NGB LOD FOIA request

Guardguy11

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Got my initial response letter to my freedom of information act. They say it will take approximately 2 years to complete…. Good grief. Well at some point in 2023, I promise I will analyze the data to see if my assumptions about the corrupt behavior of NGB/DN2DP (medical standards branch) is warranted. If they truly get me the data I requested, I believe I will be able to make a report that will have my senator beat down that door over at NGB. Here are the questions I asked (I made several requests over a couple weeks and they just grouped them together):


1. How many Line of Duty (LOD) determinations were made in year 2020 by the National Guard Bureau (NGB)/DN2DP and how many were found not in the LOD (Portal Request #210321), (This was my first request before I decided to increase the scope to 5 years)

2. How many appeals for denial of an in-LOD determination did NGB receive from 2016 through 2020; to include how many appeals resulted in a change of determination (Portal Request #210421),

3. How many LOD determination appeals were submitted to NGB from 2016 through 2020; to include how many appeals resulted in a change of determination (Portal Request #210411),

4. How many LOD forms received by NGB were adjudicated or determined not be service aggravated, existed prior to service, or both from 2016 through 2020 (Portal Request #210431),

5. How many administrative LOD determinations were made by the NGB not counting formal investigations and how many LODs were listed as existed prior to service and/or not service aggravated between 2016 through 2020 (Portal Request #214911)

6. What was the average processing time for administrative LOD determinations received by NGB from 2016 through 2020 (Portal Request #214921).
Items 1 through 4 were received on April 14, 2021 and items 5 and 6 were received by NGB on May 1, 2021. Because these items are similar in nature, they have been aggregated into one request, which has been assigned
 
I am open to hearing your comments and thoughts on this. I will refer back to this post in two years…. When I start working on the data analysis and conclusion report.
 
If I had known it was going to take two years to complete I would have asked for data from 2021 as well…
 
I suppose for the sake of conversation, it is worth stating my “hunch” about DN2DP.

My theory about DN2DP is that they are denying far more LODs than the DODI / AR / AFI supports. They are doing this for several reasons. Saving money, saving paperwork, and saving man power. All at the expense of the service member. They have a God like power and responsibility and at some point, the office, or perhaps individuals in that office, became jaded to the onslaught of LODs. The war on terror was so much, that this office was not able to properly analyze each case the way it needed and as such, thousands of Guardsmen have been thrown to the wolves.

We will see if the data supports any of this conjecture. If this forum is to be taken as any form of sample size, I believe it will.
 
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If anyone has had a LOD denied that they felt was incorrect AND are willing to give me details about your situation, I would love to add it to my source materials for my paper. Feel free to DM me if you don't feel comfortable posting it in the general forum.
 
@Hawaii5-0, I would love to get your opinion on this.
 
@Hawaii5-0, I would love to get your opinion on this.
Sorry i was off the site for a few months.

Ohhhh I have many opinions on this matter. NGB is undermanned at all times and there seems to be a thought that they get props for being 50% manned. To me that is not working smarter...just harder.

Most LOD denials (99%) are not well researched. Their denials contain generic wording. They don't include specifics about how they determine that a disease process isn't ILOD. Oddly, they often feel the need to overturn the AD MDG LODs that contain the AD MDG,CC, JAG, General officer signatures. One would logically think that an LOD that went through the AD routing and was determined to be ILOD would be sufficient. But, alas we must remember that ARC forces are second class citizens. In this particular instance, the AD is validating us as a true member and the ARC LOD peeps almost always overrule that decision...especially in the NGB world.

Because they have the power they can get the 2 star to sign off on rebuttals pretty quick. Internally, they do no wrong. BUT if any of these go to a BCMR or to federal court...they would be overturned that same 99% of the time. I have the verbiage in my cheat sheet in the references area...i'll try to find it and post again.
 
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While this language is geared toward the PEB....and you need a valid LOD to enter the PEB....this would stand in court. The ARC LODs are NOT taking this into account. Sadly spending most of my career in operations/staff work...I have been naïve by thinking that all in the uniform are SME's for their particular job. I have now found that most don't read the higher level guidance that instruct the services to carry out their duties.

