RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  5 April 2007
	DOCKET NUMBER:  AR20060009287 


	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. Gerard W. Schwartz

Acting Director

Mr. John J. Wendland, Jr.

Analyst

The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Mr. Jeffrey C. Redmann

Member

Mr. Scott W. Faught

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, in effect, correction of his discharge documents to show permanent disability retirement based on disease aggravated in line of duty and the he be granted a higher disability rating.  The applicant also requests award of the Combat Medical Badge and any other awards authorized for his unit during his military service in Haiti.

2.  The applicant states, in effect, that he was a combat medic while assigned to the 47th Field Hospital, Fort Sill, Oklahoma, attached to the 25th Infantry Division in support of Operation Uphold Democracy (OUD), when his unit deployed to Haiti in January 1995.

     a.  The applicant states, in effect, that while serving in Haiti he became symptomatic due to the environment, as the area was extremely dusty with poor living accommodations.  The applicant also states, in effect, that after being treated in the 47th Field Hospital emergency room in Haiti, he was medically evacuated under emergency conditions to Walter Reed Army Medical Center (WRAMC) on 23 February 1995.  He was an inpatient at WRAMC from
25 February 1995 through 3 March 1995, diagnosed with Sarcoidosis, and this disease progressed to a physical impairment which resulted in a medical determination of his status as physically unfit for duty and a medical retirement.

     b.  The applicant states, in effect, after returning to his home unit from WRAMC and before receiving his awards for OUD, he was reassigned to Tripler Army Medical Center, Hawaii, with temporary duty enroute to Fort Sam Houston, Texas, for the Basic Noncommissioned Officer Course.  He adds, in effect, that he was unable to resolve the issue regarding his entitlement to awards for OUD while on active duty because the 47th Field Hospital deactivated.

     c.  The applicant concludes by stating that he was placed on the temporary disability retired list in 18 June 2002 and permanently retired on 14 June 2005.

3.  The applicant provides a self-authored statement, dated 25 June 2006; Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma, Permanent Orders 3-1, dated 5 January 1995; a 1-page Request for Orders Continuation Sheet (Main Body), undated; DD Form 602 (Patient Evacuation Tag), dated 23 February 1995; Headquarters, 55th Personnel Service Company Forward, 25th Infantry Division (Light), Orders 041-004, dated 24 February 1995; Task Force 47th Hospital Theater Evacuation Report, dated 27 February 1995; Medical Record, History - Part 1, undated; Headquarters, Walter Reed Army Medical Center, MCHL-PAD-AE, Washington, District of Columbia (DC), memorandum, undated, subject:  Certification of Hospitalization; DA Form 4700 (Medical Record - Supplemental Medical Data), dated 3 February 1995;
Madigan Army Medical Center, Narrative Summary, Medical Evaluation Board (MEB), dictated on 21 March 2002; Patient Lab Inquiry, dated 7 January 2002; Plethysmography Report, Madigan Army Medical Center, dated 14 January 2002; Standard Forms (SF) 513 (Consultation Reports), dated 14 January 2002,
7 February 2002, 8 February 2002, and 13 February 2002; DA Form 3947 (Medical Evaluation Board Proceedings), dated 22 March 2002; DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 4 April 2002; DD Form 214 (Certificate of Release or Discharge from Active Duty), with an effective date of 17 June 2002; Computer Generated, Medical Report, Narrative Summary (Clinical Resume), dated 31 March 2005; Headquarters, U.S. Army Physical Disability Agency (USA PDA), WRAMC, AHRC-DOE, Washington, DC, Orders D165-03, dated 14 June 2005; and a 2-page Military Awards Branch, Recently Approved Unit Awards document, undated.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 17 June 2002, the date of his temporary disability retirement.  The application submitted in this case is dated 17 June 2006.

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant enlisted in the U.S. Army Reserve (USAR) on 21 July 1988 and entered active duty in the Regular Army (RA) on 13 September 1988.  Upon completion of basic combat training and advanced individual training, he was awarded military occupational specialty (MOS) 91A (Medical Specialist).  The applicant attained the rank of staff sergeant/pay grade E-6, was reclassified into MOS 91W (Medical Noncommissioned Officer), honorably discharged from active duty on 17 June 2002, and placed on the temporary disability retired list (TDRL), effective 18 June 2002.


4.  The applicant's military service records are absent any evidence of a
DD Form 261 (Report of Investigation - Line of Duty and Misconduct Status).

