IN THE CASE OF: 

		BOARD DATE: 9 June 2023

		DOCKET NUMBER: AR20220006630


APPLICANT REQUESTS:  in effect, 

*	amendment of the reason/diagnosis of his line of duty (LOD) determination to 
show ankle fracture instead of the Board grant of "ankle surgery" as the result of 
his previous request; in effect, reconsideration of his previous request for a 
change of his original LOD reason/diagnosis of ankle sprain to "ankle surgery"
*	and as a new issue, back pay for incapacitation due to an ankle injury incurred in 
the LOD 

APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD:

*	Self-authored Statement in lieu of DD Form 149 (Application for Correction of 
Military Record), 4 August 2022 
*	Privacy Authorization Release Form, 23 February 2022
*	Army Board for Correction of Military Records letter, 14 January 2021
*	ABCMR Docket Number AR20180005602, 10 September 2020
*	W-2 (2017 Earnings Statement)
*	Veterans Administration (VA) Rating Decision, 16 November 2017


FACTS:

1.  Incorporated herein by reference are military records which were summarized in the 
previous consideration of the applicant's case by the Army Board for Correction of 
Military Records (ABCMR) in Docket Number AR20180005602 on 10 September 2020.

2.  The applicant states, in effect:

	a.  In 2013, he sustained an ankle injury during company physical training with the 
Colorado Army National Guard (COARNG).

	b.  He received incapacitation pay while he recovered from surgery.

	c.  His ankle continued to worsen and he was referred to a surgeon who advised a 
second surgery to get full range of motion and the surgery was completed in 2017.

	d.  In 2017 he inquired with the COARNG for incapacitation pay while he was still 
under his enlistment. He was pending a second surgery on his left ankle. It was denied 
as there was no connection between his first and second surgery. His medical records 
recorded his injury as a strain.

	e.  He was advised to request his medical records be amended to show ankle 
fracture and he applied to the ABCMR in 2017.

	f.  In January 2021, the ABCMR granted him full relief to his request to show his 
LOD was the result of ankle surgery. It has been over 13 months with no resolution to 
his case.

	g.  He is being told he is no longer with the COARNG and there is no means to 
make this adjustment.

	h.  He has over 30 pages of email back and forth with the COARNG with no 
resolution.

	i.  He calculated entitlement to $6824.02 in civilian pay. In June (2017) he received 
no pay from the Veterans Administration (VA). He received $2915.55 at 100% from the 
VA from July to November (2017). 

3.  The applicant provided copies of:

	a.  His DD Form 149 application with a self-authored statement, outlined above.

	b.  A W-2 from 2017, showing he earned $40,944.13 in gross pay that year.

	c.  A VA grant determination letter (page 1 and 2 only), 16 November 2017, showing 
a monthly entitlement of $2,915.55 was granted beginning on 1 July 2017. He was 
granted 100% for left ankle avulsion fracture of calcaneus, arthroscopy repair with 
subsequent DJD and residual pain (ankle condition) beginning 22 June 2017 and 0% 
(zero) for left ankle scars, status post arthroscopic surgery. 

	d.  A privacy authorization form, 23 February 2022, from his congressman's office.

	e.  A letter from ARBA to the applicant, 14 January 2021, showing his case 
(AR20180005602) had been forwarded to U.S. Army Human Resources Command for 
action.

	f.  ABCMR Docket Number AR20180005602, 10 September 2020.

	g. A congressional inquiry sent to ARBA by email, 28 July 2022.

4.  A review of the applicant's service records shows:

	a.  On 3 May 2010, he enlisted in the COARNG, following broken service and prior 
enlisted service in the COARNG.

	b.  His records contain or the applicant previously provided a copy of a TRICARE 
letter, 12 June 2014, showing his referral request was approved for ankle 
arthroscopy/surgery.

	c.  On 28 August 2014, he was placed on physical profile for a left ankle injury, 
status post-surgery. A DA Form 3349 (Physical Profile) shows he was undergoing 
physical therapy, limited from running, completing a ruck march, walking, and he was 
assigned a temporary lower extremity numerical rating of 2, due to a left ankle injury 
status post-surgery. This profile was set to expire on 28 August 2014.

