I am currently in the PEB process. However I do not have a signed LOD for my back injury but I do have the medical paperwork. What are my options or chances in the process without LOD paperwork?
No LOD Paperwork
- Thread starter HDSoftail
- Start date
Hey brother, I hope that you are feeling good. Let me tell you something, I am in the exact sme posi tionacc that you are right now. I had an accident and my back was damaged by it. This was 8 months ago and I still don't have an LOD. I honestly don't know how this can affect you rating or PEB, but what I can tell you is that if you go to the Freedom act of information (FOIA) they will track and get you the LOd. So good luck and keep up us posted.
My accident happened while on active duty in support of OEF around Sep 2003. Will the FOIA have this information?
My accident was on active duty. In fact it was in a deployment training. Answering your question, if somebody can find your LOD paper is F.O.I.A. I was attached to a special forces unit when this happened, therefore according to my unit there was nothing they could do. I decided to go visit foia and they did in 2 weeks what I had been trying for 5 months. Yes, go to foia and they will get you that document. Keep us posted. Take care and it is a pleasure to be able to help you.
There are two options for initiating the LOD. Your MTF or Comoany Commander. If MTF has patient records consistent with claim they SHOULD intitiate the 2173. My experience is they will not unless you ask them to.
The comaander can also initiate the LOD on a 2173. Either way both parties have a section to complete on the form.
It can literally be done in 10 minutes.
So, if you have medical documentation supporting your injury, the MTF can use that to complete their portion.
The reg clearly states that it is Line of Duty YES until proven otherwise.
Hope that helps.
1–12. Unit commanders
The comaander can also initiate the LOD on a 2173. Either way both parties have a section to complete on the form.
It can literally be done in 10 minutes.
So, if you have medical documentation supporting your injury, the MTF can use that to complete their portion.
The reg clearly states that it is Line of Duty YES until proven otherwise.
Hope that helps.
1–12. Unit commanders
The unit commander will ensure DA Form 2173 (Statement of Medical Examination and Duty Status) is completed
promptly and forwarded through channels to the appointing authority.
promptly and forwarded through channels to the appointing authority.
1–13. Medical Treatment Facility commanders
The MTF commander or an authorized representative (attending physician or patient administrator) will ensure that
section1 of DA Form 2173 is promptly completed when a condition outlined in paragraph 2–3 exists. The MTF
commander makes determinations that involve—
section1 of DA Form 2173 is promptly completed when a condition outlined in paragraph 2–3 exists. The MTF
commander makes determinations that involve—
a.
Total physical incapacitation of a soldier for more than 24 hours because of the abuse of alcohol or other drugs
(para 4–10a).
(para 4–10a).
b.
Conditions that existed prior to service (EPTS) and diseases not related to misconduct or negligence.
1–14. State Adjutants General
The state Adjutants General (AG) will function as the reviewing authority for ARNG.
1–15. Casualty area commander
Each CAC will ensure prompt completion of LD investigations.
Chapter 2
Line of Duty Determinations
Line of Duty Determinations
2–1. General
Line of duty determinations are essential for protecting the interest of both the individual concerned and the U.S.
Government where service is interrupted by injury, disease, or death. Soldiers who are on active duty (AD) for a period
of more than 30 days will not lose their entitlement to medical and dental care, even if the injury or disease is found to
have been incurred not in LD and/or because of the soldier’s intentional misconduct or willful negligence, Section
1074, Title 10, United States Code (10 USC 1074). A person who becomes a casualty because of his or her intentional
misconduct or willful negligence can never be said to be injured, diseased, or deceased in LD. Such a person stands to
lose substantial benefits as a consequence of his or her actions; therefore, it is critical that the decision to categorize
injury, disease, or death as not in LD only be made after following the deliberate, ordered procedures described in this
regulation.
Government where service is interrupted by injury, disease, or death. Soldiers who are on active duty (AD) for a period
of more than 30 days will not lose their entitlement to medical and dental care, even if the injury or disease is found to
have been incurred not in LD and/or because of the soldier’s intentional misconduct or willful negligence, Section
1074, Title 10, United States Code (10 USC 1074). A person who becomes a casualty because of his or her intentional
misconduct or willful negligence can never be said to be injured, diseased, or deceased in LD. Such a person stands to
lose substantial benefits as a consequence of his or her actions; therefore, it is critical that the decision to categorize
injury, disease, or death as not in LD only be made after following the deliberate, ordered procedures described in this
regulation.
