the most logical conclusion in finding the Soldier NILD because the evidence from the IOs investigation did not show that the Soldier was ever in a motor vehicle accident, in a GSA vehicle during a period of active duty. (3) Additionally, if the LOD investigation determines the Soldier’s medical issues are ILD, it is recommended that the Office of the Surgeon General provide the Soldier invitational travel orders to the nearest Medical Treatment Facility in order for the Soldier to undergo a Medical Evaluation Board. k. The opinion of this office was coordinated with the Idaho Army National Guard and the Army National Guard LOD section. 8. The applicant was provided a copy of the advisory opinion for her review. She did not provide any additional comments. 7. The applicant provided a collision report, which shows she was a passenger in a motor vehicle on 24 February 2016 when it struck an animal. 8. In addition, she provided a radiology reports from MRI’s pertaining to her brain or spine, which occurred on 30 April 2016, 24 May 2016, and 18 December 2017. 9. Regulatory guidance states commanders, who suspect that a Soldier may not be medically qualified for retention, will direct the Soldier to report for a complete medical examination per AR 40-501. Commanders who do not recommend retention will request the Soldier's discharge. When the medical condition was incurred ILD, the procedures of AR 600-8-4 will apply. Discharge will not be ordered while the case is pending final disposition. BOARD DISCUSSION: 1. The Board considered the application and supporting documents and found relief is warranted. 2. The Board found the evidence confirms the applicant incurred an injury in the line of duty, and that the resulting disabling condition warranted referral to a Medical Evaluation Board. The Board determined the applicant’s record should be corrected to show the injuries she sustained on 24 February 2016 were incurred in the line of duty and she should be afforded processing through the Disability Evaluation System to determine if she should be separated with severance pay or retired due to disability. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : 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 relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the injuries she sustained on 24 February 2016 were incurred in the line of duty. 2. As a result of this correction, her records should be referred to the Disability Evaluation System for consideration of any diagnoses identified as having not met retention standards prior to her discharge. a. If a formal Physical Evaluation Board (PEB) becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of her case by a formal PEB. All required reviews and approvals will be made subsequent to completion of the formal PEB. b. Should a determination be made that the applicant should be retired or discharged for disability, these proceedings serve as the authority to issue her the appropriate separation retroactive to her original separation date, with entitlement to all back pay and allowances and/or retired pay, less any entitlements already received. 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 Amy Review Board for Correction of Military Records (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. It states – a. A Soldier of the National Guard 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 the LOD, under the following conditions prescribed by law, Title 10, USC, 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 b. The LD determination is presumed to be "LD YES" without an investigation in the case of disease, except when (1) the disease or medical condition occurs under strange or doubtful circumstances or is apparently due to misconduct or willful negligence or (2) when a U.S. Army Reserve or Army National Guard Soldier is serving on an active duty tour of 30 days or less is disabled due to disease. 3. AR 635-40 (Physical Evaluation for the Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System and sets forth policies, responsibility, and procedures that apply in determining whether a member is unfit because of physical disability to perform the duties of his office, grade, rank, or rating. a. The mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating. b. When a member is being separated by reasons other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she is scheduled for separation or retirement creates a presumption that he or she is fit. This presumption may be overcome only by clear and convincing evidence that he or she is unable to perform his or her duties for a period of time or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, renders the member unfit. 4. National Guard Regulation 600-200 (Enlisted Personnel Management) states paragraph 6-35 lists additional reasons for involuntary separation from the State ARNG. It states - a. All involuntary administrative separations require commanders to notify Soldiers concerning intent to initiate separation procedures. b. Paragraph 6-35i states a Soldier can be involuntarily separated from the State ARNG when found to be medically unfit for retention per AR 40-501 (Medical Services- Standards of Fitness). Commanders, who suspect that a Soldier may not be medically qualified for retention, will direct the Soldier to report for a complete medical examination per AR 40-501. If the Soldier refuses to obtain required physical, the Soldier will be notified in writing of the requirement to obtain a physical, and given 90 days after the letter is mailed to comply. Commander can authorize an extension of up to 60 days for extenuating circumstances: 5. AR 15-185 (ABCMR), 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 ABCMR Record of Proceedings (cont) AR20210008059 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1