	d.  On 14 January 2016, he was honorably released from active duty following 
mobilization to Southwest Asia (Kuwait) and completion of required active duty service. 
His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he 
completed 7 months and 17 days of net active service this period.

	e.  On 9 November 2016, he extended his enlistment for 1 year to 2 December 
2017.

	f.  His records contain or the applicant previously provided:

      (1)  A (Private Company) medical evaluation, 25 April 2017, showing the 
examining physician evaluated his left ankle for continuing tenderness and pain and 
recommended surgical intervention. The physician's narrative indicates the applicant 
was in physical training on 25 July 2013 and rolled his left ankle. He completed physical 
therapy with no significant progress. In 2014, he underwent an ankle arthroscopy with 
initial improvement but pain returned.

		(2)  A (Private Company) progress note, 16 June 2017, showing he sustained an 
ankle injury in 2013 while in the Army National Guard and the examining physician 
recommended ankle arthroscopy with possible Brostrom stabilization.

		(3)  A (Private Company) post-surgery operative report, showing on 22 June 
2017, he underwent left-ankle arthroscopy with extensive debridement and Brostrom 
stabilization.

   g.  On 5 December 2017, Joint Force Headquarters, COARNG issued him 
Orders 339-002, discharging him from the COARNG and as a reserve of the Army, 
effective 2 December 2017. The assignment/loss code was expiration term of service.

	h.  On 2 December 2017, he was discharged from the COARNG by reason of 
expiration term of service. His NGB Form 22 (National Guard Report of Separation and 
Record of Service) shows his rank as staff-sergeant (E-6) and he completed 7 years 
and 7 months of net service this period.

	i.  An email from the Hospital for Special Surgery (HSS), Non-commissioned Officer 
in Charge, D Company, 2nd Battalion, 135th Aviation Regiment, COARNG, 14 March 
2018, to the applicant shows his unit was unable to correct his LOD determination to 
show his medical procedure and recommended he apply through the ABCMR.

	j.  A subsequent email from the HSS, NCOIC, 2/135 Aviation Battalion, COARNG, 
19 March 2018, to the applicant suggested his diagnosis be corrected to "unspecified 
fracture of left calcaneus, sequela."

   k.  In ABCMR Docket Number AR20180005602, 10 September 2020, the Board 
granted his request to correct his LOD determination to reflect "ankle surgery" instead of 
ankle sprain. The Board concluded the LOD (CO-13-00184, August 2014) should be 
changed to more accurately reflect the designation of the injury and the procedure to 
correct it.

	l.  On 14 January 2021, the ABCMR issued a memorandum to the Commander, 
U.S. Army Human Resources Command to correct the applicant’s records as shown 
under the Board Determination/Recommendation in ABCMR Docket Number 
AR20180005602.

	m.  The COARNG LOD determination is not contained in the applicant's available 
records.

5.  MEDICAL REVIEW:

    a.  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/or the Interactive Personnel Electronic Records Management System 
(iPERMS).  The ARBA Medical Advisor made the following findings and 
recommendations: 
    b.  The applicant is applying to the ABCMR requesting his army medical records be 
modified to reflect the finding of the ARCMR on 10 September 2020 (AR20180005602) 
and that he be awarded incapacitation pay of $3,907.37 for a period of total 
incapacitation from 1 July through 30 November 2017 following a second ankle surgery 
on 26 June 2017 for his in line of duty ankle injury.
    c.  The Record of Proceedings details the applicant’s service and the circumstances 
of the case.  
    d.  On 14 April 2017, the applicant was placed on a non-duty limiting permanent 
physical profile for “Ankle/Foot Injury/Pain (Bilateral)”.  The applicant was marked as 
fully capable of performing all the functional activities required of all Soldiers, including 
live in an austere environment.  The profile simply allowed the applicant to perform an 
alternate aerobic event in lieu of the 2-mile run event for his Army Physical Fitness Test 
(APFT).  No further permanent profiles were issued.  
    e.  Though it would be expected and required for an incapacitation pay application, 
there is no temporary profile corresponding with his second surgical procedure in June 
2017.
    f.  The operative report shows the applicant underwent several procedures on the left 
ankle on 27 June 2017 and the postoperative plan was for the applicant to be non-
weightbearing on the left lower extremity for 4 weeks.
    g.  Paragraph 1-5 AR 135-381, Incapacitation of Reserve Component Soldiers (27 
December 2006), states:
“The objective of the RC {Reserve Component} Incapacitation System is to 
compensate, to the extent permitted by law, members of the Reserve 
Components who are unable to perform military duties and/or who demonstrate a 
loss in civilian earned income as a result of an injury, illness, or disease incurred 
or aggravated in the line of duty and to provide the required medical and dental 
care associated with the incapacitation.”
    h.  The process requires the applicant submit an application containing the evidence 
upon which an Incapacitation Board may evaluate their claim.  DA PAM 135-381,  
Incapacitation of Reserve Component Soldiers Processing Procedures (22 May 2008) 
shows this needs to include: 
*	Proof of employment at the time of incapacitation.  If not employed, there is 
no loss of income to replace.
*	Employer verification of employment status, salary, and that the applicant 
cannot work in any capacity in their business.
*	Identification off all sources of income, including VA disability payments and 
drill pay.
*	Supporting medical documentation which needs to include the diagnosis, 
therapeutic plan, limitations, prognosis, and ideally the expected date of 
return to civilian employment.
*	DA Form 3349, Physical Profile
*	DA Form 7574, Incapacitation Pay Monthly Claim Form, one for each claimed 
month.
*	DA Form 7574-1, Military Physician’s Statement of Soldier’s Incapacitation / 
Fitness for Duty.