2 AR 600–8–4 • 4 September 2008
2–2. Reasons for conducting line of duty investigations
The following are reasons for conducting LD investigations:
a. Extension of enlistment.
An enlisted soldier who is unable to perform duties for more than one day because of his
or her intemperate use of drugs or alcohol or because of disease or injury resulting from the soldier’s misconduct is
liable after returning to duty to serve for a period that, when added to the period that he or she served before the
absence from duty, amounts to the term for which he or she was enlisted or inducted (10 USC 972).
or her intemperate use of drugs or alcohol or because of disease or injury resulting from the soldier’s misconduct is
liable after returning to duty to serve for a period that, when added to the period that he or she served before the
absence from duty, amounts to the term for which he or she was enlisted or inducted (10 USC 972).
b. Longevity and retirement multiplier.
Eligibility for increases in pay because of longevity and the amount of
retirement pay to which a soldier may be entitled depends on the soldier’s cumulative years of creditable service. An
enlisted soldier who is unable to perform duties for more than one day because of his or her intemperate use of drugs
or alcohol or because of disease or injury resulting from misconduct is not entitled to include such periods in
computing creditable service in accordance with the Department of Defense Financial Management Regulation (DODFMR).
retirement pay to which a soldier may be entitled depends on the soldier’s cumulative years of creditable service. An
enlisted soldier who is unable to perform duties for more than one day because of his or her intemperate use of drugs
or alcohol or because of disease or injury resulting from misconduct is not entitled to include such periods in
computing creditable service in accordance with the Department of Defense Financial Management Regulation (DODFMR).
c. Forfeiture of pay.
Any soldier on AD who is absent from regular duties for a continuous period of more than one
day because of disease that is directly caused by and immediately following his or her intemperate use of drugs or
alcohol is not entitled to pay for the period of that absence. Pay is not forfeited for absence from duty caused by
injuries. Pay is not forfeited for disease not directly caused by and immediately following the intemperate use of drugs
and alcohol.
day because of disease that is directly caused by and immediately following his or her intemperate use of drugs or
alcohol is not entitled to pay for the period of that absence. Pay is not forfeited for absence from duty caused by
injuries. Pay is not forfeited for disease not directly caused by and immediately following the intemperate use of drugs
and alcohol.
d. Disability retirement and severance pay.
For soldiers who sustain permanent disabilities while on AD to be
eligible to receive certain retirement and severance pay benefits, they must meet requirements of the applicable statutes.
One of these requirements is that the disability must not have resulted from the soldier’s "intentional misconduct or
willful neglect" and must not have been "incurred during a period of unauthorized absence" (10 USC 1201, 1203,
1204, 1206, and 1207). Physical Evaluation Board determinations are made independently and are not controlled by
LD determinations. However, entitlement to disability compensation may depend on those facts that have been
officially recorded and are on file within the Department of the Army (DA). This includes reports and investigations
submitted in accordance with this regulation.
eligible to receive certain retirement and severance pay benefits, they must meet requirements of the applicable statutes.
One of these requirements is that the disability must not have resulted from the soldier’s "intentional misconduct or
willful neglect" and must not have been "incurred during a period of unauthorized absence" (10 USC 1201, 1203,
1204, 1206, and 1207). Physical Evaluation Board determinations are made independently and are not controlled by
LD determinations. However, entitlement to disability compensation may depend on those facts that have been
officially recorded and are on file within the Department of the Army (DA). This includes reports and investigations
submitted in accordance with this regulation.
e. Medical and dental care for soldiers on duty other than AD for a period of more than 30 days.
A soldier of the
National Guard or U.S. Army Reserve (USAR) is entitled to hospital benefits, pensions, and other compensation,
similar to that for soldiers of the Active Army for injury, illness, or disease incurred in LD, under the following
conditions prescribed by law (10 USC 1074a):
(1) while performing AD for a period of 30 days or less;
(2) while performing inactive duty training;
(3) while performing service on funeral honors duty under 10 USC 12503 or 32 USC 115;
(4) while traveling directly to or from the place at which that soldier is to perform or has performed—
National Guard or U.S. Army Reserve (USAR) is entitled to hospital benefits, pensions, and other compensation,
similar to that for soldiers of the Active Army for injury, illness, or disease incurred in LD, under the following
conditions prescribed by law (10 USC 1074a):
(1) while performing AD for a period of 30 days or less;
(2) while performing inactive duty training;
(3) while performing service on funeral honors duty under 10 USC 12503 or 32 USC 115;
(4) while traveling directly to or from the place at which that soldier is to perform or has performed—
(a)
active duty for a period of 30 days or less;
(b)
inactive duty training; or
(c)
service on funeral honors duty under 10 USC 12503 or 32 USC 115;
(5) while remaining overnight immediately before the commencement of inactive duty training, or while remaining
overnight, between successive periods of inactive duty training, at or in the vicinity of the site of the inactive duty
training; or
(6) while remaining overnight immediately before serving on funeral honors duty under 10 USC 12503 or 32 USC
115 at or in the vicinity of the place at which the soldier was to so serve, if the place is outside reasonable commuting
distance from the soldier’s residence.
