RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  3 April 2007
	DOCKET NUMBER:  AR20060010071 


	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.


	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 DA Form 199, Physical Evaluation Board (PEB) Proceedings, issued on 3 September 1985, be corrected to show that his retirement is based on a disability resulting from injury or disease received in line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred in line of duty during a period of war as defined by law; and that his disability resulted from a combat related injury as defined in 26 US Code, Section 104.  The applicant requests this correction be accomplished by changing the entries in Blocks 10a and 10c of the DA Form 199.

2.  The applicant states in an executive summary that in May 2005, he became aware that because Blocks 10a and 10c of his DA Form 199 improperly show that his retirement is not based on a disability resulting from injury or disease received in line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred in line of duty during a period of war as defined by law; and that his disability did not result from a combat related injury as defined in 26 US Code, Section 104, he has been denied the ability to buy back his active duty service and count those years for his Federal Employee Retirement System (FERS) retirement without forfeiting retirement pay.  The applicant then provides the definition of instrumentality of war taken from Army Regulation 635-40, provides a quick synopsis of the types of training he performed as a special operations officer, and concludes that “each of these combat related duties produced physical trauma that collectively resulted in the degenerative arthritic condition that left me physically unfit for continued service.”

3.  In a 22 page typewritten attachment to the applicant’s DD Form 149, he chronicles his military history.  In this history he states that “Shortly after arriving at IOAC [o/a 23 April 1984], I began to experience a significant amount of pain in my joints, specifically the lower back, neck and shoulders.  I had difficulty with intermittent joint pain for years previously, but this was different.”

4.  in the 22 page attachment there is a question and answer section.  In that section the applicant describes his duties during various exercises, how those exercises were combat related and extra hazardous, and how he believes those duties caused his disability.  The applicant also quotes medical references on osteoarthritis.  The applicant concludes that since the majority of his duties were spent in continuous training involving repetitive impact traumas, his disability did result from a combat related injury as defined in 26 US Code, Section 104, and 

his retirement is based on a disability resulting from injury caused by an instrumentality of war and incurred in line of duty during a period of war as defined by law.

5.  The applicant also contends that neither the Physical Evaluation Board Liaison Officer (PEBLO) nor his PEB counsel followed proper procedures in processing his case.  In pertinent part, the applicant states that the ramifications of block 10 being marked negatively was not explained to him.

6.  The applicant provides 27 attachments which he lists within his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 8 October 1985.  The application submitted in this case is dated 18 July 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’s records show that he was commissioned and entered active duty on 13 March 1973.  He was awarded the National Defense Service Medal, Armed Forces Expeditionary Medal, Parachutist Badge, Ranger Tab, Pathfinder Badge, and Scuba Qualification Badge.  He was honorably released from active duty on 13 march 1978 as a captain.

4.  He enlisted in the Navy as a cadet and was honorably discharged on 20 December 1979 in order to accept a commission.  He continued to serve in the Navy on active duty and was assigned to Seal Team One.  He was honorably released from active duty as a lieutenant on 22 April 1984.  His DD Form 214 shows that he was given the additional awards of the Nary Parachutist and Special Warfare Qualification.

5.  He was commissioned in the Regular Army on 23 April 1984. 


6.  While serving as a Regular Army captain, on 20 May 1985 he was determined medically disqualified by a Medical Evaluation Board (MEBD) which determined he had degenerative disk disease, cervical and lumbar, symptomatic with moderate degenerative and hypertrophic changes; colles’ fracture, left, old, with residual deformity and limitation of motion or the wrist and forearm; hypertrophic changes, both AC joints, right worse than left, symptomatic; S/P ulnar nerve transplantation for tardy ulnar palsy, left, with residual hyperthesia ulnar nerve distribution, left; high frequency hearing loss, bilateral; and mitral valve prolapse.  The Narrative Summary (NARSUM) which was used by the MEBD in making its findings was not provided by the applicant.  The MEBD referred the applicant to a PEB.

7.  On 22 June 1985, an informal PEB convened and determined that the applicant was physically unfit due to degenerative arthritis, 2 or more major joints or groups of minor joints with incapacitating exacerbations (20 percent disabling) (MEBD diagnoses 1, 2, and 3); and ulnar nerve, left, non-dominant, paralysis of, incomplete, mild (10 percent disabling) (MEBD diagnosis 4).  The PEB determined that MEBD diagnoses 5 and 6 were not considered ratable.  The informal PEB recommended that the applicant be permanently retired, rated 30 percent disabled.  The DA Form 199 completed in conjunction with the informal PEB had negative responses in both Blocks 10a and 10c.

8.  The applicant nonconcurred with those findings and recommendation and demanded a formal hearing.

9.  On 3 September 1985, an informal PEB reconsidered the applicant’s case and increased his disability rating to 40 percent.  The DA Form 199 completed in conjunction with the reconsidered informal PEB also had negative responses in both Blocks 10a and 10c.

10.  The applicant was honorably released from active duty on 8 October 1985 by reason of physical disability and placed on the Retired List, rated 40 percent disabled, the following day.

11.  In the processing of this case an advisory opinion was obtained from the Physical Disability Agency (PDA).  The PDA stated that the applicant did not have any unfitting conditions which could be termed as a direct result of armed conflict.  The applicant himself only claims training injuries.  The injuries claimed 


to have been sustained by an instrumentality of war were not sustained during any recognized period of war.  Accordingly, the unfitting conditions cannot be considered to be Block 10a, DA Form 199, injuries.