Simply put...the ARC LOD denials DO NOT overcome clear and unmistakable evidence to overturn ILOD determinations.

DoDI 1332.38:
"E3.P4.5.2.2. After Entry
E3.P4.5.2.2.1. Presumption of Sound Condition for members ordered on active duty for more than thirty days. This presumption applies in all cases in which a member, on active duty for more than 30 days is found to have a disability and the disability was not noted at the time of the member’s entrance on active duty. This presumption is overcome if clear and unmistakable evidence demonstrates that the disability existed before the
Service member’s entrance on active duty and was not aggravated by military service. Absent such clear and unmistakable evidence, the PEB will conclude that the disability was incurred or aggravated during military service."
 
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Meant to write..."ARC LOD denials DO NOT GENERALLY overcome clear and unmistakable evidence to overturn ILOD determinations.
 
So, I was reading through last month’s revision to AFI 36-2910, and there’s a change that is relevant to this conversation.

For informal LODs in the Guard, the Wing Commander is now the appointing/approving authority. NGB no longer has any say in the LOD determination (unless you wanted to appeal the Wing CCs decision). Formal LODs still go to NGB.
36D27DFC-7C23-4078-A7D9-47681E64F8F0.jpeg
 
So, I was reading through last month’s revision to AFI 36-2910, and there’s a change that is relevant to this conversation.

For informal LODs in the Guard, the Wing Commander is now the appointing/approving authority. NGB no longer has any say in the LOD determination (unless you wanted to appeal the Wing CCs decision). Formal LODs still go to NGB.
View attachment 6966
What's the difference between an informal LOD and a formal one? Is there any benefit to getting one over the other?
 
What's the difference between an informal LOD and a formal one? Is there any benefit to getting one over the other?
I’m not 100% sure, to be honest. My guess is that a formal LOD determination is required if there’s possible misconduct involved in the injury.
 
I’m not 100% sure, to be honest. My guess is that a formal LOD determination is required if there’s possible misconduct involved in the injury.
Informal LOD can be used when there is no intentional misconduct or gross negligence suspected. It can only result in a finding of ILD or EPTS.
 
If anyone has had a LOD denied that they felt was incorrect AND are willing to give me details about your situation, I would love to add it to my source materials for my paper. Feel free to DM me if you don't feel comfortable posting it in the general forum.
I have an excellent case for you. I want to state right now I am not blaming anyone for this issue nor am I trying to disrespect anyone who was involved in the process of my injury.
Most can't believe the issues I've come across because I broke the bone in my arch on 502(f)(2)(a) title 32 orders (federal - COVID). After I broke my foot on June 26th, 2021, I went to the VA ER in Minneapolis on June 28th because the pain was unbearable to walk on. I had x-rays taken, but the doctor didn't see any fractures. She gave me a walking boot to help with comfort and it was labeled as a bad sprain. I went to the VA ER again on July 14th because the pain was getting worse. The VA did a CT scan and noticed I have an extra bone in my arch called a Navicular bone. The CT scan didn't show any cracks or fractures so I left with a "sprain" again. They did refer me to podiatry. I had a MRI on July 17th and received the results on July 23rd. I started annual training (AT) on July 19th through July 30th, but with limited duty due to the pain and walking boot. I am the master driver for the company, as of February 2021, which I found out while I was on the 502f orders. I told my COC the results show the Navicular bone had a crack which separated that bone from my arch and the tendon was holding it so whenever I walked, it potentially moved when I put pressure on it.

I volunteered when the governor of MN gave the executive 20-64 order to activate the National Guard for Full-Time National Guard Duty - Operational Support (FTNGD-OS). I started state active duty on September 21st, 2020, through December 14th, 2020, and then we transitioned to 502f orders on December 15th, 2020.

Per the OPORDs for this COVID mission, Soldiers are to medically in-process AND out-process. NOBOBY was medically out-processed after the orders ended. I asked if someone needs to complete a CCIR for my foot and was told the unit is supposed to take care of injuries and LODs. I saw the podiatrist at the MPLS VA on August 6th, 2021. He recommended surgery so this issue doesn't happen again plus this was the fastest way to fix this injury so I could return to duty. I didn't get the proper form that needed to be filled out before August drill (14th-15th) so this affected possible INCAP pay. I received the required form signed by my doctor on August 20th. Since I was required to drill, INCAP pay turned to a tier 2, which pays me either what I could make or a portion of what I could make. My employer (MAYO) sent a letter stating they can't predict what I make because of the numerous shift differentials plus continuous OT the hospital staff work.

