IN THE CASE OF:	  

		BOARD DATE: 	        28 May 2009

		DOCKET NUMBER:  AR20090000537 


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, in effect, that his disability retirement orders be corrected to show his disability resulted from a combat related injury as defined by law.

2.  The applicant states he performed airborne operations for approximately 15 years and that the whole medical process overlooked this training and focused on two rear-end automobile accidents.  He adds that in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-19k, a Soldier may be performing extra hazardous service even if not directly engaged in combat.  

3.  The applicant provides a copy of Orders C-01-990021, issued by the U.S. Army Human Resources Command, St. Louis, MO, on 13 January 2009; DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 2 October 2008; DA Form 3947 (Medical Evaluation Board Proceedings), dated 21 August 2008; DA Form 2166-7 (Noncommissioned Officer (NCO) Evaluation Report) for the periods from 200004 thru 200011, 200012 thru 200111, 200112 thru 200211, and from 200212 thru 200311; DA Form 1307 (Individual Jump Log), dated on miscellaneous dates throughout his military service; and voluminous copies of various medical reports, records, clinical charts, progress reports, consults, outpatient records, laboratory findings, and several other medical-related documents, dated on miscellaneous dates throughout his military service in support of his request. 


CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show he initially enlisted in the Regular Army for a period of 4 years on 12 August 1987.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 75C (Personnel Management Specialist) which was later re-designated MOS 42A (Human Resources Specialist).  

2.  The applicant’s records also show he completed the Basic Airborne Course on 8 June 1990 and executed a 3-year reenlistment in the Regular Army on 9 July 1991 and a 2-year reenlistment on 12 August 1993.  He was honorably discharged on 12 August 1995.  The DD Form 214 he was issued shows he completed 8 years and 1 day of creditable active military service.

3.  Effective 13 August 1995, the applicant executed a 3-year enlistment in the U.S. Army Reserve (USAR).  He was subsequently ordered to active duty in an Active Guard Reserve (AGR) status and was assigned to the 360th Civil Affairs Brigade, Columbia, SC.  He was promoted through the ranks to staff sergeant on 1 November 2000.

4.  On 29 June 2001, the applicant executed a 6-year reenlistment in the USAR and was ordered to AGR duty for the duration of his reenlistment period.  He was promoted to sergeant first (SFC)/E-7 on 1 October 2004 and executed an indefinite reenlistment in the USAR on 4 May 2007.

5.  A Standard Form (SF) 502-E (Medical Record Report), dated 20 August 2008 shows that on 8 and 12 August 2008, the applicant complained of neck pain, low back pain, and bilateral foot pain.  He was examined at General Leonard Wood Army Community Hospital (GLWACH), Fort Leonard Wood, MO.  

	a.  the attending physician provided a history of the applicant's illness as follows:

		(1)  with respect to his neck, the applicant had been involved in two car accidents in the early 1990s and in 2005.  He had isolated neck pain with pinching sensation;

		(2)  with respect to the low back pain, the applicant reported insidious onset starting after he began jumping.  He had tightness around his lumbar spine and on an average his low back pain was rated a 2 out of 10 and with prolonged lifting his pain could escalate to a 7 out of 10.  His pain had been treated with medications and he had a physical profile in the past, but he had no formal treatment; and
		(3)  with respect to his feet, the applicant experienced pain on and off since the 1990s.  He had been diagnosed with bilateral planter fasciitis and his pain was well controlled until 2006.  He then went on complete rest, refraining from any kind of running or jumping; however, he continued to have significant bilateral foot pain; 

	b.  the attending physician indicated the applicant was determined to meet retention standards of Army Regulation 40-501 (Standards of Medical Fitness) at that time and did not have any disqualifying findings within his physical examination except that associated with the intractable pain with his feet.  However, the applicant had not received complete treatment and desired to be considered for possible surgical intervention for his bilateral planter fasciitis.  The physician further recommended placing the applicant on a temporary profile for his foot condition and a permanent profile for his cervical spine condition; and

	c.  in the clinical recommendation, the attending physician recommended the applicant be prescribed a trial of physical therapy for both his cervical and lumbar spine and that he (the applicant) would make an excellent candidate for physical therapy.  The attending physician also recommended referral to an orthopedic foot and ankle surgeon in consideration for surgery to his planter fasciitis as he had longstanding chronic planter.  Once the surgery had been performed, if he continued to have activity limiting pain that would interfere with his MOS, he should be evaluated by a medical evaluation board (MEB); however, the physician did not recommend a MEB at that time.  

6.  On 21 August 2008, a MEB convened at Fort Leonard Wood, MO, and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant’s medical conditions of cervical spine pain, low back pain, and bilateral planter fasciitis rendered him unable to fulfill the requirements of his grade and MOS.  The MEB recommended that he be referred to a PEB.  The applicant agreed with the MEB’s findings and recommendations and indicated that he desired to continue on active duty. 