12.  The PDA continued that possible cumulative type injuries, that might result in some sort of degenerative disease, are generally not considered combat related because, without specific documented injuries, it is only speculative as to whether such activities (such as multiple parachute jumps) actually caused a Soldier’s specific unfitting condition.  Therefore, the PDA recommended disapproval of the applicant’s request to change Block 10a of his DA Form 199.  However, the PDA stated that since the applicant’s records do document at least two instances of specific injuries during combat training, he could have been entitled to a Block 10c, DA Form 199 entry of “did result from a combat related injury as defined in 26 USC 104.”

13.  The applicant was provided a copy of this advisory opinion and given the opportunity to respond.  The applicant submitted a rebuttal in which he states that his DA Form 199, Block 8e, stated that his disability was incurred “in [line of duty] in time of war or national emergency.”  He points out that the PDA did not change this entry when it made its required review of his PEB record of proceedings.

14.  The applicant adds that he attended Airborne and Ranger schools, was on parachute duty in Korea and attended Special Forces School during the Vietnam War era.  He states that the attachment to the PDA advisory opinion contained a passage which explained that because of the exceptionally hazardous nature of military parachuting, the parachute itself will remain classified as an instrumentality of war.

15.  The applicant then gives additional examples of the traumas he experienced while parachuting and concludes that because degenerative arthritis is the result of repetitive impact injuries and traumas, it would be anticipated that the earlier impact injuries and traumas, although significant, would not result in injuries becoming sufficiently debilitating to warrant medical attention (and therefore generating medical documentation) until the cumulative damage reaches some critical mass.





16.  Army Regulation 635-40, paragraph 4-19j states that in making a determination whether a disability should be classified as being incurred during an armed conflict or due to an instrumentality of war, the following must be considered: 

	(1) The disability resulted from injury or disease received in LD as a direct result of armed conflict and which itself renders the Soldier unfit.  A disability may be considered a direct result of armed conflict if—

		(a) The disability was incurred while the Soldier was engaged in armed conflict, or in an operation or incident involving armed conflict or the likelihood of armed conflict; while the Soldier was interned as a prisoner of war or detained against his will in the custody of a hostile or belligerent force; or while the Soldier was escaping or attempting to escape from such prisoner of war or detained status.

		(b) A direct causal relationship exists between the armed conflict or the incident or operation, and the disability.

	(2) The disability is unfitting, was caused by an instrumentality of war, and was incurred in LD during a period of war as defined by law.  The periods of war as defined in 38 USC 101 and 301 are shown below: (The statute does not
include the action in Grenada).

		(a) World War II.  The period beginning 7 December 1941 and ending 31 December 1946 and any period of continuous service performed after 31 December 1946 and before 26 July 1947 if such period began before 1 January 1947.

		(b) Korea.  The period beginning 27 June 1950 and ending 31 January 1955.

		(c) Vietnam.  The period beginning 5 August 1964 and ending 7 May 1975.  (The “Dominican Intervention” occurred during this period.)

17.  Title 26 US Code, Section 104 states, in pertinent part, that 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. 


DISCUSSION AND CONCLUSIONS:

1.  The applicant argues that his retirement is based on a disability resulting from injury or disease received in line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred in line of duty during a period of war as defined by law.  Therefore, block 10a of his DA Form 199 should be marked in the affirmative.

2.  The wording of this entry, as well as Army Regulation 635-40, leaves no doubt that this entry is to be marked in the affirmative only if a disability is incurred during a recognized time of war.  While the applicant served during a recognized period of war (Vietnam), there is no evidence or indication that the disabilities which formed the basis of his retirement were incurred during the period of war.  

3.  The applicant’s argument that his osteoarthritis had its origins during his training during the Vietnam War Era has been noted.  However, there is no evidence to support that contention.  The Board will not change a military record without some form of documentary evidence to show that an error or injustice occurred.

4.  It would appear that the applicant’s DA Form 199, Block 8e, erroneously stated that his disability was incurred in line of duty in time of war or national emergency.  The Board will not correct a military record based on an erroneous entry.

5.  As such, there is no basis for correcting Block 10a to read in the affirmative.

6.  The applicant also argues that his disability resulted from a combat related injury as defined in 26 US Code, Section 104.  Therefore, Block 10c of his DA Form 199 should be marked in the affirmative.

7.  In this regard, based on the nature of the applicant’s duties, his disability may very well have been incurred as a result of extra hazardous service, or under conditions simulating war; or the disability could have been caused by an instrumentality of war.  However, the applicant did not provide his MEBD’s NARSUM.  A NARSUM chronicles a Soldier’s medical conditions, to include the medical condition’s inception and progression.  Without the NARSUM there is no indication of how the applicant’s rated disabilities were incurred or whether they were aggravated by specific events.  Therefore, there is insufficient documentation in which to grant this portion of the applicant’s request. 

8.  The advisory opinion by the PDA has been carefully considered.  However, while there is evidence that the applicant was treated for training accidents, there is no evidence that those injuries caused his disabilities.

9.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 8 October 1985; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 7 October 1988.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____sap_  ___ji____  ____qas__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.




_________John Infante_____________
          CHAIRPERSON



INDEX

CASE ID
AR20060010071
SUFFIX

RECON
20070403
DATE BOARDED
YYYYMMDD
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.

2.

3.

4.

5.

6.