IN THE CASE OF: BOARD DATE: 9 November 2023 DOCKET NUMBER: AR20230002403 APPLICANT REQUESTS: * approval of a line of duty (LOD) determination for an injury sustained on 19 July 2015 while attending annual training * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 2173 (Statement of Medical Examination and Duty Status), dated 3 December 2017 * Office of the Armed Forces Medical Examiner Case Consult, dated 15 August 2017 * Memorandum from the Office of the Staff Judge Advocate, Virginia National Guard, subject: Legal Review of the Report of Investigation Concerning the Line of Duty and Misconduct Status of (applicant), dated 20 September 2017 * medical record (prenatal visit) * eight DA Forms 2823 (Sworn Statement) 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 states an LOD determination in 2015 was found not in LOD but the investigating officer only investigated one of the nine days that she was present for duty. She would like the LOD documents relooked as she lost her child sometime during annual training while performing military duties during her third trimester. She feels the investigation was not properly performed. The LOD was not approved; therefore she is not able to get the required treatment for her mental health as a result of the trauma she endured. 3. The applicant enlisted in the Army National Guard (ARNG) on 27 September 2010. She is a current member of the ARNG. 4. A DA Form 2173 shows the applicant was admitted to a hospital on 19 July 2015 after complaining of cramping. She was riding in the back of a Light Medium Tactical Vehicle (LMTV) that suddenly stopped causing her to slide forward hitting her knee into her stomach. Item 10 (Nature and Extent of Injury/Disease/Resulting in Death) of the form contains the entry "656.41 Intrauter death-deliver Unknown." The form also shows a formal LOD investigation was required, and that the injury was considered to have been incurred in LOD. 5. A Case Consult from the Office of the Armed Forces Medical Examiner, dated 15 August 2017, states: a. Materials Reviewed: Reviewed the medical records of (the applicant) to include a report of the fetopsy performed on her stillborn infant. b. Synopsis: By report, on 19 July 2015 at approximately 9:40 a.m., the applicant, who was pregnant at the time (29 weeks 4 days estimated gestational age per admission obstetrical history and physical), was riding in a military vehicle. The vehicle reportedly made an abrupt stop, causing her knees to press into her abdomen. She was taken to a hospital where she was experiencing premature contractions and intrauterine fetal demise was detected by ultrasound. She was then transferred to another medical center for further care where during intake, she stated that she had felt fetal movement the day prior. Per the medical records provided, her last prenatal visit prior to this incident was 24 June 2015 at which fetal heart tones were detected by Doppler ultrasound. c. At the time of Cesarean section, the operative findings reported black amniotic fluid and an extremely edematous fetus with severe scalp edema, skin sloughing, and a tortuous and constricted umbilical cord. It is unclear at what time the delivery occurred, but the operative note for the procedure was created at 12:22 a.m. on 20 July 2015 (indicating an approximate 15-hour period of retention from incident until delivery). The placenta was examined as a surgical specimen and reportedly demonstrated degenerative changes consistent with intrauterine fetal demise. A fetopsy was performed and exhibited a small for gestational age female infant with extensive skin sloughing and no congenital abnormalities. At 0.5 centimeters from the insertion of the umbilical cord to the umbilicus, there was a torsion (twisting) of the cord, with stenosis (narrowing) to a cord diameter of 0.1 centimeters versus the 1.0 centimeter diameter that the cord had more distally. Internal examination revealed pleural effusions and ascites. Histologic examination of the heart, lungs, thymus, liver, spleen, kidneys, stomach, intestines, and muscle reportedly revealed autolysis of all of the sampled tissue, described as severe in the gastrointestinal tract and kidneys and significant in the heart, lungs, and thymus. The microscopic appearance of the tissue of the liver and spleen was described as completely autolyzed, with loss of cellular details and microscopic landmarks. A karyotype was attempted on fetal skin, but there was failure of growth in any of the cultures initiated from the specimen. d. Due to the condition of the fetus upon delivery, the mother's report of the last fetal movement being the day prior, and histologic examinations reportedly showing degenerative changes of the placenta showing and autolysis of all of the sampled fetal tissue, it is felt that the fetal demise was likely greater than twenty-four hours but less than one week prior to delivery. The umbilical cord stricture is the most likely cause of the fetal demise. The etiology of cord stricture is unknown but has been hypothesized to be the result of a primary deficiency of Wharton's jelly (substance making up the umbilical cord), perhaps an exaggeration of the gradual loss that occurs at the fetal end of the cord. e. Opinion: Interpretation is limited by the slides and any photographs taken during the fetopsy being unavailable for our review. Based on the information available, it is the opinion of the Office of the Armed Forces Medical Examiner that the fetal death occurred prior to the incident in the military vehicle and was probably due to the umbilical torsion and stricture identified at the time of fetopsy. If further information becomes available, the case can be reevaluated. 6. A memorandum from the Office of the Staff Judge Advocate, Virginia National Guard, subject: Legal Review of the Report of Investigation Concerning the Line of Duty and Misconduct Status of (applicant), dated 20 September 2017, states the following: a. This LOD Investigation in its present form is legally insufficient in its findings. The confusion regarding the applicant's LOD status is the result of focusing only on the fetal death as the "injury" sustained by her. This incorrect focus began with the appointment letter. The applicant sustained a blow to her abdomen as the result of riding in the rear of the military vehicle. This apparently caused the abdominal pain for which she was taken to the medical center. While all available medical evidence supports the finding that fetal death was not caused by the vehicle impacting a pothole, it does seem reasonable that her abdominal pain, at that time, was caused by the impact. Stated differently, she would have likely experienced abdominal pain at some point due to the delivery of the deceased fetus, but the cause of her experiencing that pain on that day was the vehicle impacting the pothole. b. The applicant should be found in the LOD regarding her abdominal pain and for the purpose of payment of the medical bills diagnosing and treating that abdominal pain. The evidence shows that the fetal death was not caused by her impacting her abdomen with her knees or the military vehicle hitting the pothole. 