IN THE CASE OF: BOARD DATE: 5 December 2022 DOCKET NUMBER: AR20220005786 APPLICANT AND HIS COUNSEL REQUEST: in effect, a formal Line of Duty (LOD) determination. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Counsel’s Brief * Self-Authored Statement * DD Form 4 (Enlistment/Reenlistment Contract), 10 December 2015 * DD Form 1610 (Request and Authorization for TDY Travel of DOD Personnel) o DD Form 1351-2 (Travel Voucher or Subvoucher) * Disenrollment Memorandum from the U.S. Army Reserve Officers’ Training Corp (ROTC) * DA Form 597-3 (Army Senior ROTC Scholarship Cadet Contract) * Email Thread (25 pages) * DD Form 2808 (Report of Medical Examination) – Incomplete * DD Form 2807-1 (Report of Medical History) – Incomplete * DA Form 2173 (Statement of Medical Examination and Duty Status) – Incomplete * Mayo Clinic Article FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. 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 and his counsel request in effect, a line of duty determination. The applicant, a former ROTC Cadet, developed a serious injury during authorized training at Fort Knox, KY on or about 18 June 2016. During the training, the applicant developed leg injuries and received medical care and treatment from a U.S. Army medical professional prior to his return to the ROTC program in Columbus, OH. Although the applicant was ordered to attend practical military training at Fort Knox, KY, the onsite medical treatment providers did not generate the required DA Form 2173, as required by Army Regulation (AR) 600-8-4 and as authorized by 10 U.S.C Section 2109. The applicant requests a completed DA Form 2173 to document his injury, incurred in the line of duty and while attending practical military training. The applicant may be entitled to treatment for his injuries by the Department of Veterans Affairs; however, he is unable to apply for benefits without a DA Form 2173. Counsel defers to the brief in support of the application. a. During an authorized and approved Cadet Initial Entry Training (CIET) at Fort Knox, Kentucky as part of his Reserve Officer Training Corps (ROTC) program in the summer of 2016, the applicant began to suffer from the beginning stages of what would later be diagnosed as "chronic exertional compartment syndrome." However, it appears that he did not receive a proper diagnosis when he received treatment for his leg injuries with the medics at Fort Knox, Kentucky because they only sought to treat an infection from poison ivy instead of his debilitating leg pain. His condition continued when he returned to his ROTC program at the university where he eventually received his official diagnosis and follow on extensive treatment. The applicant never received a copy of the DA Form 2173 from the injury sustained while on orders. He needs the documentation to be properly completed in order for him to eligible for VA benefits. b. Counsel references Title 38 USC §106 noting that ROTC cadets can qualify for VA benefits under certain limits. See also 38 USC § 1131 which states an ROTC cadet may be entitled to disability eligibility and compensation so long as they are authorized by a competent authority to perform active duty for training and injured or diseased during this period of active duty for training. Under normal circumstances, when a Soldier or ROTC Cadet is injured, the medical treatment facility will complete a DA Form 2173 in accordance with AR 600-8-4. As stated on the form, the principal purpose of a medical provider filling out at a DA Form 2173 is "To provide information regarding a Soldier's status when injury, illness, disease, or death occurs. It tracks and ensures Soldiers are receiving proper benefits and proper institutions/agencies are notified regarding payment and benefits." Specially, the form asks the treatment provider whether a potential injury will "result in a claim against the Government for future medical care," whether "injury illness or disease exist prior to service," and whether "condition existed prior to start of current duty." c. The applicant entered into a contract to serve in the U.S. Army on 10 December 2015 as an Army ROTC cadet. He also received travel orders on 9 June 2016 on a DD Form 1610. His expected duty length was approximately 31 days starting on 18 June 2016. His orders also state in Box 9 that the "TDY Purpose" was "TRAINING ATTENDANCE." Notwithstanding that the applicant should have received a more comprehensive diagnosis and testing when receiving treatment for his leg pain, his complaints as a result of his leg pain should have been captured on his medical records and on a DA Form 2173. If a DA Form 2173 had been completed, it would have captured his leg and muscle injuries developed while he was attending CIET; that his injuries did not arise as a result of misconduct; a determination likely would have been made with regard to him requiring follow on care and that it would likely result in a claim against the Government for future medical care; and that his injury did not exist prior to his arrival at CIET. Regardless, the applicant should have been found in the line of duty, and his medical records should reflect his treatment and care (or lack thereof). It appears that the cadre and medical professionals failed to properly document his leg injuries by not completing a DA Form 2173. Therefore, the applicant respectfully requests that a DA Form 2173 be generated from his medical records so that he may apply for the benefits to which he is lawfully entitled. 