I contacted IG because the process was taking way too long, it was already the beginning of October. The reason I contacted IG was to fix this process for future issues that Soldiers may have. While on these orders, if a Soldier was on FTNGD over 30+ days, he or she received certain benefits that title 10 do. After 90 days, Soldiers received every benefit that AD Soldiers on title 10 receive. The LOD process follows AR 600-8-4 (per the COVID posted OPORDs). INCAP pay can't be paid until there is an approved LOD. My LOD wasn't approved until October 4th, 2021. I have been without a steady income since August 1st, besides my current VA disability and the August drill check. I have contacted numerous officers, NCOs, CVSOs, and retired military Soldiers to ask about the process of federal orders for title 32 502f orders. Majority stated I should have been kept on the same orders because the injury was major which put me out from military duty and my civilian job. I fought 3 times for orders to be extended or medical orders. IG was told by JAG that the reference I stated from DoDI Policy 1241.01 does not pertain to 502f orders because we are not "active duty". I have 3 or 4 references that contradict the term active duty.

1) The term ‘‘active duty’’ means full-time duty in the active military service of the United States. Such term includes full-time training duty, annual training duty, and attendance, while in the active military service, at a school designated as a service school by law or by the Secretary of the military department concerned. Such term does not include full-time National Guard duty.

(2) The term ‘‘active duty for a period of more than 30 days’’ means active duty under a call or order that does not specify a period of 30 days or less.

(3) The term ‘‘active service’’ means service on active duty or full-time National Guard duty.

Does anyone else see how confusing this is? Does not include FTNGD, but means active duty under a call......"active service" means "active duty"......?

I've attached numerous documents that pertain to terminology the military likes to use. The 1241.01 policy does state if a Soldier incurs an in-LOD injury, he or she will remain on active duty until the Soldier is referred to the the IDES or returns to duty. These are not RCMC orders, they would be the orders I was on and should have been extended due to a broken foot. When I quoted references, IG inquired with JAG and this is what I was told. The AR 135-381 states a Soldier "may" remain on active duty orders for an injury/LOD. It says "may" not "will" or "must"......who determines this??? Every Soldier that was on these orders over 30 days received family separation allowance, SCRA, Post 9/11 GI bill, veteran home loan benefits, Tricare Prime Remote, TAMP after orders, and if injured in-LOD follow 10 USC code 1074a reference (e). "
``A member of a uniformed service described in paragraph (1)(B) or (2)(B) of section 1074a(a) of this title may be ordered to active duty, and a member of a uniformed service described in paragraph (1)(A) or (2)(A) of such section may be continued on active duty, for a period of more than 30 days while the member is being treated for (or recovering from) an injury, illness, or disease incurred or aggravated in the line of duty as described in any of such paragraphs.''.

(2) The table of sections at the beginning of such chapter is amended by adding at the end the following:

(b) Medical and Dental Care for Members.--Subsection (e) of section 1074a of such title is amended to read as follows:

``(e)(1) A member of a uniformed service on active duty for health care or recuperation reasons, as described in paragraph (2), is entitled to medical and dental care on the same basis and to the same extent as members covered by section 1074(a) of this title while the member remains on active duty.

``(2) <<NOTE: Applicability.>> Paragraph (1) applies to a member described in paragraph (1) or (2) of subsection (a) who, while being treated for (or recovering from) an injury, illness, or disease incurred or aggravated in the line of duty, is continued on active duty pursuant to a modification or extension of orders, or is ordered to active duty, so as to result in active duty for a period of more than 30 days.'' I don't know how much clearer I can make this? Can someone please tell me if I am missing something here? I was on orders for 10 months and received a DD214. I broke a foot and was left to try to figure everything out on my own. It is December 5th and I still have no income. My savings has been depleted and I have been putting bills on a credit card. I asked for financial help, but all I qualified for was $150 for food, paid 1 month of my car insurance, and paid my utilities for 2 months so far. What about my car payment, loan payments, credit card payments, internet, phones, car repair bills, medical bills, etc.... Also, my medical bill of $1100 can't be helped with, but if my daughter has medical or dental bills they would pay those??