5.  The applicant's military service records contain a copy of a DA Form 3947, dated 22 March 2002.  This document shows, in pertinent part, that the document listed the following diagnosis:  sarcoidosis, glaucoma, ples planus, and degenerative joint disease secondary to right malleolar fracture.  This document also shows that all diagnosis were incurred while the applicant was entitled to base pay, existed prior to service, and were not permanently aggravated by service.  This document further shows that the applicant was referred to a PEB.

6.  The applicant's military service records contain a copy of a DA Form 199. This document shows that a PEB was convened on 4 April 2002 and, in pertinent part, included as exhibits considered by the Board were the appointing orders, MEB proceedings, commander's statement, and Line of Duty Investigation.  The PEB proceedings show, in pertinent part, that the applicant's pulmonary sarcoidosis disability was incurred while he was entitled to basic pay, in line of duty, as a proximate result of performing duty, and rated at a disability level of 30 percent or more.  This document further shows, that the other conditions listed as MEB diagnosis (i.e., glaucoma, pes planus, and degenerative joint disease secondary to right malleolar fracture) were considered by the PEB and found to be not unfitting and, therefore, not ratable.  The Board recommended a combined rating of 30 percent and the applicant be placed on the TDRL with reexamination during April 2003.  The Board also found, in pertinent part, that the applicant's "retirement is not based on disability from injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurring in line of duty during a period of war as defined by law" and "the disability did not result from a combat related injury as defined in 26 United States Code 104 (26 USC 104)."

7.  Item 13 (Election of Soldier) of the DA Form 199 shows that, on 9 April 2002,  the applicant concurred with the findings and recommendations of the PEB and waived a formal hearing of his case.  Item 13 (Election of Soldier) of the DA Form 199 shows that on 9 April 2002, the applicant acknowledged being advised of the findings and recommendations of the PEB and that he received a full explanation of the results of the findings and recommendations and his legal rights pertaining thereto.  The applicant initialed and signed Item 13 of the document indicating he concurred and waived a formal hearing of his case.  The PEB proceedings were approved for the Secretary of the Army on 9 April 2002.

8.  The applicant's military service records contain a copy of Headquarters,
I Corps and Fort Lewis, Military Personnel Division, Fort Lewis, Washington, Orders 114-0014, dated 24 April 2002.  This document shows, in pertinent part, that the applicant was released from assignment and duty on 17 June 2002 because of physical disability incurred while entitled to basic pay and under conditions that permit the applicant's placement on the TDRL, effective 18 June 2002.  This document also shows the applicant's percentage of disability as
30 percent.  This document further shows for the lead line, "Disability is based on injury or disease received in LOD as a direct result of armed conflict or caused by an instrumentality of war and incurred in the LOD during a war period as defined by law:" the entry "No", and for the lead line, "Disability resulted from a combat related injury as defined in 26 USC 104:" the entry "No."

9.  The applicant's military service records contain a DD Form 214, with an effective date of 17 June 2002.  This document shows, in pertinent part, that the applicant was honorably discharged from active duty on 17 June 2002 and placed on the TDRL after completing a total of 13 years, 9 months, and 5 days of active service.  Item 25 (Separation Authority) shows the applicant was separated under authority of Army Regulation 635-40, paragraph 4-2(b)2.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of the DD Form 214 shows that the applicant was awarded the Army Commendation Medal, Army Achievement Medal (3rd Award), Army Good Conduct Medal (4th Award), National Defense Service Medal (2nd Award), Armed Forces Expeditionary Medal, Humanitarian Service Medal, Noncommissioned Officer Professional Development Ribbon with Numeral "2", Army Service Ribbon, Overseas Service Ribbon (2nd Award), and Expert Marksmanship Qualification Badge with Rifle, Pistol, and Grenade Bars.

10.  There are no orders in the applicant’s service personnel records which show that he was awarded the Combat Medical Badge.

11.  The applicant's military service records document no acts of valor, significant achievement, or service warranting special recognition.

12.  Headquarters, U.S. Army Physical Disability Agency (USA PDA), WRAMC, AHRC-DOE, Washington, DC, Orders D165-03, dated 14 June 2005, removed the applicant from the TDRL on 14 June 2005 and permanently retired the applicant, effective 15 June 2005, with a 30 percent disability rating.

13.  In support of his application, the applicant provides a self-authored statement to the Army Disability Rating Review Board, dated 25 June 2006, in which he states that he was engaged in extra-hazardous service when he became ill while deployed to Haiti in support of Operation  Uphold Democracy in February 1995.  As a result, he asserts that his permanent disability orders, dated 14 June 2005, should be corrected to show that that the disability is based on a disease received In Line of Duty as a direct result of armed conflict during a war period.  He also states that, on 1 April 2005, during his TDRL physical examination, he was diagnosed with an obstructive lung disease, as well as sarcoidosis and gastoesophageal reflux disease.  He further states that his radiological report, dated 1 March 2005, indicates that he has surrounding bronchiectasis in his lungs.  The applicant indicates that he is not sure this report was evaluated prior to the adjudication of his case and submits this information in support of a higher disability evaluation.