7.  On 2 October 2008, an informal PEB convened at Fort Lewis, WA, and found the applicant's medical conditions prevented him from performing the duties required of his grade and specialty and determined that he was physically unfit due to bilateral planter fasciitis and chronic cervical spine pain.  The applicant was rated under the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) and was granted a 20 percent disability rating for codes 5399 and 5310 (bilateral planter fasciitis) and a 10 percent disability rating for codes 5299 and 5243 (chronic cervical spine pain).  The PEB also considered his low back pain but noted he had normal non-painful range of motion and the symptoms did not restrict his job performance; therefore the PEB did not find it unfitting and did not rate it.  The PEB recommended that the applicant be placed on the permanent disability retired list (PDRL) with a combined rating of 30 percent. 

8.  Item 10 of the DA Form 199 states the following:  Item 10(A) “The Soldier's retirement is 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 Item 10(C) “The disability did not result from a combat related injury as defined in 26 U.S.C. 104."

9.  On 6 October 2008, the applicant indicated that he did not concur with the PEB’s findings and recommendation and indicated that he desired a formal hearing of his case.  He also requested an appointed counsel represent him.  Accordingly, a formal hearing of his case was scheduled for 29 October 2008.

10.  On 28 October 2008, and subsequent to discussing his case with his appointed counsel, the applicant withdrew his demand for a formal PEB hearing and indicated that his request was based upon the PEB’s decision to rate his bilateral planter fasciitis at 20 percent (right foot at 10 percent and left foot at 10 percent) and chronic cervical spine due to cervical strain at 10 percent for a combined rating of 30 percent.

11.  On 11 December 2008, by memorandum, the applicant withdrew his continuance on active duty request and indicated that on 1 February 2009 he would obtain 20 years of creditable active service and would therefore like to retire on 1 March 2009 which would allow him to use his accrued leave and permissive temporary duty.  

12.  Accordingly, on 13 January 2009, the U.S. Army Human Resources Command, St. Louis, MO, published Orders C-01-990021, releasing the applicant from his assignment and duty effective 17 March 2009 and placing him on the retired list in the rank/grade of SFC/E-7 effective 18 March 2009.  The orders also stated the applicant’s disability did not result from a combat-related injury as defined in Title 26, U.S. Code (USC), section 104.

13.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was honorably retired in accordance with paragraph          4-24B(1) of Army Regulation 635-40, by reason of permanent disability.

14.  The applicant submitted copies of various medical reports, records, clinical charts, progress reports, consults, outpatient records, sick call slips, laboratory findings, and several other medical-related documents, dated on miscellaneous dates throughout his military service.  He highlighted all documents that contained the word jump, airborne, airborne operations, and parachutes.

15.  The applicant also submitted copies of his NCO evaluation reports as well as his individual jump log to highlight his airborne experience and various jumps throughout his military service.

16.  Army Regulation 635-40 establishes the Army physical disability evaluation system (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.  

17.  Paragraph 4-19 provides for entries on the DA Form 199.  It states, in pertinent part that the entries made on the DA Form 199, blocks 10B and 10C, concern disability compensation excludable from gross income.  In block 10C, the board will record its determination of whether the injury was combat-related as defined by Title 26, USC. section 104.

18.  Army Regulation 635-40 states, in pertinent part, that a disability may be considered a direct result of armed conflict if it 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; if a direct causal relationship exists between the armed conflict or the incident or operation and the disability; or if the disability which is unfitting was caused by an instrumentality of war and was incurred in line of duty during a period of war.  A determination that a disability was caused by an instrumentality of war and incurred in line of duty will be appropriate only when it is also determined that the disability so incurred in of itself renders the member physically unfit and the injury was incurred during one of the periods of war as defined by law.

19.  Army Regulation 635-40 states the phrase “instrumentality of war” refers to a device primarily designed 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.
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 contends that his retirement orders should be corrected to show his disability resulted from a combat-related injury as defined by law.

2.  The applicant’s records show that he was involved in two car accidents during his military service.  In August 2008, he complained of neck pain, low back pain (which began after he started jumping), and bilateral foot pain and underwent a physical examination.  His records were subsequently reviewed by a MEB that referred him to a PEB.  The PEB determined the applicant's medical conditions prevented him from performing the duties required of his grade and specialty and recommended his placement on the PDRL.  He concurred with this recommendation.  The PEB also determined that the applicant’s disability was not combat-related.  It is this determination which formed the basis for the entry on his retirement orders, which the applicant requested to be corrected.

3.  The PEB’s determination appears to be proper and equitable.  The PEB determined that the applicant's disabling conditions were those of bilateral planter fasciitis and chronic cervical (upper back) spine pain, neither of which was related to his airborne jumps.  The PEB noted that the symptoms of his low back pain, which was related to his airborne jumps, did not restrict his job performance and therefore was not found to be unfitting.

4.  Item 10 of the DA Form 199 that was completed at the time of the PEB process states the applicant's separation 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 disability did not result from a combat related injury as defined in Title 26, USC, section 104.  There is no evidence or indication that the applicant’s disabling conditions resulted from military training or as a result of jumping.

5.  The applicant’s physical disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the recommendation of the PEB that he be permanently retired.  There is no error or injustice in this case.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  In view of the circumstances in this case, there is insufficient evidence to grant the requested relief. 

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)                                         AR20090000537



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ABCMR Record of Proceedings (cont)                                         AR20090000537



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