My INCAP paperwork couldn't be submitted until the LOD was approved which was October 4th. I didn't sign the forms until October 20th because I was fighting to remain on orders. After I signed it, the commander signed the same day, and someone else signed it November 10th and finally it was approved November 24th, but now it went to the NGB. I've asked how long is this going to take? I've asked for the number to NGB and get asked why? I have no problem calling to find out what the status is because I can guarantee you if a LTC, COL, CSM, or other higher rank went 5-6 months without pay, it would be a no go and fixed right away.

November 10th I received an email from OSS asking if they could call my employer to verify my income. I gave them every single paycheck stub from the military and my civilian job. I allowed it of course. I get an email back on November 18th asking for 3 years of W2s?! Apparently my income had too many discrepancies. Of course it did because 2018 I was in RN school and graduated that winter. I didn't work much OT that year. 2019 I made $47,000+ because I consistently work OT. 2020 I was on orders for a total of 138 days, about 20 weeks total. I made about $32,000+ from January to September 2020. Between all of the orders, 4 different calls to duty, of course my income is going to be drastically different. Finally on November 22nd I received another email but they took an average of 2019 and 2020 and divided it by 24 months. I fought that case because I missed work for a total of 20 weeks. On November 24th, they accepted what I wrote and divided the income from 2019 and 2020 by 20 months, not 24. So because I had to attend drill in August, I only receive tier 2 INCAP, but for the rest of the months I get tier 1 which is full military pay and benefits.

Trust me, there is alot more to this situation, but I'm tired of thinking about it. If anyone has questions, feel free to ask. I have read so many ARs, DA PAMs, executive orders, DoDI policies, proclamations, you name it. I have a letter ready for the MN state senator because no Soldier should go nearly 5-6 months without an income. I have completed 2 overseas tours, 5 state active duties, numerous times I've volunteered for the companies I was with and don't deserve to be "neglected" like this. What happened to Soldier care? I'm waiting to get paid to this day.......

Sorry, little frustrated about this whole ordeal. If anyone knows someone who will fix this issue country wide, please give them my contact information.

SSG Lewandowski
 

Attachments

  • 12MAR2021 NG pandemic response.pdf
    2.1 MB · Views: 2
  • AR 135-200 Full time National Guard FTNGD-OS.pdf
    24.7 MB · Views: 3
  • AR 600-8-4 LOD investigations and determinations.pdf
    29.3 MB · Views: 4
  • DoDI 1241.01 dated 19APR2016.pdf
    4.3 MB · Views: 3
  • 502f Benefits Chart NGBJA 2 May 18v2 (1).pdf
    157.9 KB · Views: 1
  • 502f benefits from online dated 13APR2020 (1).pdf
    600.8 KB · Views: 1
I have an excellent case for you. I want to state right now I am not blaming anyone for this issue nor am I trying to disrespect anyone who was involved in the process of my injury.
Most can't believe the issues I've come across because I broke the bone in my arch on 502(f)(2)(a) title 32 orders (federal - COVID). After I broke my foot on June 26th, 2021, I went to the VA ER in Minneapolis on June 28th because the pain was unbearable to walk on. I had x-rays taken, but the doctor didn't see any fractures. She gave me a walking boot to help with comfort and it was labeled as a bad sprain. I went to the VA ER again on July 14th because the pain was getting worse. The VA did a CT scan and noticed I have an extra bone in my arch called a Navicular bone. The CT scan didn't show any cracks or fractures so I left with a "sprain" again. They did refer me to podiatry. I had a MRI on July 17th and received the results on July 23rd. I started annual training (AT) on July 19th through July 30th, but with limited duty due to the pain and walking boot. I am the master driver for the company, as of February 2021, which I found out while I was on the 502f orders. I told my COC the results show the Navicular bone had a crack which separated that bone from my arch and the tendon was holding it so whenever I walked, it potentially moved when I put pressure on it.