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  If a Soldier is found unfit because of physical disability, this Army regulation provides for disposition of the Soldier according to applicable laws and regulations.

15.  Army Regulation 635-40, paragraph 4-24 (Disposition by U.S. Army Human Resources Command (USA HRC)), provides, in pertinent part, that based upon the final decision of the USA PDA or Army Physical Disability Board, USA HRC will issue retirement orders or other disposition instructions for placement of the Soldier on the TDRL.

16.  Title 26 (Internal Revenue Code), United States Code, section 104 (Compensation for injuries or sickness), provides, in pertinent part, special rules for combat-related injuries.  For purposes of this subsection, the term "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. 

17.  Army Regulation 600-8-22 (Military Awards), paragraph 8-7, provides, in pertinent part, that the Combat Medical Badge is awarded to medical department personnel (colonel and below) who are assigned or attached to a medical unit of company or smaller size that is organic to an infantry unit of brigade, regimental or smaller size which is engaged in active ground combat.  Battle participation credit is not sufficient; the infantry unit must have been in contact with the enemy and the Soldier must have been personally present and under fire during such ground combat.  This document shows that the Combat Medical Badge is authorized for award for the following qualifying wars, conflicts, and operations: World War II (7 December 1941 to 3 September 1945); the Korean War (27 June 1950 to 27 July 1953); Republic of Vietnam Conflict (2 March 1961 to 28 March 1973), combined with qualifying service in Laos (19 April 1961 to 6 October 1962); Dominican Republic (28 April 1965 to 1 September 1966); Korea on the Demilitarized Zone (4 January 1969 to 31 March 1994); El Salvador (1 January 1981 to 1 February 1992); Grenada (23 October 1983 to 21 November 1983); Joint Security Area, Panmunjom, Korea (23 November 1984); Panama
(20 December 1989 to 31 January 1990); Southwest Asia Conflict (17 January 1991 to 11 April 1991); Somalia (5 June 1992 to 31 March 1994); Afghanistan (Operation Enduring Freedom, from 5 December 2001 to a date to be determined); and Iraq (Operation Iraqi Freedom, from 19 March 2003 to a date to be determined).

18.  Headquarters, USA HRC, Military Awards Branch website lists the unit awards received by units serving in Haiti in support of Operation Uphold Democracy.   This website shows that, at the time of the applicant's assignment to the 47th Field Hospital (Haiti), the unit was cited for award of the Meritorious Unit Commendation by Headquarters, U.S. Army Forces Central Command, Permanent Order 6-2, dated 13 January 1992, as promulgated by Headquarters, Department of the Army, General Orders Number 27 (1994).

19.  Army Regulation 600-8-22, in pertinent part, states that effective 1 March 1961 the Meritorious Unit Commendation was authorized for units and/or detachments of the Armed Forces of the United States for exceptionally meritorious conduct in the performance of outstanding services for at least six continuous months in support of military operations.  

20.  Army Regulation 670-1 (Wear and Appearance of Army Uniforms and Insignia), in pertinent part, states that unit awards are authorized for permanent wear by an individual who was assigned and present for duty with the unit at any time during the period cited or who was attached to and present for duty with the unit for at least 30 consecutive days of the period cited.

21.  Headquarters, U.S. Total Army Personnel Command, Alexandria, Virginia, MILPER Message Number 96-026, announced the eligibility requirements for award of the United Nations Medal (UNM) for United Nations operations in Haiti. The eligibility criteria for award of the UNM requires an individual serve under the operational or tactical control of the United Nations and serve a minimum of 90 consecutive days in the service of the United Nations.  Awards for individuals who served under the multi-national force (MNF) in Haiti and who, at the end of their assignment in the United Nations Mission in Haiti (UNMIH) will not meet the eligibility criteria, remain a national responsibility and are not eligible for award of the UNMIH medal.  Simply operating/working in the United Nations mission area (i.e., Haiti) does not qualify an individual to receive the UNMIH medal.  The UNM is categorized as a non-U.S. service medal and awarded by the Secretary-General of the United Nations.

