RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  3 May 2007
	DOCKET NUMBER:  AR20060013654 


	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. Michael J. Fowler

Analyst

The following members, a quorum, were present:


Mr. Richard T. Dunbar

Chairperson

Mr. Michael J. Flynn

Member

Ms. Rose M. Lys

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 DA Form 199 (Physical Evaluation Board (PEB) Proceedings) dated 1 November 1976 be corrected to reflect that his disability retirement is based on a disability resulting from injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war.

2.  The applicant states, in effect, that the DA Form 199 used during his PEB evaluation is outdated.  He further states at the time that he was injured during a training exercise the Vietnam era was not considered a war that ended on 7 May 1975.  He states that since then the Vietnam era is considered a war.  The applicant continues what has also changed is that training for war is now considered as an instrumentality of war.

3.  The applicant states that the current DA Form 199 "have 3 blocks to choose from which make it easer to determine one status.  The period of war has been updated/changed to include the Vietnam era as a period of war and training for war is now considered an instrumentality of war.  The old froms (sic) are ambiguous and a changed (sic) was made by the army to resolve this issue."

4.  The applicant further states that due to an interpretation within his personnel office that the Vietnam era is not considered a period of war his service computation date for leave accrual has been changed and he has been penalized several hours of annual leave.  He continues that his personnel office recognizes that he was injured in the line of duty during a period of war, but will not recognize that he was injured by an instrumentality of war.  The applicant concludes that not until recently did he find out that the Army made the determination that a training exercise that simulates a war is considered as an instrumentality of war, but his personnel office refuses to act on these findings and will not make any changes to reinstate his leave until his records have been corrected.

5.  The applicant provides four pages from Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) dated 8 February 2006 and a one-page internet excerpt concerning Title 26, United States Code, Section 104, Subsection 104(b)(3) (Compensation for Injuries or Sickness).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 20 December 1976.  The application submitted in this case is dated 
25 September 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 Regular Army on 31 October 1973 and successfully completed basic training and advanced individual training.  He was awarded military occupational specialty 63H (Automotive Repairman).

4.  The applicant arrived at Fort Carson, Colorado and was assigned to 
C Company, 704th Maintenance Battalion, on or about 18 September 1974, where he performed duties as an automotive repairman.

5.  A DA Form 2173 (Statement of Medical Examination and Duty Status) shows that the applicant was injured after he fell from a tree on a training exercise while installing a camouflage net over a vehicle on 17 March 1975.  The injury was considered to have been incurred in the line of duty.

6.  A Medical Evaluation Board (MEB) Narrative Summary indicates the applicant was evaluated on 9 August 1976, at which time he was diagnosed with (1) traumatic arthritis of the right knee with a mechanical block, moderately severe and (2) post-knee reconstruction with repair of anterior cruciate ligament, medial meniscectomy, and Fenton procedure.

7.  The Narrative Summary indicated that it was the recommendation of the Board that the applicant be separated from the service as he was unfit for further service in accordance with Army Regulation 40-501, chapter 3-14(2), arthritis due to trauma when surgical treatment failed.

8.  On 23 August 1976, an MEB approving authority approved the board finding and recommendation and referred the applicant to a PEB for diagnoses of: (1) traumatic arthritis of the right knee with a mechanical block, moderately severe and (2) post-knee reconstruction with repair of anterior cruciate ligament, medial meniscectomy, and Fenton procedure.  The applicant indicated that he did not desire to continue on active duty.

9.  On 1 November 1976, a PEB considered the applicant's case.  The PEB determined that the impairment of knee, right, pain and limitation of motion to 
15 degrees extension and 19 degrees flexion following knee reconstruction; rated as severe impairment of knee (medical board 1, 2) and that the applicant's functional limitations in maintaining ambulation and agility, caused by physical impairments, made him unfit to perform the duties with a 30 percent disability rating.

10.  The PEB also made the recommended finding in section 10 of the DA Form 199 that the applicant's retirement was "not based on disability resulting from injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war incurred in the line of duty during a period of war defined by law."  The applicant was counseled, and he concurred in the finding and recommendations of the PEB and waived formal hearing of his case. On 17 November 1976, the findings and recommendations of the PEB were approved.

