AR20150009562

BOARD DATE: 16 June 2016

DOCKET NUMBER: AR20150009562

BOARD VOTE:

_________ _______ ________ GRANT FULL RELIEF

________ ________ ________ GRANT PARTIAL RELIEF

________ ________ ________ GRANT FORMAL HEARING

__x______ _x_______ _x____ DENY APPLICATION

2Enclosures
1. Board Determination/Recommendation
2. Evidence and Consideration

BOARD DATE: 16 June 2016

DOCKET NUMBER: AR20150009562

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 for correction of the records of the individual concerned.

___________x______________
CHAIRPERSON

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.

BOARD DATE: 16 June 2016

DOCKET NUMBER: AR20150009562

THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1. Application for correction of military records (with supporting documents provided, if any).

2. Military Personnel Records and advisory opinions (if any).

THE APPLICANT’S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests correction of his 2011 line of duty (LOD) determination to state his injury was military related.

2. The applicant states his 2011 LOD was lost or unavailable at the time of his discharge. His LOD was discovered after his discharge and it states that his injuries were not military related. Due to the facts he is presenting he is sure this is an error. He hopes this request will resolve this issue and his LOD will be considered for what it is. He needs his insurance. He has insurance coverage under the Department of Veterans Affairs (VA), but he has to drive over 30 to 69miles to see a doctor.

3. The applicant provides copies of a Legal Review of LOD Investigation (LODI) memorandum, DA Form 2173 (Statement of Medical Examination and Duty Status), LOD memorandum, and 20pages of VA Radiology Reports and Progress Notes.

CONSIDERATION OF EVIDENCE:

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 Army 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. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of the case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations.

2. The applicant enlisted in the Alabama Army National Guard (ALARNG) on 31May 1990. He held military occupational specialties 31K (Wire Installer) and 88M (Motor Transport Operator).

3. His records contain:

* Statement of Medical Examination and Duty Status showing his injury of 26May 1999 for allergic reaction was approved for In the LOD (ILOD)
* LOD Determination memorandum, dated 7February 2001, in which his command was notified of the approval of his ILOD for allergic reaction which incurred on 26May 1999

4. He entered active duty on 7January 2010 in support of Operation Iraqi Freedom. He served in Iraq from 10March 2010 through 30December 2010.

5. His records contain and he provides copies of:

a. A Legal Review of LODI memorandum, dated 14January 2011, in which the Chief, Administrative Law, found the applicant’s LODI to be legally sufficient in accordance with Army Regulation 600-8-4 (Personnel-General LOD Policy, Procedures, and Investigations), paragraph3-4a.

b. A DA Form 2173, dated 25 February 2011, showing while he was stationed at Fort Benning, GA, he received medical treatment for low back pain and was diagnosed with lumbago. The form shows that based upon a review of applicable medical documents there was no evidence to suggest that alcohol, drug usage, or misconduct contributed to the listed injury. Therefore, the presumption of ILOD applied.

c. An LOD memorandum, dated 16June 2011, showing his LOD was reviewed for completeness.

6. He was released from active duty on 29 August 2011 and was transferred to State ARNG control.

7. He retired from the ALARNG on 27March 2014.
8. In an Inquiry Regarding Medical Evaluation Board (MEB) Status memorandum, dated 6November 2014, a Health Services Officer, ALARNG, advised the applicant of the denial for a duty-related MEB. He also stated the applicant had a presumptive LOD that was completed at Fort Benning, GA, in June2011 for Lumbago; no other diagnosis was provided. Per VA medical documentation, dated 23October 2014, his back x-rays were completely normal; the record noted “veterans did state that he did injure his back at work in 2013.” In 2014, he was diagnosed with arthritis, degenerative disc disease, and spinal stenosis. Based on the evidence provided to him from the VA, a civilian work injury occurred after his deployment that caused his incapacitation; his request to be reinstated in the ALARNG for medical board purposes was consequently denied.

9. He also provides copies of:

* Fifteen VA Radiology Reports, dated between 28September 2011 through 25July 2014, showing he received x-rays of his knees, right elbow, hips, and spine.
* Five Progress Notes, dated between 27June 2014 through 9March 2015, showing he was diagnosed and received medical treatment for peripheral nerves and back conditions.

REFERENCES:

Army Regulation 600-8-4, in effect at time, prescribed procedures for investigating the circumstances of disease, injury, or death of a Soldier and standards and considerations used in determining LOD status. The regulation stated in

a. Paragraph 34a the final determination of an informal LOD investigation could result in a determination of “ILOD” only, except for those cases described in paragraph 410.

b. Paragraph 3-6a The LOD appointing authority must review all informal LOD investigations to determine the proper action to be taken. If the DAForm2173 indicated “ILOD” and “no formal investigation required,” it would be reviewed to determine if sufficient evidence existed to support the determination. After the informal LOD investigation had been reviewed, the approving authority would take action. Notification of completed actions would be accomplished per paragraph 312.

DISCUSSION:

1. The evidence of record shows the applicant’s approved LOD for his lumbago was reviewed for completeness in June 2011. His DA Form 2173 clearly does not indicate his injury was military related. The form shows that there was no evidence to suggest that alcohol, drug usage, or misconduct contributed to the listed injury; therefore, the presumption of ILOD applied.

2. It appears he believes that because his 2011 LOD does not state his injury was military related that it was not approved or correct. He may also believe that if his ILOD states his injury was military related he would qualify for a duty-related MEB. However, there is insufficient evidence showing his lumbago diagnosis while deployed and his current incapacitation would qualify him for a fitness determination and possible disability rating.

3. He has been advised by the ALARNG that based on VA medical documentation showing he stated that he injured his back at work in 2013; he was diagnosed with arthritis, degenerative disc disease, and spinal stenosis in 2014; and a civilian work injury occurred after his deployment that caused his incapacitation, his request for reinstatement in the ALARNG for medical board purposes was denied.

4. The evidence shows this LOD investigation and determination was accomplished in compliance with applicable regulations then in effect with no indication of procedural errors which would have jeopardized his rights. He provided no evidence showing otherwise.

5. The ABCMR does not correct records solely for the purpose of establishing entitlement to disposition and/or separation through medical channels.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings AR20150000953

Enclosure 1

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

ABCMR Record of Proceedings (cont) AR20150009562

2

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 1

ABCMR Record of Proceedings (cont) AR20150009562

4

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 2