(5) while remaining overnight immediately before the commencement of inactive duty training, or while remaining
overnight, between successive periods of inactive duty training, at or in the vicinity of the site of the inactive duty
training; or
(6) while remaining overnight immediately before serving on funeral honors duty under 10 USC 12503 or 32 USC
115 at or in the vicinity of the place at which the soldier was to so serve, if the place is outside reasonable commuting
distance from the soldier’s residence.
f. Benefits administered by the Department of Veterans Affairs (DVA).
In determining whether a veteran or his or
her survivors or family members are eligible for certain benefits, the DVA makes its own determinations with respect
to LD. These determinations rest upon the evidence available. Usually this consists of those facts that have been
officially recorded and are on file within DA, including reports and LD investigations submitted in accordance with the
provisions of this regulation. Statutes governing these benefits generally require that disabling injury or death be
service connected, which means that the disability was incurred or aggravated in LD (38 USC 101). The statutory
criteria for making such determinations are in 38 USC 105.
her survivors or family members are eligible for certain benefits, the DVA makes its own determinations with respect
to LD. These determinations rest upon the evidence available. Usually this consists of those facts that have been
officially recorded and are on file within DA, including reports and LD investigations submitted in accordance with the
provisions of this regulation. Statutes governing these benefits generally require that disabling injury or death be
service connected, which means that the disability was incurred or aggravated in LD (38 USC 101). The statutory
criteria for making such determinations are in 38 USC 105.
2–3. Requirements for line of duty investigations
Line of duty investigations are conducted essentially to arrive at a determination of whether misconduct or negligence
was involved in the disease, injury, or death and, if so, to what degree. Depending on the circumstances of the case, an
LD investigation may or may not be required to make this determination.
was involved in the disease, injury, or death and, if so, to what degree. Depending on the circumstances of the case, an
LD investigation may or may not be required to make this determination.
a.
The LD determination is presumed to be "LD YES" without an investigation—
(1) In the case of disease, except as described in paragraphs c (1) and (8) below.
(2) In the case of injuries clearly incurred as a result of enemy action or attack by terrorists.
(3) In the case of death due to natural causes or while a passenger in a common commercial carrier or military
aircraft.
(1) In the case of disease, except as described in paragraphs c (1) and (8) below.
(2) In the case of injuries clearly incurred as a result of enemy action or attack by terrorists.
(3) In the case of death due to natural causes or while a passenger in a common commercial carrier or military
aircraft.
AR 600–8–4 • 4 September 2008 3
b.
In all other cases of death or injury, except injuries so slight as to be clearly of no lasting significance (for
example, superficial lacerations or abrasions or mild heat injuries), an LD investigation must be conducted.
example, superficial lacerations or abrasions or mild heat injuries), an LD investigation must be conducted.
c.
Investigations can be conducted informally by the chain of command where no misconduct or negligence is
indicated, or formally where an investigating officer is appointed to conduct an investigation into suspected misconduct
or negligence. A formal LD investigation must be conducted in the following circumstances:
(1) Injury, disease, death, or medical condition that occurs under strange or doubtful circumstances or is apparently
due to misconduct or willful negligence.
(2) Injury or death involving the abuse of alcohol or other drugs.
(3) Self-inflicted injuries or possible suicide.
(4) Injury or death incurred while AWOL.
(5) Injury or death that occurs while an individual was en route to final acceptance in the Army.
(6) Death of a USAR or ARNG soldier while participating in authorized training or duty.
(7) Injury or death of a USAR or ARNG soldier while traveling to or from authorized training or duty.
(8) When a USAR or ARNG soldier serving on an AD tour of 30 days or less is disabled due to disease.
(9) In connection with an appeal of an unfavorable determination of abuse of alcohol or other drugs (para 4–10a).
(10) When requested or directed for other cases.
indicated, or formally where an investigating officer is appointed to conduct an investigation into suspected misconduct
or negligence. A formal LD investigation must be conducted in the following circumstances:
(1) Injury, disease, death, or medical condition that occurs under strange or doubtful circumstances or is apparently
due to misconduct or willful negligence.