11.  The applicant was honorably discharged on 20 December 1976 by reason of physical disability and placed on the Retired List, rated 30 percent disabled, the following day after completing 3 years, 1 month, and 29 days of creditable active service with no time lost.

12.  The applicant provides four pages of the current Army Regulation 635-40, in which two pages covering paragraph 4-19 (on who has the authority to approve in line of duty-not due to own misconduct determinations for training accidents, to include maneuvers and physical training) are highlighted.  He further highlighted the sub-paragraph covering armed conflict-instrumentality of war and disability compensation excluded from gross pay for combat-related injuries.

13.  The applicant provides a one-page internet excerpt concerning Title 26, United States Code, Section 104.  This document is used as a cross reference to Army Regulation 635-40 for "combat-related injury" under conditions simulating war.

14.  Army Regulation 635-40, paragraph 4-13k of the version in effect at that time, stated that in making a determination whether a disability should be classified as being incurred during armed conflict or due to an instrumentality of war, the following was considered:  A member whose retirement or separation from the service was based on 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, would have the block "is" checked in item 10 of the DA Form 199.

	(1) Armed conflicts. A disability could be considered a direct result of armed conflict (app A [Instrumentality of war]) if a device primarily designed for military service and intended for use in such service at the time of the occurrence of the injury or a device not designed primarily for military service, but the use of or occurrence involving such device subjected the individual to a hazard peculiar to military service as distinguished from such use or occurrence under similar circumstances in civilian pursuits.
		
		(a) 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, or while interned as a prisoner-of-war or detained against his will in the custody, of a hostile or belligerent force or while escaping or attempting to escape from such prisoner-of war or detained status, and
		
		(b) A direct causal relationship exists between the armed conflict or the incident or operation and the disability.  A determination that a disability resulted from injury or disease received in line of duty as a direct result of armed conflict would be appropriate only when it was also determined that the disability so incurred in itself rendered the member physically unfit.

	(2) Instrumentality of war.  A determination that a disability was caused by an instrumentality of war and incurred in line of duty would be appropriate only when it was also determined that the disability so incurred in itself rendered the member physically unfit and was incurred during one of the periods of war as defined by law, i.e.:

		(a) World War II: 
		
		   1. Period beginning 7 December 1941 and ending 31 December 1946.

		   2. Any period of continuous service performed after 31 December 1946 and before 26 July 1974, if such period began before 1 January 1947.
 
		(b) Korean War.  The period beginning 27 June 1950 and ending 
31 January 1955.

		(c) Vietnam Era.  The period beginning 5 August 1964 and ending on 7 May 1975.  (It should be noted that the "Dominican Intervention" occurred during this period.)

15.  Army Regulation 635-40, paragraph 4-19j of the version currently in effect, 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 United States Code Sections 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.)

16.  Army Regulation 635-40 currently in effect states conditions simulating war include, but are not limited to, the following activities:  performance of tactical exercises such as a squad or platoon in the assault; airborne operations; leadership reaction courses; grenade and live fire weapons practice; bayonet training; hand-to-hand combat training; repelling; and negotiation of combat confidence and obstacle courses.

17.  Title 26, United States Code Section 104, discusses the taxability of compensation for injuries or sickness.  Subsection 104(b)(3) provides special rules for combat-related injuries.  It defines combat-related as an injury that was a direct result of armed conflict, incurred while engaged in extrahazardous service, or incurred under conditions simulating war.

DISCUSSION AND CONCLUSIONS:

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

2.  Evidence of record shows that the applicant was injured after he fell from a tree on a training exercise while installing a camouflage net.  The applicant might have been preparing for a simulated war at that time.  However, there is insufficient evidence to show that he was injured during actual simulated combat. It appears under today's standards that the applicant's injury would not fall under conditions simulating war.  Therefore, the PEB’s decision that the applicant's injury was not a direct result of armed conflict or caused by an instrumentality of war stands.

3.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 20 December 1976; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
19 December 1979.  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

__RTD __  __MJF __  ___RML_  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.




____ Richard T. Dunbar __
          CHAIRPERSON




INDEX

CASE ID
AR20060015654
SUFFIX

RECON

DATE BOARDED
3 MAY 2007
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
MR. SCHWARTZ
ISSUES         1.
108.0800.0000
2.

3.

4.

5.

6.