RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 November 2007
	DOCKET NUMBER:  AR20070012769 


	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.


Ms. Catherine C. Mitrano

Director

Mrs. Nancy L. Amos

Analyst


The following members, a quorum, were present:


Ms. Margaret K. Patterson

Chairperson

Mr. Larry C. Bergquist

Member

Mr. Dale E. DeBruler

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 reconsideration of his earlier request that blocks 10a and 10c of his DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 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 Title 26, U. S. Code, section 104.  

2.  The applicant states that the decision in the original consideration of his case was based on the fact the Medical Evaluation Board (MEB) Narrative Summary (NARSUM) was not available.  He now provides a copy of the NARSUM, his Appeal to the NARSUM, and the Addendum to the NARSUM.  In the NARSUM, Doctor E___ clearly stated the diagnosis of the primary unfitting condition and his professional determination regarding the causality of the condition as being directly related to parachute activity.  The applicant states he appealed the findings, particularly noting that his back and neck problems did not begin in March 1984 but that he had a history of trauma to his lower back and neck throughout his last nine years of service.  That period began in January 1975 when he reported to Fort Bragg, NC for Special Forces training.  At the time he appealed, he was not aware of the “time of war” issue.  Instead of addressing the full scope of time spent performing parachute duty, which began in 1972, he focused on the period spent assigned to jump units.  

3.  The applicant states that Doctor E___ agreed with his (the applicant’s) appeal when he stated “…In the past history that I obtained at the time, he said he’d had trouble with his back for five years.  He now says that this time was nine years.  You may use the figure nine in place of five.”  That statement determines the approximate date of origin of his degenerative disc disease as January 1975.  That was during the Vietnam War era that ended 7 May 1975 as defined by law.  Doctor E___’s agreement was fully supported by the accepted medical principle that repetitive trauma injuries cause degenerative disc disease.

4.  The applicant states, in effect, that since Doctor E___ agreed that the date of origin of his degenerative disc disease was January 1975 the entry in block 8e   of the DA Form 199 was correct and the entry in block 10a was incorrect.  Therefore, an affirmative rendering of block 10a should lead to an affirmative rendering of block 10c.

5.  The applicant provides the 9 attachments listed on the LIST OF ATTACHMENTS.


CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20060010071 on 3 April 2007.

2.  The MEB NARSUM, the applicant’s Appeal to the NARSUM, and the Addendum to the NARSUM are new evidence that will be considered by the Board.

3.  The applicant was commissioned and entered active duty on 13 March 1973.  He was honorably released from active duty on 13 March 1978.  His awards included the Parachutist Badge, the Ranger Tab, the Pathfinder Badge, and the Scuba Qualification Badge.  He enlisted in the Navy and was honorably discharged on 20 December 1979 to accept a commission.  He served on active duty with SEAL Team One.  He was honorably released from active duty on        22 April 1984.  His Navy awards included the Navy Parachutist (badge) and the Special Warfare Qualification (badge).

4.  The applicant was commissioned in the Regular Army on 23 April 1984.

5.  The applicant provided a copy of the MEB NARSUM with the following sections highlighted:  (after the history of his chief complaint noted that the applicant was first seen in the Orthopedic Clinic on 22 August 1984 complaining of recurrent disabling pain in the lower back) “The problem began in March 1984 following a bad parachute landing fall and had not improved materially on treatment”; and “He had neck trouble in the Navy in 1981 when he was a member of the Navy Parachute Team and chute shocks hurt his neck.”  

6.  On 29 May 1985, an MEB referred the applicant to a PEB for diagnoses of degenerative disk disease, cervical and lumbar, symptomatic with moderate degenerative and hypertrophic changes; colles’ fracture, left, old, with residual deformity and limitation of motion of the wrist and forearm; hypertrophic changes, both acromioclavicular (AC) joints, right worse than left, symptomatic; status post (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.

7.  On 31 May 1985, the applicant indicated that he did not concur with the MEB’s findings and recommendation.  He provided his appeal to the MEB’s findings with the following section highlighted:  (after first stating that the entry under History that said his back problem began in March 1984 following a bad parachute landing fall was not correct) “I have a history of trauma to my lower back and neck throughout my last 9 years of military service while assigned to Navy SEALS and Army Special Forces.”

8.  The evaluating physician provided an Addendum to Medical Board, which the applicant has now provided with the following sections highlighted:  (after first stating, “I wish to again state that the problem for which I saw the patient in August 1984 did (emphasis in the original) begin in March 1984”) “In the past history that I obtained at the time, he said he’d had trouble with his back for five years.  He now says that this time was nine years.  You may use the figure nine in place of five” and “From the history, the degenerative disk disease in the neck and back has not stabilized (emphasis in the original) and has probably worsened over the past several years, and may continue….”