(2) Injury or death involving the abuse of alcohol or other drugs.
(3) Self-inflicted injuries or possible suicide.
(4) Injury or death incurred while AWOL.
(5) Injury or death that occurs while an individual was en route to final acceptance in the Army.
(6) Death of a USAR or ARNG soldier while participating in authorized training or duty.
(7) Injury or death of a USAR or ARNG soldier while traveling to or from authorized training or duty.
(8) When a USAR or ARNG soldier serving on an AD tour of 30 days or less is disabled due to disease.
(9) In connection with an appeal of an unfavorable determination of abuse of alcohol or other drugs (para 4–10a).
(10) When requested or directed for other cases.
2–4. Informal LD investigations
Documentation for an informal LD investigation typically consists of DA Form 2173 completed by the MTF and the
unit commander and approved by the appointing authority, State AG, or higher authority. The final determination of an
informal LD investigation can result in a determination of "in LD" only, except as provided in paragraph 4–8(c)(1).
(See chap 3, sect I, for a detailed discussion of the informal LD investigation.)
unit commander and approved by the appointing authority, State AG, or higher authority. The final determination of an
informal LD investigation can result in a determination of "in LD" only, except as provided in paragraph 4–8(c)(1).
(See chap 3, sect I, for a detailed discussion of the informal LD investigation.)
2–5. Formal LD investigations
A formal LD investigation is a detailed investigation that normally begins with DA Form 2173 completed by the MTF
and annotated by the unit commander as requiring a formal LD investigation. The appointing authority, on receipt of
the DA Form 2173, appoints an investigating officer who completes DD Form 261 and appends appropriate statements
and other documentation to support the determination, which is submitted to the GCMCA for approval. (See chap 3,
sect II, for a detailed treatment of the formal LD investigation.)
and annotated by the unit commander as requiring a formal LD investigation. The appointing authority, on receipt of
the DA Form 2173, appoints an investigating officer who completes DD Form 261 and appends appropriate statements
and other documentation to support the determination, which is submitted to the GCMCA for approval. (See chap 3,
sect II, for a detailed treatment of the formal LD investigation.)
2–6. Standards applicable to LD determinations
Decisions on LD determinations will be made in accordance with the standards set forth in this regulation.
a.
Injury, disease, or death proximately caused by the soldier’s intentional misconduct or willful negligence is "not
in LD—due to own misconduct." Simple or ordinary negligence or carelessness, standing alone, does not constitute
misconduct.
in LD—due to own misconduct." Simple or ordinary negligence or carelessness, standing alone, does not constitute
misconduct.
b.
An injury, disease, or death is presumed to be in LD unless refuted by substantial evidence contained in the
investigation.
investigation.
c.
Line of Duty 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, considering—
(1) All direct evidence, that is, evidence based on actual knowledge or observation of witnesses; and/or
(2) All indirect evidence, that is, facts or statements from which reasonable inferences, deductions, and conclusions
may be drawn to establish an unobserved fact, knowledge, or state of mind.
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, considering—
(1) All direct evidence, that is, evidence based on actual knowledge or observation of witnesses; and/or
(2) All indirect evidence, that is, facts or statements from which reasonable inferences, deductions, and conclusions
may be drawn to establish an unobserved fact, knowledge, or state of mind.
d.
No distinction will be made between the relative value of direct and indirect evidence. In some cases, direct
evidence may be more convincing than indirect evidence. In other cases, indirect evidence may be more convincing
than the statement of an eyewitness. The weight of the evidence is not determined by the number of witnesses or
exhibits but by the investigating officer and higher authorities accomplishing the following actions:
(1) Considering all the evidence.
(2) Evaluating factors such as a witness’s behavior, opportunity for knowledge, information possessed, ability to
recall and relate events, and relationship to the matter to be decided.
(3) Considering other signs of truth.
evidence may be more convincing than indirect evidence. In other cases, indirect evidence may be more convincing
than the statement of an eyewitness. The weight of the evidence is not determined by the number of witnesses or
exhibits but by the investigating officer and higher authorities accomplishing the following actions:
(1) Considering all the evidence.
(2) Evaluating factors such as a witness’s behavior, opportunity for knowledge, information possessed, ability to
recall and relate events, and relationship to the matter to be decided.
(3) Considering other signs of truth.
e.
The rules in appendix B will be considered fully in deciding LD determinations. These rules elaborate upon, but
do not modify, the basis for LD determinations.
