RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        31 August 2006
      DOCKET NUMBER:  AR20060000004


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

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Mr. Jeffrey C. Redmann            |     |Member               |
|     |Ms. Karmin S. Jenkins             |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his AGPZ Form 977 (Data for Retired Pay)
(not available and not provided by the applicant) and his Physical
Evaluation Board (PEB) findings be corrected to show his disability was a
direct result of armed conflict and/or was caused by an instrumentality of
war.

2.  The applicant states he recalls seeing hospital records stating that
the etiology of his osteomyelitis was “unknown.”  He has since learned that
the infections that cause osteomyelitis are often introduced into the body
elsewhere. He believes the osteomyelitis that developed in his lower right
leg was directly due to infection being introduced through his shrapnel
wound as from any other origin.  It is an injustice that the cited
documents do not acknowledge that possibility.  At the very least, it
should be seen from the medical evidence that the delay in getting an
accurate diagnosis and appropriate medical intervention were a direct
result of the conditions of war that precluded the use of diagnostic tools
that were, even then, readily available in a non-hostile environment.  A
failure to correct the record will preclude him from recovering about 2
years of creditable service in his Federal employment.

3.  The applicant states that in August 1968 he was struck in the left
thigh by a piece of shrapnel about 3 inches by 3 inches, thought to be
secondary to a bomb dropped by U. S. forces.  He was treated by the company
medic but remained with the unit for the next 2 to 3 days.  After that, the
pain and the hyperextension of the knee necessitated his evacuation back to
camp.  He was treated conservatively, almost casually, as an outpatient at
the 95th Evacuation Hospital in Danang.  He discontinued treatment and
returned to his company about a week later after learning that his company
had been hit by a friendly air strike.  He does not recall any other
instances of trauma aside from the usual scratches, bang-ups, and bruises
he received as an infantryman moving through mountains and occasionally
confronting small groups of enemy soldiers.

4.  The applicant states that, on 23 October 1968, he began to experience
significant pain in his right calf.  He was medically evacuated with a
diagnosis of deep thrombophlebitis.  The osteomyelitis was accurately
diagnosed around Mid-November 1968.  The delay in accurately diagnosing his
condition resulted in the loss of his leg and was a direct result of war,
perhaps an instrumentality of war.

5.  The applicant states that he only recently (around October 2004) became
aware that the findings of the PEB may very well be erroneous.

6.  The applicant provides an undated statement requesting support from his
physicians; statements of support from two of his physicians; two internet
articles on osteomyelitis; two pages of his DA Form 20 (Enlisted
Qualification Record); Air Medal orders; page 1 of a Standard Form 88
(Report of Medical Examination) dated 3 August 1969; 1 page of a DA Form
1361 (Recommended Findings of Physical Evaluation Board (Informal
Hearing)); and a DA Form 1594 (Daily Staff Journal or Duty Officer’s Log
(dated “November” but year not listed).

CONSIDERATION OF EVIDENCE:

1.  The applicant was inducted into the Army on 28 April 1967.  He
completed basic combat training and advanced individual training (AIT) and
was awarded military occupational specialty 11B (Light Weapons
Infantryman).  He served as a squad leader with the 3d AIT Brigade, U. S.
Army Training Center, Infantry, Fort Polk, LA from 31 January 1968 to 4
April 1968.  He departed Fort Polk on    5 April 1968.  He departed for
Vietnam on 29 April 1968.

2.  The applicant was assigned to the 2d Battalion, 327th Infantry in
Vietnam on or about 10 May 1968.  He was medically evacuated on 15 October
1968 with an initial diagnosis of septic thrombophlebitis.  He was
transferred to the Philippines on 9 November 1968.  On 14 November 1968,
his right leg was amputated at the knee.

3.  On 5 September 1969, a Medical Evaluation Board (MEB) referred the
applicant to a PEB with diagnoses of surgically amputated right lower
extremity secondary to osteomyelitis, sustained while serving in Vietnam;
and “hypacusis” (possibly hypercusis, i.e., dizziness), bilateral, mild,
sensorineural.

4.  The MEB Narrative Summary indicated that the applicant had a six-month
history of pyogenic (producing pus) skin infections, multiple episodes,
while in Vietnam.  In early April 1968, he developed several furuncles (a
painful nodule formed in the skin by circumscribed inflammation of the
corium (the dermis) and subcutaneous tissue, caused by staphylococci) on
the left forearm.  (Staphylococcus is a microorganism of the family
Micrococcaceae, order Eubacteriales, which are the commonest cause of
localized suppurative (producing pus) infections.)

5.  On 11 September 1969, an informal PEB found the applicant to be unfit
due to the amputation of his right leg.  On the DA Form 1361, the PEB
indicated that the applicant’s disability was not a direct result of armed
conflict and was not caused by an instrumentality of war.