I volunteered when the governor of MN gave the executive 20-64 order to activate the National Guard for Full-Time National Guard Duty - Operational Support (FTNGD-OS). I started state active duty on September 21st, 2020, through December 14th, 2020, and then we transitioned to 502f orders on December 15th, 2020.

Per the OPORDs for this COVID mission, Soldiers are to medically in-process AND out-process. NOBOBY was medically out-processed after the orders ended. I asked if someone needs to complete a CCIR for my foot and was told the unit is supposed to take care of injuries and LODs. I saw the podiatrist at the MPLS VA on August 6th, 2021. He recommended surgery so this issue doesn't happen again plus this was the fastest way to fix this injury so I could return to duty. I didn't get the proper form that needed to be filled out before August drill (14th-15th) so this affected possible INCAP pay. I received the required form signed by my doctor on August 20th. Since I was required to drill, INCAP pay turned to a tier 2, which pays me either what I could make or a portion of what I could make. My employer (MAYO) sent a letter stating they can't predict what I make because of the numerous shift differentials plus continuous OT the hospital staff work.

I contacted IG because the process was taking way too long, it was already the beginning of October. The reason I contacted IG was to fix this process for future issues that Soldiers may have. While on these orders, if a Soldier was on FTNGD over 30+ days, he or she received certain benefits that title 10 do. After 90 days, Soldiers received every benefit that AD Soldiers on title 10 receive. The LOD process follows AR 600-8-4 (per the COVID posted OPORDs). INCAP pay can't be paid until there is an approved LOD. My LOD wasn't approved until October 4th, 2021. I have been without a steady income since August 1st, besides my current VA disability and the August drill check. I have contacted numerous officers, NCOs, CVSOs, and retired military Soldiers to ask about the process of federal orders for title 32 502f orders. Majority stated I should have been kept on the same orders because the injury was major which put me out from military duty and my civilian job. I fought 3 times for orders to be extended or medical orders. IG was told by JAG that the reference I stated from DoDI Policy 1241.01 does not pertain to 502f orders because we are not "active duty". I have 3 or 4 references that contradict the term active duty.

1) The term ‘‘active duty’’ means full-time duty in the active military service of the United States. Such term includes full-time training duty, annual training duty, and attendance, while in the active military service, at a school designated as a service school by law or by the Secretary of the military department concerned. Such term does not include full-time National Guard duty.

(2) The term ‘‘active duty for a period of more than 30 days’’ means active duty under a call or order that does not specify a period of 30 days or less.

(3) The term ‘‘active service’’ means service on active duty or full-time National Guard duty.

Does anyone else see how confusing this is? Does not include FTNGD, but means active duty under a call......"active service" means "active duty"......?

I've attached numerous documents that pertain to terminology the military likes to use. The 1241.01 policy does state if a Soldier incurs an in-LOD injury, he or she will remain on active duty until the Soldier is referred to the the IDES or returns to duty. These are not RCMC orders, they would be the orders I was on and should have been extended due to a broken foot. When I quoted references, IG inquired with JAG and this is what I was told. The AR 135-381 states a Soldier "may" remain on active duty orders for an injury/LOD. It says "may" not "will" or "must"......who determines this??? Every Soldier that was on these orders over 30 days received family separation allowance, SCRA, Post 9/11 GI bill, veteran home loan benefits, Tricare Prime Remote, TAMP after orders, and if injured in-LOD follow 10 USC code 1074a reference (e). "
``A member of a uniformed service described in paragraph (1)(B) or (2)(B) of section 1074a(a) of this title may be ordered to active duty, and a member of a uniformed service described in paragraph (1)(A) or (2)(A) of such section may be continued on active duty, for a period of more than 30 days while the member is being treated for (or recovering from) an injury, illness, or disease incurred or aggravated in the line of duty as described in any of such paragraphs.''.

(2) The table of sections at the beginning of such chapter is amended by adding at the end the following:

(b) Medical and Dental Care for Members.--Subsection (e) of section 1074a of such title is amended to read as follows:

``(e)(1) A member of a uniformed service on active duty for health care or recuperation reasons, as described in paragraph (2), is entitled to medical and dental care on the same basis and to the same extent as members covered by section 1074(a) of this title while the member remains on active duty.