22.  Army Regulation 600-8-22 provides, in pertinent part, that the Humanitarian Service Medal is awarded to members who distinguished themselves by meritorious direct participation in a Department of Defense approved significant military act or operation of a humanitarian nature.  A service member must be on active duty at the time of direct participation, must have directly participated in the humanitarian act or operation within the designated geographical area of operation and within specified time limits, and must provide evidence that substantiates direct participation.  Table C-1 of Army Regulation 600-8-22 shows that Task Force 180, Task Force 190, and the Multi-National Force Operation UPHOLD/RESTORE DEMOCRACY (10 September 1994 to 31 March 1995 in Haiti) was approved by the Department of Defense as qualifying for award of the Humanitarian Service Medal.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that the diagnosis of an obstructive lung disease was not evaluated prior to the adjudication of his case and, therefore, claims he is entitled to a higher disability rating.  He also contends, in effect, his disease was incurred while he was engaged in extra-hazardous service in Haiti and his permanent disability retirement orders should reflect that the disability is based on a disease received in line of duty as a direct result of armed conflict or by an instrumentality of war.  The applicant further contends that he is entitled to the Combat Medical Badge and other awards for his service with the 47th Field Hospital in Haiti.

2.  The evidence of record shows the applicant was assigned to the 47th Field Hospital while serving in support of the Multi-National Force Operation UPHOLD DEMOCRACY in Haiti when he was medically evacuated to WRAMC.

3.  The evidence of record shows that a test was administered on 14 January 2002, to study, in pertinent part, the applicant's lung volume.  The data revealed a "[f]low volume loop consistent with obstruction."  This document was included in the applicant's medical records and reviewed by both the MEB and PEB. Therefore, the applicant provides no new evidence that this condition was not reviewed and evaluated in the adjudication of his case and that it would have warranted a higher percentage of disability.

4.  There is no evidence of record to show that the Army misapplied either the medical factors involved or the governing regulatory guidance concerning the processing of the applicant's MEB, PEB, the discharge action transferring him to the TDRL or removing him from the TDRL because of permanent physical disability.  Therefore, the applicant is not entitled to correction of his records to show a higher percentage of permanent disability.

5.  The evidence of record shows that the United Nations mission in Haiti
(i.e., Operation UPHOLD/RESTORE DEMOCRACY) was a humanitarian mission and that the applicant served in support of the operation in Haiti.  There is no evidence of record to show that the applicant's disability is based on a disease received in line of duty as a direct result of armed conflict during a war period as defined by 26 USC 104.  Therefore, he is not entitled to correction of his permanent disability retirement orders. 

6.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial creditable evidence to rebut the presumption.  The applicant fails to provide such evidence.  As a result, the applicant's PEB proceedings are presumed proper and equitable.

7.  The evidence of record fails to show that the Combat Medical Badge was authorized for Operation UPHOLD DEMOCRACY.  There is no evidence of record that shows the applicant was awarded the Combat Medical Badge during his military service.  There is no evidence of record showing the applicant was assigned or attached to a medical unit of company or smaller size, organic to an infantry unit of brigade, regimental or smaller size which was engaged in active ground combat.  Moreover, there is no evidence of record showing he served in a qualifying war, conflict, or operation during a period that award of the Combat Medical Badge was authorized.  Therefore, the applicant is not entitled to award of the Combat Medical Badge.

8.  General Orders awarded the applicant's unit the Meritorious Unit Commendation.  Therefore, it would be appropriate to correct his records to show this unit award.

9.  The evidence of record shows that the applicant served in Haiti from on or about 18 January 1995 to 23 February 1995.  There is no evidence of record, and the applicant fails to provide evidence, that shows he served under the operational or tactical control of the United Nations and served a minimum of
90 consecutive days in the service of the United Nations.  Therefore, he is not entitled to award of the United Nations Medal.

10.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 17 June 2002; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
16 June 2005.  The applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.  Although the applicant did not file within the ABCMR's statute of limitations, it is appropriate to waive failure to timely file for award of the Meritorious Unit Commendation.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__LDS __  ___JCR__  ___SWF_  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief and to excuse failure to timely file.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the Meritorious Unit Commendation to his
DD Form 214.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to a higher percentage of disability based on a condition that was not reviewed and evaluated in the adjudication of his case; disease aggravated in line of duty 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; the Combat Medical Badge; and United Nations Medal.




____Linda D. Simmons_____
          CHAIRPERSON




INDEX

CASE ID
AR20060009287
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/04/05
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
20020617
DISCHARGE AUTHORITY
AR 635-40, Paragraph 4-24b(2)
DISCHARGE REASON
Disability, Temporary
BOARD DECISION
GRANT PARTIAL
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
108.0400.0000
2.
107.0113.0000
3.

4.

5.

6.