3. The applicant and his counsel provide: a. The below listed documents to be referenced in the service record: * DD Form 4 dated 10 December 2015 * DA Form 597-3 dated 10 December 2015 b. A Self-Authored Statement from the applicant, dated 28 January 2022, which states in part: (1) Following his first year in the Army ROTC as a contracted cadet, in Spring 2016, he was given a local "Superior Freshman Cadet of the Year" award due to excellent performance in academics, physical competency, and leadership qualities. His cadre wanted to provide him with extra training, and he was enrolled for the "Cadet Initial Entry Training" (CIET) course at Ft. Knox. He received Active Duty for Training (ADT) orders and traveled in Summer 2016. A significant difference in the training at the school at the training at Fort Knox was the requirement to carry a 60-80 pound rucksack everywhere they went. (2) He began to experience extreme bilateral lower leg pain and other various symptoms nearly 4 weeks in including swelling, a muscle hernia, in addition to feeling intense pain, tightness, and partial paralysis (or "foot drop"). He informed his cadre that day and was sent to the medical tents. Unfortunately, at the time he also had poison ivy rashes on his legs which were beginning to become infected and caused cellulitis. The medics placed more emphasis on the rash and not the pain. They did not offer much explanation, administered an IV, placed him on antibiotics, and had him return to training the following day. (3) After his release, the unit had a 5-mile (non-mandatory) run and for the first time he was unable to complete the run. He fell out of the run from the painful and debilitating symptoms in his lower legs. The run was not mandatory for graduation, and he successfully graduated CIET a couple days later. The cadre directed him to see a doctor if he was still experiencing symptoms following his return home. He continued to experience symptoms and after consulting with the cadre, he agreed to see a doctor. The doctor sent him to a specialist, as his symptoms were not consistent with shin splints or stress fractures. The new physician performed tests and he was diagnosed with Chronic Exertional Compartment Syndrome. He was informed that the condition could have resulted from the change in his fitness routine at CIET. (4) The applicant underwent to surgeries in hopes of improving that consisted of over 100 staples and 30 inches of scarring. He went through extensive rehab and training all summer, but the more he trained, the worse the original symptoms became. By Fall 2017, the symptoms had become more severe than before the surgeries. He suffered nerve damage from the surgeries and could no longer feel sensations in his skin from his shins to ankles. He was informed by his doctor they could redo the surgeries, or he could get a second opinion. The applicant sought a second opinion and was given another treatment option which costs between $20k to $40k. The applicant sought guidance from the ROTC leadership and was told he should likely figure out how to get the money for the surgery or run the risks of having to pay back the ROTC scholarship. The applicant got the money from his fiancé and the treatment was unsuccessful. (5) He entered his senior year of school with concerns since he had not passed an Army Physical Fitness Test (APFT) due to his condition. There was turnover in the leadership team and the new leadership was not aware of his condition. He scheduled a meeting with the new battalion commander (BC) to explain the challenges. Nearly six months later he was called into the BC’s office and handed a memorandum which indicated effective immediately he was disenrolled from the ROTC program under the provisions of AR 145-1, paragraph 3-43a(5) due to a “disqualifying medical condition, history of exertional syndrome.” He was informed he was no longer obligated to the Army, and he could turn around and go home, which he did. He received nothing further outside of a few calls from HR to inform him of how the scholarship debt was paid. He still continued to suffer from severe pain and disabling symptoms of Chronic Exertional