``(2) <<NOTE: Applicability.>> Paragraph (1) applies to a member described in paragraph (1) or (2) of subsection (a) who, while being treated for (or recovering from) an injury, illness, or disease incurred or aggravated in the line of duty, is continued on active duty pursuant to a modification or extension of orders, or is ordered to active duty, so as to result in active duty for a period of more than 30 days.'' I don't know how much clearer I can make this? Can someone please tell me if I am missing something here? I was on orders for 10 months and received a DD214. I broke a foot and was left to try to figure everything out on my own. It is December 5th and I still have no income. My savings has been depleted and I have been putting bills on a credit card. I asked for financial help, but all I qualified for was $150 for food, paid 1 month of my car insurance, and paid my utilities for 2 months so far. What about my car payment, loan payments, credit card payments, internet, phones, car repair bills, medical bills, etc.... Also, my medical bill of $1100 can't be helped with, but if my daughter has medical or dental bills they would pay those??

My INCAP paperwork couldn't be submitted until the LOD was approved which was October 4th. I didn't sign the forms until October 20th because I was fighting to remain on orders. After I signed it, the commander signed the same day, and someone else signed it November 10th and finally it was approved November 24th, but now it went to the NGB. I've asked how long is this going to take? I've asked for the number to NGB and get asked why? I have no problem calling to find out what the status is because I can guarantee you if a LTC, COL, CSM, or other higher rank went 5-6 months without pay, it would be a no go and fixed right away.

November 10th I received an email from OSS asking if they could call my employer to verify my income. I gave them every single paycheck stub from the military and my civilian job. I allowed it of course. I get an email back on November 18th asking for 3 years of W2s?! Apparently my income had too many discrepancies. Of course it did because 2018 I was in RN school and graduated that winter. I didn't work much OT that year. 2019 I made $47,000+ because I consistently work OT. 2020 I was on orders for a total of 138 days, about 20 weeks total. I made about $32,000+ from January to September 2020. Between all of the orders, 4 different calls to duty, of course my income is going to be drastically different. Finally on November 22nd I received another email but they took an average of 2019 and 2020 and divided it by 24 months. I fought that case because I missed work for a total of 20 weeks. On November 24th, they accepted what I wrote and divided the income from 2019 and 2020 by 20 months, not 24. So because I had to attend drill in August, I only receive tier 2 INCAP, but for the rest of the months I get tier 1 which is full military pay and benefits.

Trust me, there is alot more to this situation, but I'm tired of thinking about it. If anyone has questions, feel free to ask. I have read so many ARs, DA PAMs, executive orders, DoDI policies, proclamations, you name it. I have a letter ready for the MN state senator because no Soldier should go nearly 5-6 months without an income. I have completed 2 overseas tours, 5 state active duties, numerous times I've volunteered for the companies I was with and don't deserve to be "neglected" like this. What happened to Soldier care? I'm waiting to get paid to this day.......

Sorry, little frustrated about this whole ordeal. If anyone knows someone who will fix this issue country wide, please give them my contact information.

SSG Lewandowski
I really appreciate your detailed response. As soon as I hear back from NGB on my FOIA requests, I will circle the wagons to figure out the best way forward.
 
Think on this one…Husband was sent for riot control in our state (state active duty). Developed PTSD, unknowingly, went into manic episode and ended up with Bipolar diagnosis. Informed Guard, sent to BH. Diagnosed with PTSD. (Has LOD). Told to file for workers comp, due to severe anxiety and depression. Claim denied by WC due to them not covering “anything psychological” unless it is tied to a physical injury. Discharged from Guard due to Bipolar. Tricare lost, so all treatments are out of pocket. We are being told LOD doesn’t apply since he was on state active duty orders, that workers comp is responsible as he was a state employee. BUT THEY DONT COVER IT…Talk about being thrown out to the street…

Anyone have any advice here??
@Jason Perry ?

PS: IG stated only option was to sue our state for damages due to the law that prevents PTSD coverage. That sounds like a big task, but one that I am willing to see through for my husband. He already feels defeated, and forgotten about.
 
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