    i.  Other than some post-operative medical documentation and a 2017 W-2 showing 
the applicant was employed by Stevinson Toyota East for some period of time in 2017, 
the remaining required documentation is not available for review.  Hence, there is 
insufficient evidence upon which to evaluate his claim/request. 
    j.  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.    
    k.  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.
    l.  It is the recommendation of the ARBA medical advisor the applicant’s request be 
denied and he be encouraged to seek to correct his medical record utilizing the process 
outlined in HIPAA.








BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board found that relief 
was not warranted. The applicant’s contentions, the military record, a medical advisory, 
and regulatory guidance were carefully considered. The Board concurred with the 
advisory opinion finding there is insufficient evidence upon which to evaluate his 
claim/request. The medical advisor further recommended the applicant seek correction 
of his medical record utilizing the process outlined in HIPAA. For that reason, the Board 
recommended that denying the requested relief was appropriate.


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:

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 to amend the decision of the ABCMR set forth in Docket Number 
AR20180005602 on 10 September 2020.
	 
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.  Army Regulation 600-8-4 (Line of Duty Policy, Procedures, and Investigations) 
prescribes policies, procedures, and mandated tasks governing line of duty 
determinations of soldiers who die or sustain certain injuries, diseases, or illnesses. It 
implements Titles 5, 10, and 32, United States Code. It takes precedence over all other 
publications relating to line of duty.

   a.  Paragraph 4-18 (Revision or correction of line of duty determinations) states the 
Adjutant General of the Army cation on behalf of the Commanding General, U.S. Army 
Human Resource Command (AHRC) and acting for the Secretary of the Army as 
delegated may change a determination made under this regulation. The correct 
conclusion based on the facts must be shown. However, if the change is from In the 
Line of Duty to Not in the Line of Duty (NLD) or, it other evidence is considered which 
supports NLD determination, the Soldier must be informed of the proposed change, its 
basis, and his or her rights under paragraph 3-3b, and be given a chance to respond in 
writing in accordance with paragraph 3-12b.

	b.  Paragraph 4-19. The agencies that process cases for physical disability 
separation are not bound by prior LD determinations. When the U.S. Army Physical 
Disability Agency believes that a prior LD determination may be incorrect for any 
reason, a request for review should be sent to HQDA, U.S. Army Human Resources 
Command, clearly detailing the reason for such action.

2.  Title 10, U.S. Code, section 1552, the law which governs the operation of the Board, 
states that “The Secretary may pay, from applicable current appropriations, a claim for 
the loss of pay, allowances, compensation, emoluments, or other pecuniary benefits, or 
the repayment of a fine or forfeiture, if, as a result of correcting a record under this 
section, the amount is found to be due the claimant on account of his or another’s 
service in the Army, Navy, Air Force, Marine Corps or Coast Guard, as the case may 
be.”

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	AR20220006630


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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