9.  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) (MEB 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 MEB diagnoses 5 and 6 were not considered ratable.  The informal PEB recommended that the applicant be permanently retired and rated 30 percent disabled.  The DA Form 199, completed in conjunction with the informal PEB, had negative responses in both blocks 10a and 10c.  Item 8e indicated that the PEB determined the disability was incurred or aggravated in line of duty in time of war or national emergency.  

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

11.  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.  The applicant apparently did not demand a formal hearing after this reconsideration.

12.  Block 10a of the applicant’s DA Form 199 stated, “The member’s retirement is/is not 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 as defined by law.”

13.  Block 10c of the applicant’s DA Form 199 stated, “The disability did/did not result from a combat related injury as defined in 126 U.S.C. 104.”

14.  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.

15.  In the original processing of this case an advisory opinion was obtained from the U. S. Army Physical Disability Agency (USAPDA).  The USAPDA 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 claimed 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 could not be considered to be block 10a, DA Form 199, injuries.

16.  The USAPDA also opined 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 USAPDA recommended disapproval of the applicant’s request to change block 10a of his DA Form 199.  However, the USAPDA stated that since the applicant’s records did 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.”

17.  The USAPDA provided an attachment with its advisory opinion, a fact sheet entitled “Disability Resulting from:  Armed Conflict; Instrumentality of War; and, Conditions Simulating War.”  In pertinent part, the fact sheet stated, “…it has been determined that because of the high injury rate, the extra military equipment carried, the exiting of a military aircraft, and the historical aspects of the origin of the parachute development that the parachute itself will remain classified as a (sic) instrumentality of war.  It also subjects the soldier to a hazard peculiar to the military service and thus becomes an instrumentality in accordance…”

18.  The applicant rebutted the advisory opinion.  He stated that his block 8e of the stated that his disability was incurred “in [line of duty] in time of war or national emergency.”  He pointed out that the PDA did not change this entry when it made its required review of his PEB record of proceedings.  He stated that the attachment to the USAPDA 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.  He then gave examples of the traumas he experienced while parachuting and concluded 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 reached some critical mass.

19.  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 unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  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 the line of duty 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 the line of duty during a period of war as defined by law.  The periods of war as defined in Title 38 U. S. 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.)
20.  Title 26 U. S, 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 requests reconsideration of his earlier request that blocks 10a and 10c of his DA Form 199, dated 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 Title 26, U. S. Code, section 104.  

2.  The applicant bases his request for correction of block 10a on the fact that his NARSUM was amended to indicate he had had trouble with his back for 9 years (i.e., from March 1975, during the official period of the Vietnam War).  He bases his request for correction of block 10c on the fact that an attachment to the USAPDA advisory opinion in his original case 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.

3.  The applicant does not meet the criteria to have block 10a of his DA Form  199 corrected.  Block 10a of the DA Form 199 is a two-part requirement.  The member’s retirement must be 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 as defined by law.”

4.  Even if the fact the applicant’s back condition began in March 1975 is accepted, the condition was not a disability at that time.  He continued to serve successfully in combat arms positions (Navy SEAL Team One and Army Special Forces) for the next 9 years, until a bad parachute landing fall in March 1984 rendered his back condition a disability.  

5.  The fact that block 8e of the applicant’s DA Form 199 indicated his condition was incurred or aggravated in the line of duty in time of war or national emergency is not sufficient to change block 10a.  Block 8e is not the same as block 10a.  Block 8e is only a one-part requirement.  In effect, it is only the same as the second half of the two-part requirement in block 10a.
6.  The applicant’s contention that block 10c of his DA Form 199 should be corrected has merit.  

7.  The USAPDA advisory opinion in the original consideration of the applicant’s case indicated that the applicant’s records documented at least two instances of specific injuries during combat training.  The MEB NARSUM indicated his disability resulted from a bad parachute landing fall.  Based upon the determination that a military parachute will remain classified as an instrumentality of war, block 10c of his DA Form 199 should be corrected to show his disability “did result from a combat related injury as defined in 26 U.S.C. 104.”

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__mkp___  __lcb___  __ded___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant partial amendment of the ABCMR’s decision in Docket Number AR20060010071 dated 3 April 2007.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by correcting block 10c of his DA Form 199, dated 3 September 1985, to show his disability did result from a combat-related injury as defined in Title 16, U. S. Code section 104.

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 correcting block 10a of his DA Form 199, dated 3 September 1985.




_Margaret K. Patterson
          CHAIRPERSON




INDEX

CASE ID
AR20070012769
SUFFIX

RECON

DATE BOARDED
20071115
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
108.07
2.
108.08
3.

4.

5.

6.