7. The applicant provided 8 sworn statements from members of her unit pertaining to the circumstances surrounding her injury sustained on 19 July 2015. 8. During the processing of this case, an advisory opinion was obtained from the National Guard Bureau Special Actions Branch. It states: a. The applicant suffered an injury and miscarriage in July 2015. She requests a reinvestigation of the incident that caused the injury which she claims led to the miscarriage for an LOD determination. b. The applicant was about 28 weeks into her pregnancy when she was participating in annual training. On 19 July 2015, she rode in the rear of an LMTV coming back from training when the vehicle made a sudden stop that launched her forward from her seat, causing her to hit her stomach with her knees. The impact caused physical pain and she was taken to a military medical center, where it was discovered that there was an intrauterine fetal demise (IUFD/stillbirth). However, the military medical professional determined that it was not incurred in LOD according to the DA Form 2173. The applicant then requested to be moved a civilian hospital for a reevaluation and C-section. The civilian medical professional confirmed that the sonogram showed signs of fetal death much longer than from when the vehicle incident occurred. The following investigation did not find her injuries to be in LOD. However, a further legal review of the LOD investigation found it to be legally insufficient based on the definition of "injury" and the investigation only dealing with the IUFD. c. According to the Guide to Female Soldier Readiness published by the U.S. Army Public Health Command, pregnant Soldiers should avoid excessive vibrations from vehicles greater than 1-1/4 ton on unpaved surfaces. Additionally, it states that at 20 weeks of pregnancy, a (pregnant) Soldier is exempt from standing at parade rest or attention for longer than 15 minutes. A Soldier is exempt from participating in swimming qualifications, drown-proofing, field duty, and weapons training. The Soldier should not ride in, perform preventive maintenance checks and services on, or drive vehicles larger than LMTV. d. Based on the LOD investigation and opinions of medical professionals, the IUFD was not directly caused by the impact from the vehicle incident on the LMTV. However, the legal professional points out that the IUFD was not the injury suffered by the applicant, but rather the stomach pain. The abdominal pain was directly caused by the vehicle incident. Additionally, the unit failed to properly follow the guidelines of the U.S. Army Public Health Command in regard to pregnant Soldiers and over-sized military vehicles. e. For these reasons, it is the recommendation of this office that the applicant’s request be partially approved. Based on the available information and the opinions of both medical and legal professionals, the LOD investigation failed to fully examine the incident from all viewpoints, but rather only focused on the IUFD. While it is in agreement that the IUFD was not caused by the vehicle incident, the abdominal pain was directly caused by the vehicle incident when the applicant should not have been in an over-sized military vehicle. Therefore, this office recommends partial approval of the applicant’s request that her abdominal injury be considered for LOD so that she may receive proper treatment related to this injury, but the IUFD should not be reinvestigated for an LOD determination. 9. The NGB advisory opinion was provided to the applicant and given the opportunity to provide additional evidence or comments. No response was received. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found partial relief is warranted. 2. The Board concurred with the conclusion of the advisory official that, while the evidence does not support reinvestigating the IUFD, the evidence does support a finding of in the line of duty – not due to own misconduct for the abdominal pain she incurred as a result of the vehicle incident in 2015. The Board determined the record should be corrected to show this finding. 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 and Army National Guard records of the individual concerned be corrected by showing abdominal pain incurred as a result of a vehicle incident on 19 July 2015 was found to have been incurred in the line of duty – not due to own misconduct. 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 in excess of that 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, 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 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. The Army LOD Program is a commander’s program which essentially protects the interest of both the Soldier and the U.S. Government where service is interrupted by injury, illness, disease, or death. LOD investigations determine duty status at the time of incident and whether misconduct was involved and, if so, to what degree. Additionally, LOD investigations may be required to determine an existed prior to service condition, and, if so, determine service aggravation. b. An LOD investigation will be conducted for all Soldiers, regardless of Component, if the Soldier experiences a loss of duty time for a period of more than 24 hours and: (1) The injury, illness, or disease is of lasting significance (to be determined by a physician, physician assistant, or nurse practitioner). (2) There is a likelihood that the injury, illness, or disease will result in a permanent disability. (3) If a Reserve Component Soldier requires follow-on care for an injury, illness, or disease incurred during a period of active duty. c. A formal LOD investigation is a detailed investigation that normally begins with a DA Form 2173 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 LOD and Misconduct Status) and appends appropriate statements and other documentation to support the determination, which is submitted to the General Court Martial Convening Authority for approval. 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. 3. Army Regulation 15-185 (ABCMR) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant’s request for the correction of a military record. Paragraph 2-11 states applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 4. Section 1556 of Title 10, U.S. Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by 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 ABCMR applicants (and/or their counsel) prior to adjudication. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230002403 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1