IN THE CASE OF:	 

		BOARD DATE:	  2 December 2008

		DOCKET NUMBER:  AR20080013490 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his Medical Evaluation Board (MEBD) be corrected to have it show that his conversion disorder was incurred in line of duty as a direct result of conflict or caused by an instrumentality of war, as defined by 
Title 26, U.S. Code, section 104.

2.  The applicant states that he was a passenger in a HMMWV which was rear-ended by a 2 1/2 ton truck.  Both were military vehicles and he was going to a field training exercise site.  His conversion disorder was a direct result of this accident.

3.  The applicant provides his MEBD, his Physical Evaluation Board (PEB), a chronological record of medical care, and orders removing him from the Temporary Disability Retired List (TDRL).

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 
3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, 
has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military records show that he enlisted in the Regular Army on 9 November 1983, was awarded the military occupational specialty of power generation equipment repairer, and was promoted to pay grade E-6.

3.  On 11 January 1994, an MEBD convened and determined that the applicant had conversion disorder, single episode, manifested by non-intentional right-sided continuing tremor, pseudo seizures, and torticollis, with no organic etiology to explain the symptoms.  The MEBD also determined the applicant had status post three closed head injuries, once in 1985 when he walked into an air conditioning unit, once in 1992 when he was rear ended in a motor vehicle accident, and in June 1993 when he was rear ended by a 2 1/2 ton truck while a passenger in a HMMWV.  Other medical conditions noted by the MEBD were hepatitis C and patellofemoral pain syndrome, status post patellar fracture.  The MEBD referred the applicant to a PEB.

4.  On 29 August 1994, a PEB convened which determined that the applicant was physically unfit due to conversion disorder with right-sided tremor, pseudo seizures, torticollis, and major depression developing due to failure of the disorder to improve (30 percent disabled); and status post closed head injuries multiple, mild, and moderate cognitive dysfunction (10 percent disabled).  The PEB recommended that the applicant be placed on the TDRL rated 40 percent disabled.  The PEB added that the applicant's retirement was 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 the line of duty during a period of war as defined by law, and the applicant's disability did not result from a combat-related injury as defined in Title 26, U.S. Code, section 104.

5.  The applicant concurred with those findings and recommendation and waived a formal hearing of his case.

6.  Accordingly, on 27 October 1994, the applicant was honorably released from active duty and placed on the TDRL the following day.

7.  Conversion disorder is a condition in which a person has neurologic symptoms that cannot be explained.  Conversion disorder symptoms may occur because of emotional distress or psychological problems.  Symptoms usually begin suddenly after a stressful experience.  People are more at risk for a conversion disorder if they also have an underlying medical illness, a dissociative disorder, or personality disorder.  MEDLINE PLUS.gov

8.  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 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.  

9.  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. 

10.  Army Regulation 635-40 defines instrumentality of war as a device designed primarily for military service and intended for use in such service at the time of the occurrence of the injury.  It may also be a device not designed primarily for military service if use of or occurrence involving such a device subjects the individual to a hazard peculiar to military service.  This use or occurrence differs from the use or occurrence under similar circumstances in civilian pursuits.  
There must be a direct causal relationship between the use of the instrumentality of war and the disability must be incurred incident to a hazard or risk of the service.



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his conversion disorder should have been determined to have been caused by an instrumentality of war.

2.  In this regard, there is no evidence to show that the applicant's conversion disorder was caused by his HMMWV being hit by a 2 1/2 ton truck.  To the contrary, a conversion disorder is a condition in which a person has neurologic symptoms that cannot be explained.  Conversion disorder symptoms may occur because of emotional distress or psychological problems.  

3.  In addition, neither a HMMWV nor a 2 1/2 ton truck is designed primarily for military service.

4.  As such, there is no basis for correcting the applicant's records to show his conversion disorder was caused by an instrumentality of war.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X_____  ___X____  ___X___  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.



      __________X____________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont)                                         AR20080013490



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ABCMR Record of Proceedings (cont)                                         AR20080013490



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