MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 05 SEPTEMBER 2002
         DOCKET NUMBER: AR2002071533

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Ms. Celia L. Adolphi		Chairperson
Mr. Melvin H. Meyer		Member
Mr. John T. Meixell		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: That item 10 of his 22 October 2001 DA Form 199 (Physical Evaluation Board (PEB) Proceedings)) be corrected to show that his medical condition was based on disability from a disease received in the line of duty under conditions simulating war.

APPLICANT STATES: That according to Title 26 USC Section 104 and Army Regulation 635-40, combat related injuries include illness or damage incurred under conditions simulating war. His illness occurred while at the National Training Center, Fort Irwin, California, while simulating war.

EVIDENCE OF RECORD: The applicant's military records show:

The applicant had service as an enlisted man prior to his appointment as a second lieutenant in the Army National Guard on 27 June 1998.

Orders published by the Virginia National Guard show that the applicant’s unit, Headquarters and Headquarters Company, 2^nd Battalion, 224^th Aviation, Virginia Army National Guard, was ordered to annual training at Fort Irwin for the period 6 March – 26 March 2000.

The applicant’s officer evaluation report for the period 21 February 2000 through 20 February 2001 shows that he was the battalion signal officer. His rater stated that he was instrumental in creating the conditions for a favorable outcome during the deployment to the National Training Center, that he ensured that the task force maintained constant communication with both upper and lower command echelons, and that he was responsible for the successful integration of battalion and brigade communications. His rater stated that he diagnosed numerous communication failures and properly corrected the faults. His senior rater stated that the applicant was successful in ensuring the battalion was prepared for deployment to the National Training Center and Bosnia by planning and implementing all facets of communication.

An 8 April 2001 report of investigation (DD Form 261) shows that the applicant deployed in an annual training status to the National Training Center at Fort Irwin during the period 6 March 2000 to 26 March 2000, and that following his deployment he was diagnosed with coccidioidomycosis-disseminated, a disease contracted from breathing fungal spores found in certain desert regions of the southwestern United States, Mexico, and Central and South America. The deployment was the only time that the applicant had deployed or traveled to those desert regions. The investigating officer included various medical reports, test reports, and statements from the applicant’s doctor.

The investigating officer stated that the rare disease is contracted from breathing the spores of a fungus found in the soil in certain desert regions of southwestern United States.
In a 7 April 2001 statement the applicant stated that he was performing duties as the battalion CE (communications-electronics) officer throughout the unit’s 6 March 2000 –26 March 2000 rotation; however, the infection was not diagnosed until January 2001 due to the rarity of contracting the disease. The only time that he had been in such an area was when he was at the National Training Center. His doctors were convinced that is where he contracted the disease.

In a 10 April 2001 statement the State Judge Advocate stated that the line of duty investigation was adequate and legally sufficient, and that the injuries sustained were incurred in the line of duty. He stated that the applicant apparently contracted the disease, which is reportedly limited to the southwestern United States, while training in the Mohave Desert, and that he denied any other possible geographic exposure. He did not experience the symptoms for almost a year and was diagnosed by a doctor in February 2001. The primary basis for the line of duty determination was the internet research that the disease is limited to the southwestern United States and the statement by the doctor. He stated that the investigating officer obtained no epidemiological data or other evidence, regarding the presence of the spores in the specific training area; however, the facts presented were sufficient to meet the preponderance of the evidence test applicable to administrative line of duty determinations.

The 22 October 2001 Physical Evaluation Board (PEB) Proceedings (DA Form 199) state, in part, that the applicant’s condition was described as disseminated coccidioidomycosis (involving the right iliac wing, L2 and L4 with a history of surgical debridement of the iliac wing). The lumbar lesions were treated medically only. His condition was rated under the VASRD (VA Schedule of Rating Disabilities) criteria for osteomyelitis as there was no evidence of pulmonary disease. As the soldier was currently asymptomatic but appeared to still have active lesions requiring, according to the narrative summary, lifelong prophylactic medication, a 30 percent rating was appropriate.

The PEB found the applicant physically unfit and recommended a rating of 30 percent and that he be placed on the temporary disability retired list.

Item 10 of that form includes the following statement: “C. The disability did not result from a combat related injury as defined in 26 U.S.C. 104.”

The applicant concurred with the findings and recommendation of the PEB on 5 November 2001.

Title 26, Section 104 of the U.S. Code pertains to compensation for injuries or sickness, and states in pertinent part that gross income does not include amounts received as a pension, annuity, or similar allowance for personal injuries or sickness resulting from active service in the armed forces of any country. This includes a pension, annuity, or similar allowance by reason of a combat-related injury. Combat related injury means personal injury or sickness which is incurred as a direct result of armed conflict, while engaged in extra hazardous service, or under conditions simulating war; or which is caused by an instrumentality of war.

Army Regulation 635-40 establishes the Army physical disability evaluation system and states in pertinent part that PEBs are established to evaluate all cases of physical disability and determines, in the case of a soldier ordered to active duty for 30 days or less, whether or not the disability was the proximate result of performing active duty or inactive duty training, whether the disability meets the criteria for exemption of disability retired or severance pay from gross federal income.

In order for military disability retired or severance pay to be exempt from federal taxation, the disability pay must be awarded by reason of a combat-related injury. Within the meaning of 26 USC 104, combat-related injuries cover those disabilities attributable to the special dangers associated with armed conflict or the preparation or training for armed conflict. A soldier may be performing extra hazardous service even if not directly engaged in combat, e.g., aerial flight duty. Conditions simulating war include, but are not limited to, performance of tactical exercises such as the squad or platoon in the assault; airborne operations, leadership reaction courses; grenade and live fire weapons practices, hand-to-hand combat training, etc. The injury resulting from an instrumentality of war need not have occurred during a period of war as defined by law.

The entries made on DA Form 199, blocks 10B and 10C concern disability compensation excludable from gross income. Block 10B relates to whether or not the soldier was a member on 24 September 1975. In block 10C, the board will record its determination of whether the injury was combat-related as defined by 26 USC 104.

An injury may be found to be a combat related injury if it was incurred as a direct result of armed conflict, while engaged, or performing, in extra hazardous service, or under conditions simulating war.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. The applicant’s condition may well have been contracted while he was on annual training with his battalion at the National Training Center in March 2000. It appears, however, that he may have contracted the disease by virtue of his mere presence at Fort Irwin, not by performing extra hazardous service, or under conditions simulating war within the meaning of 26 USC 104.

2. He has provided no evidence to show that the disease that he contracted was combat-related. There is insufficient evidence to overturn the decision of the 22 October 2001 PEB, a decision in which he concurred on 5 November 2001.

3. The applicant has submitted neither probative evidence nor a convincing argument in support of his request.

4. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy that requirement.

5. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__CLA __ __MHM__ __JTM __ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2002071533
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020905
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	124.00
2.
3.
4.
5.
6.