Compartment Syndrome. He has continued to receive treatment and was recently informed that he could potentially be missing benefits, which led him to seek counsel. c. A DD Form 1610, dated 9 June 2016, shows the applicant was authorized to travel by air to attend training for approximately 31 days in a temporary duty (TDY) status at Fort Knox, KY. Following his return on 18 July 2016, he completed a DD Form 1351-2 for expenses incurred during TDY. d. A memorandum signed by the Commanding General, dated 19 February 2019, notified the applicant he was disenrolled and would be discharged from the ROTC program under the provisions of Army Regulation 145-1 due to a disqualifying medical condition, history of exertional syndrome. His disenrollment was not due to a failure to disclose. e. An email thread (25 pages) between the applicant and ROTC leadership regarding his conditions, updates, and limitations of his profile. f. The below documents with the applicant’s personal information; however, incomplete without signatures from the applicant nor a review by medical personnel. * DD Form 2808 * DD Form 2807-1 * DA Form 2173 g. A Mayo Clinic article that outlines Chronic Exertional Compartment Syndrome and provides an overview, symptoms, causes, risk factors, complications, diagnosis, and treatment options. 4. A review of the applicant’s service record shows: a. A DD Form 4 shows he enlisted on 10 December 2015 in the U.S. Army Reserve as a cadet for a period of 8 years. b. The applicant executed a DA Form 597-3 (Exhibit D), 10 December 2015, to receive a 4-year ROTC scholarship for the period 25 August 2015 through 5 May 2019. By signing this contract, he agreed to receive scholarship benefits, including tuition and fees, books, laboratory expenses, and monthly subsistence, in exchange for appointment as a Reserve officer in the Army upon successful completion of all academic, military, and other requirements of the Army ROTC Program. c. Part II (Agreement of Scholarship Cadet Contracting Into the Senior ROTC Program) states: "I hereby agree to the following:” (1) Paragraph 2f(1) (Medical and Physical Fitness Standards) states: "I agree to maintain eligibility for enrollment and retention n ROTC and commissioning, as defined by statute, Army regulation, and this contract, throughout the period of this contract." (2) Paragraph 8 (Release from Obligation) states: "I understand that the Secretary of the Army or his/her designee may at any time release me without notice from the obligations under this contract and disenroll me from the ROTC Program without further benefits hereunder if, in the opinion of the Secretary of the Army or his or her designee, it is in the best Interest of the Army." (3) Paragraph 12 (Complete Agreement and Severability) further states, in part, the cadet understood the provisions in the contract contain the only binding promises by and to both parties. This agreement controls over any conflicting advice or information that [he] may have received orally or in writing from Cadet Command, [his] PMS, or the cadre, cadets or others regarding [his] obligations and agreements to the Army. d. The service record includes the applicant’s Department of Defense (DoD) Review Board medical examinations for the purpose of participating in the ROTC Scholarship Program which indicated he was generally in good health with a history of right shoulder injury due to football. * DD Form 2351 (Report of Medical Examination) dated 25 June 2015 with a Report of Optometric Screening dated 23 June 2015 * DD Form 2492 (Report of Medical History) dated 25 June 2015 e. Orders CC-6213-00008, dated 31 July 2016, ordered the applicant to ADT for professional development (CLC) at Fort Knox, KY for a period of approximately 32 days with a report date of 18 June 2016. f. Orders CC-8114-00126, dated 24 April 2018, ordered the applicant to ADT for professional development (CIET) at Fort Knox, KY for a period of approximately 31 days with a report date of 9 July 2018. g. The applicant’s service record is void of the facts and circumstances surrounding his discharge from the ROTC program. 5. On 22 August 2022, the U.S. Army Human Resources Command (HRC) Chief, Casualty and Mortuary Affairs Operations Division, provided an advisory opinion in the processing of this case. She opined: a. In the spring of 2016, the applicant was selected for Cadet Initial Entry Training (CIET) professional development training based on excellent performance in academics, physical competency, and leadership qualities at Ohio State University. He had also been awarded Superior Freshman Cadet of the Year. While at CIET the summer of 2016, the applicant ranked highly in his class until he began experiencing extreme bilateral lower leg pain. CIET training required a significantly greater level of exertion, including frequently rucking 