Only problem is this happened in Kuwait (OEF) Sep 2003 while in the MSARNG. I've transferred to USAR since (Oct 2004). Do I go to back to MSARNG AG's office and get them to review and sign? Understand, my LOD paperwork is signed and completed by my commander but not reviewed and approved by higher HQs. This is my dilemma.
Jason Perry
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You mean your current commander has signed it but no action from higher reviewing/approval authority? I would look to your current chain to process this. The regulations spell out who needs to do what. Since you are currently part of the USAR, they should handle the current LOD (even though it should have been done originally by the MSARNG).
My commander in Kuwait in 2003 begain and signed the LOD write after the accident and gave me a copy then. He says the orginial was submitted to higher HQs. However I did not receive a completed copy. Therefore I called MSARNG for a completed copy but the cannot find the original or a copy. All I have is my incompleted copy. So you are telling me my present commander in USAR can sign it eventhough he does not have any knowledge of my accident?
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Seems to me that your current command/commander should do a "new" LOD. If there is doubt about your LOD, they should conduct a formal investigation. I know that they may not have first hand knowledge, etc., but they can still look at the documentation, your statements, and by applying the presumptions, complete a LOD. If helpful, they can contact your old unit to see if they have any insight or reference the "old" documentation.
I have heard of many units not wanting to do LOD's or saying it is someone else's problem. All I can say is that the regulations require "your command" to complete a LOD. To me, that clearly talks about your current command. I doubt that your unit from 7 years ago would be in any better position to complete a LOD, anyway. Even though the reserve components have a lower turnover rate, likely the Commander, First Sergeant and many of the witnesses have left the unit. Sure, it may be extra work for your unit. That doesn't relieve them of the responsibility.
I have heard of many units not wanting to do LOD's or saying it is someone else's problem. All I can say is that the regulations require "your command" to complete a LOD. To me, that clearly talks about your current command. I doubt that your unit from 7 years ago would be in any better position to complete a LOD, anyway. Even though the reserve components have a lower turnover rate, likely the Commander, First Sergeant and many of the witnesses have left the unit. Sure, it may be extra work for your unit. That doesn't relieve them of the responsibility.
The unit should complete an LOD. My National Guard unit(God bless them) even attempted to do an LOD on injuries sustained while I was in the regular army. My unit, (and maybe yours too?) means well. However they often are unclear about the LOD process. I have had to hand carry my LOD paperwork all over the place. I tracked down the original PA who signed my profile. I had a new 2173 signed, I obtained witness statements etc.
Update on my LOD. Still no joy. I spoke with the training NCO yesterday. He just received my MEB paperwork, which he was working on. My LOD paperwork is complete(I know as I had to complete the packet myself.) but of course he has yet to submit it to health services. I am starting to get P.O. He has had the paperwork for over a week.
When my package went to the IPEB, THEY requested the reserves complete an LOD on each disability diagnosis. In the end, they did around 7 different LODs. They sent this request directly to the PEBLO with no involvement from me. I didn't even know about the extra LODs until they were already complete. THE FOIA won't do anything for you if an LOD was never completed. They will come back and say no record is on file. If the MEB, IPEB, PEB needs an LOD, they should ask the PEBLO for it--it's there job to get it if one is needed, not yours.
How do I get an LOD Investigation started? I was hurt 18 yrs ago when I was Regular Army and now I'm in the Guard and they don't want to do one,but want to kick me out for other issues not related to this issue! I really need some help! I haven't even been appointed a PEBLO yet! I have 8 months until I ets!
I sent them everything before my Chapter 3 fit for duty physical. The doctor told me my injury was 18 yrs old and he wouldn't conduct one. I even requested one be conducted on the Notice of Disqualification and Intent form! I was hurt on Active Duty and I draw 30% thru the VA because it's Service-Connected! If you have medical paperwork to prove it is a LOD Injury, how can they tell you no? But we'll kick you out for djd,type2 diabetes,obstructive sleep apnea, tinnitus and we'll say these are Non-Duty Related, give you a medical discharge, transfer you to the Retired Reserves with No Benefits for over 17 yrs of Honorable Service and you can be the VA's Problem now! Thats pretty much what I was told by the main doc at the Nat'l Guard State HQ MTF and this doc isn't even the State Surgeon! I ets on Jan 6,2012 unless I get extended! My Batallion Med NCO was supposed to see if I have enough for a LOD Investigation and if so, have it started by today! No Phone call as promised! Who knows?