6.  On 16 October 1969, the applicant was released from active duty and
permanently retired by reason of physical disability.
7.  In the processing of the case, an advisory opinion was obtained from
the U. S. Army Physical Disability Agency.  That Agency stated that it
appears as if the applicant’s disability retirement findings held that his
amputation was not the result of any armed combat (sic).  That Agency
opined that there is no evidence to prove that the applicant’s amputation
was the direct result of a wound or any other injury directly caused by
armed conflict.

8.  A copy of the advisory opinion was provided to the applicant for
comment or rebuttal.  He rebutted that he is requesting that his disability
(not his retirement) be determined to have been the direct result of armed
conflict, even though not a direct result of armed combat.  His records
show he was an infantryman performing infantry duties with an infantry
unit.  The majority of his time in Vietnam was spent in “free fire” zones.
He does not believe the PEB addressed “armed conflict injury.”  The
applicant states he was seen and evaluated by the Battalion Surgeon “out in
the boonies” where the conditions were such that he did not have access to
those diagnostic tools because of the armed conflict.  Because he was
misdiagnosed, the infection spread and his leg was amputated to save his
life.  He has given up on asserting that his disability may have been
caused by an instrumentality of war.

9.  Army Regulation 635-40 governs the evaluation of physical fitness of
Soldiers who may be unfit to perform their military duties because of
physical disability.  The regulation in effect at the time (and currently)
stated that a member whose retirement from the service is based on
disability (1) resulting from injury or disease received in line of duty as
a direct result of armed conflict, or (2) caused by an instrumentality of
war and incurred in line of duty during a period of war, is entitled to
certain special considerations if he subsequently goes to work for the
Federal government.

10.  Army Regulation 635-40 stated a disability may be considered a direct
result of armed conflict if (1) it was incurred while the member was
engaged in armed conflict or an operation or incident involving armed
conflict or the likelihood of armed conflict, and (2) a direct causal
relationship exists between the armed conflict or the incident or operation
and the disability.

11.  Army Regulation 635-40 states the phrase “instrumentality of war”
refers, in part, to a device primarily designed for military service and
intended for use in such service at the time of the occurrence of the
injury.

12.  The applicant provided two internet articles on osteomyelitis.  The
article from “Medicine – Instant Access to the Minds of Medicine” – states
that osteomyelitis is an acute or chronic inflammatory process of the bone
and its structures secondary to infection with pyogenic organisms.
Hematogenous osteomyelitis is an infection caused by bacterial seeding from
the blood.  Acute hematogenous osteomyelitis is characterized by an acute
infection of the bone caused by bacterial seeding from the blood.  Acute
hematogenous osteomyelitis, despite its name, may have a slow clinical
development and insidious onset.

DISCUSSION AND CONCLUSIONS:

1.  Since “instrumentality of war” refers, in part, to a device primarily
designed for military service and intended for use in such service at the
time of the occurrence of the injury, and since the applicant does not
contend that his disability was caused by biological warfare, there is no
grounds for asserting that his disability was the result of an
instrumentality of war.

2.  Otherwise, the evidence of record agrees with the applicant.  There is
no doubt that he was involved in an armed conflict.

3.  However, in order for a disability to have been determined that it was
a direct result (emphasis added) of armed conflict, two conditions must be
met:  (1) it was incurred while the member was engaged in armed conflict or
an operation or incident involving armed conflict or the likelihood of
armed conflict, and (2) a direct causal relationship exists between the
armed conflict or the incident or operation and the disability.

4.  One of the internet articles provided by the applicant indicated that
osteomyelitis is an acute or chronic inflammatory process of the bone and
its structures secondary to infection with pyogenic organisms.  It also
stated that acute hematogenous osteomyelitis may have a slow clinical
development.

5.  The applicant departed for Vietnam on 29 April 1968, and he was
medically evacuated on 15 October 1968.  The MEB Narrative Summary
indicated that he had a six-month history of pyogenic skin infections,
multiple episodes, while in Vietnam.  Given the climate and sanitary
conditions of war-torn Vietnam, the applicant could have developed those
infections as soon as he arrived in-country and before he went on any
missions with his unit.  The MEB Narrative Summary indicated that in early
April 1968 (while he was still in the States, possibly while still at Fort
Polk) he developed several furuncles on the left forearm.

6.  Because of the applicant’s previous medical history of infections, it
appears that the hospital records he recalls seeing, that stated the
etiology of his osteomyelitis was “unknown,” were accurate.  Regrettably,
there is insufficient evidence to show that his osteomyelitis was caused by
an infection he developed after he was injured from shrapnel in October
1968.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__wdp___  __jcr___  __ksj___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented does not demonstrate the
existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.




                                  __William D. Powers___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060000004                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060831                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |108.08                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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