60-80 lbs. He described increasing symptoms consistent with compartment syndrome. He was treated by a military treatment facility (MTF) on 2 and 6 July 2016. b. Typically, in early stages of the condition the symptoms of compartment syndrome initially diminish with time and rest and may not have drawn sufficient attention as medics focused on a poison ivy reaction, an insect sting and cellulitis which may further aggravate compartment syndrome. The applicant attempted a 5-mile unit run a few days later but was unable to complete the task due to leg pain. He was given instructions to rest as the consensus opinion was possibly shin splints. After symptomatology was inconsistent with shin splints, he was further evaluated by a specialist and chronic exertion compartment syndrome (CECS) was determined following his return to college. c. CECS occurs with intensive training as in athletes and elite military physical training. The condition worsens with every episode when there is further aggravation of the condition, such as the attempted 5-mile run. With each recurrent episode, there is further damage and eventually will require surgery which is not always successful. The applicant had 5 surgeries in his attempt to remain in the service. He had no evidence of CECS prior to engaging in elite level military training. The condition progressively worsened with training to the point that the applicant was unable to recover from this condition. The applicant developed severe and debilitating leg injuries while at CIET at Fort Knox, KY. He has had 5 surgeries that have failed and still requires treatment to this day. In the medical opinion received by AHRC, the applicant’s CECS is a direct result of his military physical training requirements while attending CIET. 6. On 2 September 2022, the advisory opinion was forwarded to the applicant for acknowledgment and/or response. The applicant has not provided a response to date. 7. By regulation (AR 145-1), states an applicant for membership in or a member of the SROTC Program who suffers an injury, disease, illness, disability or death incurred in the line of duty, while engaged in any authorized ROTC training or performing authorized travel to or from the training site, may be eligible to receive medical care coverage and compensation benefits from either (or both) of the Department of Labor or the Veteran’s Administration (VA). 8. By regulation (AR 600-8-4), a formal LOD investigation is a detailed investigation that normally begins with 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. 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. 9. Title 38, United States Code, Sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a VA rating does not establish an error or injustice on the part of the Army. 10. Title 38, Code of Federal Regulations, Part IV is the VA’s schedule for rating disabilities. The VA awards disability ratings to Veterans for service-connected conditions, including those conditions detected after discharge. As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his/her duties. Unlike the Army, the VA can evaluate a Veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 11. 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, the Army Aeromedical Resource Office (AERO), and/or 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 an affirmative line of duty finding for bilateral leg injuries he sustained while a Cadet in the State University Reserve Officer Training Corps program. The request was made so the applicant may apply for VA benefits. b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. c. While a ROTC Cadet, the applicant developed chronic exertional compartment syndrome (CECS) in both legs. Despite numerous surgeries, he was unable to return to full duty and he was disenrolled from the program in February 2019. d. From paragraph 4-2c of AR 635–40, Physical Evaluation for Retention, Retirement, or Separation (19 January 2017): “Reserve Officers' Training Corps cadets are not eligible for processing through the DES, even if injured during training. e. However, as noted by applicant’s counsel, these Cadets may be eligible for VA benefits f. The United States Army Human Resources Command (USAHRC) has the functional responsibility for the Army’s line of duty processes. Paragraph 1-6a of AR 600-8-4, Line of Duty Policy, Procedures, and Investigations (15 April 2004): “The Commanding General (CG), U.S. Army Human Resources Command (USA HRC) will have functional responsibility for LD determinations and act for the SA on all LD determinations and appeals referred to Headquarters, Department of the Army (HQDA) and all exceptions to procedures described in this regulation.” g. The 22 August 2022 advisory opinion from the United States Army Human Recourses Command (USAHRC) clearly lays out the applicant’s condition, treatments, and line of duty connection to his period of military service, concluding: “Cadet {Applicant} developed severe and debilitating leg injuries while at CIET { Cadet Initial Entry Training} at Fort Knox, KY. The Cadet has had 5 surgeries that have failed and still requires treatment to this day. In the medical opinion received by AHRC, Cadet {Applicant}'s CECS is a direct result of his military physical training requirements while attending CIET.” h. It is the opinion of the ARBA Medical Advisor that USAHRC’s Advisory Opinion more than fully meets all the requirements of an affirmative line of duty finding. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was warranted. The Board carefully considered applicant’s contentions, military record, advisory opinion and regulatory guidance. The Board reviewed and concurred with the advisory official finding the applicant developed severe and debilitating leg injuries while at CIET (Cadet Initial Entry Training) at Fort Knox, KY. The Board further noted the applicant has had multiple unsuccessful surgeries and continues to require treatment to date. Based upon a preponderance of the evidence, the Board determined the Board determined the evidence presented sufficient to warrant a recommendation for relief. 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: 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 issuing a DA Form 2173 (Statement of Medical Examination and Duty Status) which reflects the injuries the applicant sustained on or about 18 June 2016 were incurred in the line of duty (LOD). 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, U.S. 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 145-1 (Senior ROTC Program: Organization, Administration, and Training) prescribes policies and general procedures for administering the Army's Senior ROTC Program. a. Paragraph 3-43 (Disenrollment) states a non-scholarship cadet may be disenrolled by the PMS. A scholarship cadet may be disenrolled only by the Commanding General, ROTC Cadet Command. Paragraph 3-43a(5) states nonscholarship and scholarship cadets will be disenrolled for medical disqualification (to include pregnancy if complications exist) when determined and approved by HQ, ROTCCC, or higher authority. A medical condition that precludes appointment will be cause for disenrollment. b. Paragraph 3-49 (Insurance, Medical, and Related Benefits) states an applicant for membership is a student enrolled (but not contracted) during a semester or other enrollment term, in a course that is a part of SROTC instruction at an educational institution. An applicant for membership in or a member of the SROTC Program who suffers an injury, disease, illness, disability or death incurred in the line of duty, while engaged in any authorized ROTC training or performing authorized travel to or from the training site, may be eligible to receive medical care coverage and compensation benefits from either (or both) of the Department of Labor or the Veteran’s Administration (VA). 3. 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 determining LOD status. a. This regulation applies to the Active Army, the Army National Guard, and the U.S. Army Reserve; members of the Reserve Officers' Training Corps Simultaneous Membership Program; cadets of the U.S. Military Academy; and cadets and students enrolled in Senior Reserve Officers' Training Corps and applicants for enrollment while engaged in a flight or in flight instruction authorized by Section 2110, Title 10, United States Code, or while performing authorized travel to, from, or while attending training or a practice cruise under Section 2109, Title 10, United States Code. b. A formal LOD investigation is a detailed investigation that normally begins with 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 (Report of Investigation Line of Duty and Misconduct Status) appends appropriate statements and other documentation to support the determination, which is submitted to the General Court Martial Convening Authority for approval. c. The worsening of a pre-existing medical condition over and 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. d. 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. 6. Title 38 U.S. Code, section 1110 (General - Basic Entitlement), states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 7. Title 38 U.S. Code, section 1131 (Peacetime Disability Compensation - Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the Veteran's own willful misconduct or abuse of alcohol or drugs. 8. Title 38, USC, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, an individual’s medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. 9. Section 1556 of Title 10, United States Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220005786 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1