IN THE CASE OF:
BOARD DATE: 14 January 2010
DOCKET NUMBER: AR20090012468
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 correction of his DA Form 199 (Physical Evaluation Board [PEB] Proceedings) to show that his injury was due to a training accident (this is accepted as a request to change the entry in Item 10c of his DA Form 199 to reflect "The disability did result from a combat-related injury as defined in
26 U.S.C. 104 [Title 26, U.S. Code, section 104]").
2. The applicant states his line of duty (LOD) investigation will show that his injury was due to a training accident.
3. The applicant provides his DA Form 199 with supporting documents in support of his application.
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 applicants 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 applicants 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 (RA) on 14 August 1979 and he was awarded the military occupational specialty (MOS) 92G (food service specialist).
3. On 23 July 1980, the applicant was treated for low back pain. His DA Form 2173 (Statement of Medical Examination and Duty Status) reported that the applicant injured his back while swimming and diving off the diving board at Fort Hood, TX.
4. On 2 October 1985, the applicant was treated for a neck injury. His DA Form 2173 reported that the injury was caused by his car being hit in the rear by another car while he was stopped. At the time the applicant stated that he was en route to the Soldier of the Month board in his privately owned vehicle when he was hit by another car while in Honolulu, HI.
5. On 27 March 1999, the applicant was again treated for low back pain. His DA Form 2173 shows that he was hit in his privately owned vehicle while rounding the traffic circle on Fort Eustis, VA.
6. On 12 January 2001, the applicant was considered by a PEB which determined that he was physically unfit due to "chronic low back pain post L5/S1 fusion after a motor vehicle accident." The PEB determined that his disability did not result from a combat-related injury as defined in Title 26, U.S. Code, section 104.
7. The PEB recommended that the applicant be retired by reason of permanent disability. The applicant concurred with the PEB's findings and recommendation and waived a formal hearing.
8. Accordingly, on 24 May 2001, the applicant was honorably released from active duty and placed on the Retired List. He had 21 years, 9 months, and
11 days of active duty.
9. In the processing of this case, on 30 October 2009, an advisory opinion was obtained from the U.S. Army Physical Disability Agency (USAPDA). The advisory official stated that the applicant has provided no evidence that any of the three instances of back injury was due to any combat training, combat itself, or an instrumentality of war. The USAPDA recommended no change to the applicant's military records.
10. On 3 November 2009, the applicant was provided a copy of the advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal. However, he did not respond.
11. Title 26, U.S. Code, section 104 (Compensation for Injuries or Sickness) states that for the purpose of this subsection, the term combat-related injury means personal injury or sickness -
a. which is incurred -
(1) as a direct result of armed conflict;
(2) while engaged in extrahazardous service, or;
(3) under conditions simulating war; or
b. which is caused by an instrumentality of war.
DISCUSSION AND CONCLUSIONS:
1. There is no evidence of record and the applicant has not provided any evidence, which shows that his disability was the result of a combat-related injury as defined in Title 26, U.S. Code, section 104. The applicant was injured twice while driving his personally owned vehicle and once while jumping off a diving board while swimming.
2. Although his injuries were incurred in the line of duty while on active duty, they were not incurred as a direct result of armed conflict, while engaged in extrahazardous service, or under conditions simulating war, or caused by an instrumentality of war.
3. Based on the foregoing, there is no basis for granting the applicant's 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) AR20090012468
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ABCMR Record of Proceedings (cont) AR20090012468
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