RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  29 April 2008
	DOCKET NUMBER:  AR20070015019 


	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.  




Director



Analyst

      The following members, a quorum, were present:




Chairperson



Member



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, that his disability be changed from a noncombat-related injury to a combat-related injury.  He also requests, in effect, that his disability rating be increased to 30 percent and that he be permanently retired.

2.  The applicant states that he was involved in fierce combat during the initial invasion into Iraq which directly resulted in his Post Traumatic Stress Disorder (PTSD). 

3.  The applicant provides a copy of his Physical Evaluation Board (PEB) proceedings; two letters of support addressed to the President of the PEB; his award certificate for the Bronze Star Medal; and two DA Forms 638 (Recommendation for Award) for award of the Bronze Star Medal and the Army Commendation Medal (First Oak Leaf Cluster).

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 17 October 1996.  At the completion of basic training and advanced individual training, he was awarded military occupational specialty 96U (unmanned aerial vehicle operator).  He served in Iraq from 28 December 2002 through 25 April 2003.

2.  The applicant was awarded the Bronze Star Medal on 8 May 2003 for his exceptionally meritorious performance of duty during Operation Iraqi Freedom from 19 March 2003 to 31 May 2003.  The citation on his award certificate states in part, “HIS OUTSTANDING DEDICATION TO DUTY DURING GROUND COMBAT IN IRAQ CONTRIBUTED TO THE OVERWHELMING SUCCESS OF VICTORY CORPS…”

3.  He was promoted to sergeant first class (SFC), E-7 on 1 October 2003.

4.  On 13 August 2004, the applicant was evaluated by a Medical Evaluation Board (MEB) and was diagnosed as having PTSD.  The MEB proceedings indicate that the approximate date of origin as August 1997; that the condition was incurred while entitled to base pay; and that his condition was permanently aggravated by service.  The applicant concurred with the board’s findings and recommendation. He was referred to a PEB.

5.  On 1 September 2004, an informal PEB found the applicant unfit for military service due to PTSD with a combined disability rating of 10 percent.  The PEB recommended that the applicant be separated with severance pay.  The applicant concurred with the recommendations and waived a formal hearing of his case.  The PEB proceedings indicated that the applicant’s disability did not result from a combat-related injury as defined in Title 26, United States Code, Section 104.

6.  The applicant provided a letter of support, dated 24 September 2004, from a former captain.  The individual described the applicant as a competent noncommissioned officer whose proficient and expert knowledge of unmanned aerial vehicle operations was a great asset to the U.S. Army during Operation Iraqi Freedom.  The former captain stated that the applicant’s sleep condition was not present during the several weeks he slept on the lower bunk beneath him at Camp Doha, Kuwait.  He stated the applicant was attached to the 2nd Brigade, 3rd Infantry Division during the initial attacks.  He verified that the applicant was embedded in a unit that was involved in fierce direct fire engagements with Irregular Iraqi Regime Forces.  

7.  The applicant provided a letter of support, dated 27 September 2004, from his former commander during Operation Iraqi Freedom.  The commander stated that the applicant was in close proximity to the fighting during the initial offensive operations.  The applicant was attached to one of the lead brigades of the 3rd Infantry Division and was part of the unit that engaged in some of the fiercest fighting with Iraqi forces during the early stages of combat.  The commander stated that the intensity of the operations and fighting was extremely stressful and put a strain on all of his unit’s forces as they supported the attack in Iraq.  In addition, the commander stated that the applicant’s medical problems were the result of his service in combat.  He verified the fact that the intensity and operational tempo of unmanned aerial vehicle operations placed extreme strain and stress on the Soldiers and equipment.  

8.  The applicant was honorably discharged on 15 October 2004 based on physical disability with severance pay.  He had completed 7 years, 11 months, and 29 days of active military service.  

9.  On 9 March 2005, the PEB findings administratively corrected in items 10a and 10c to show the applicant’s retirement was 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 to show the disability did result from a combat-related injury as defined in Title 26, United States Code, section 104.

10.  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.  

11.  Army Regulation 635-40, paragraph 4-19k(1)(b) states that within the meaning of Title 26, United States Code, Section 104, combat-related injuries cover those disabilities attributable to the special dangers associated with armed conflict or the preparation or training for armed conflict.  

12.  Army Regulation 635-40 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.  

13.  Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.  Section 1212 provides that a member separated under Section 1203 is entitled to disability severance pay.

14.  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. 

15.  Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) code 9411, PTSD, gives a percentage rating of 10 percent when there is emotional tension or other evidence of anxiety productive of mild social and industrial impairment.  

16.  VASRD code 9411gives a percentage rating of 30 percent when there is definite impairment in the ability to establish or maintain effective and wholesome relationships with people.  The psychoneurotic symptoms result in such reduction in initiative, flexibility, efficiency and reliability levels as to produce definite industrial impairment.

DISCUSSION AND CONCLUSIONS:

1.  A 1 September 2004 informal PEB evaluated the applicant and found him unfit for military service due to PTSD with a combined disability rating of 10 percent.  He concurred with the findings.  As a result, the applicant was discharged from active duty on 15 October 2004 under the provisions of Army Regulation 635-40, paragraph 4-24b(3) based on physical disability with severance pay.  

2.  There is insufficient evidence to show the applicant’s disability was improperly rated by the PEB or that his separation with severance pay was not in compliance with law and regulation.  Therefore, there is no basis for increasing his disability rating from 10 percent to 30 percent.  

3.  The applicant’s informal PEB was administratively corrected on 9 March 2005 to show his retirement was based on disability from injury or disease received in the line of duty and to show the disability resulted from a combat-related injury.  A copy of the 9 March 2005 administrative correction will be provided to the applicant.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX_     __XXX __  _XXX___  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

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.




      ________XXX___________
                CHAIRPERSON
ABCMR Record of Proceedings (cont)                                         AR20070015019


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET, 2ND FLOOR
ARLINGTON, VA  22202-4508