IN THE CASE OF:	  

		BOARD DATE:	  1 June 2010

		DOCKET NUMBER:  AR20090013058 


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 her disability be shown to have been as a result of a combat-related injury and the calculation for severance pay be based on six years of service.

2.  The applicant states the Physical Evaluation Board (PEB) erred in finding that her disability was not incurred during the performance of duty in combat-related operations.  She contends that the guidance issued the Department of Defense on this issue is invalid because it impermissibly narrows the meaning of "combat-related" in violation of the relevant statutory authority.  She contends that the restriction made by the Department of Defense (DOD) to utilize only the active combat term for determining entitlement to the increased time calculation is contrary to the intent of the  National Defense Authorization Act of 2008 (NDAA 2008).

3.  The applicant provides copies of a nine page personal recounting, from her perspective, of the background of the issues with regulatory references; a 22 April 2009 DA Form 199 (Physical Evaluation Board (PEB) Proceedings); a 9 June 2009 DA Form 199, Army Physical Disability Agency Orders D162-26, her 2009 NGB Form 22 (Report of Separation and Record of Service), and 13 pages of military regulations or laws.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the New York Army National Guard (ARNG) on 17 March 1993.
2.  She entered initial active duty for training (IADT) on 19 July 1993, completed her IADT, and was awarded the military occupational specialty 29E, Radio Repair. 

3.  On 28 April 1994 she was released from active duty and transferred to NYARNG where she served until 1 February 1995, at which point she transferred to the USAR Control Group (Annual Training).

4.  The applicant transferred back to the ARNG on 21 November 1997 and was called to active duty in support of Operation Iraqi Freedom on 24 May 2004.  

5.  The available service medical records show that during her predeployment training at Fort Drum she suffered an in the line of duty back injury.  She fell through a window in full body armor during Military Operations on Urban Terrain (MOUT) training.  

6.  On 21 June 2004 the applicant was placed on a temporary profile for low back and right side pain.  She continued to receive periodic treatment for her low back pain during her deployment.  It was found that she had developed a one half inch imbalance in the length of her legs.  She received a shoe insert which relieved the right side pain but she continued to have pain in her low back.  

7.  The applicant served in Iraq from 4 January 2005 through 5 November 2005 and was released from active duty on 23 November 2005 with transfer back to her ARNG unit.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) shows 1 year and 6 months of service during this period with 9 months and 10 days of prior active but no indication of her prior inactive service. 

8.  The applicant continued to receive medical care for her back.  A March 2006 MRI (magnetic resonance imaging) showed mild to moderate end plate and disc degenerative changes at L4-L5 and L5-S1 with disc bulging.  She was ultimately referred to a Medical Evaluation Board and Physical Evaluation Board for disability separation processing.

9.  A 22 April 2009 PEB proceeding (DA Form 199) shows that the applicant was found unfit for continuation on active duty and afforded a 10 percent disability evaluation for her back condition.  It was stated that she had a history of back pain since 2000 that was exacerbated by wearing individual battle armor in Iraq.  In the determination section, at item 10A, it states her condition was not based on a disability from an injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred in a period of war.  It also states, at item 10c, that the disability did not result from a combat related injury as defined in 26 U.S.C. 104 and for the purposes of Title 10, U.s. Code, section 10216(G).

10.  The 9 June 2009 PEB proceeding amended the earlier proceedings by adding the fact that the applicant's injury occurred during MOUT training in full "battle rattle" in June 2008, during a period of war.  It also changed item 10c to read the disability did result from a combat related injury as defined in Title 26, U.S. Code, section 104 and for the purposes of Title 10, U.S. Code, section 10216(G).

11.  Army Physical Disability Agency Orders D162-26, dated 11 June 2009, directed that the applicant be discharged effective 16 July 2009.  It authorized disability severance pay in pay grade E-4 based on 4 years, 8 months, and 9 days as computed under Title 10, U.S. Code, section 1208.  It stated that her disability was the result of a combat-related injury but was not incurred in a combat zone or incurred during performance of duty in combat related operations. 

12.  On 16 July 2009 the applicant was honorably discharged from the ARNG, as a sergeant (E-5), for physical disability with severance pay.  

13.  Her NGB 22 (Report of Separation and Record of Service) shows 11 years, 7 months, and 26 days of service this period; 3 years, 10 months, and 24 days of prior Reserve service, 9 months and 10 days of prior Federal service; for a total service for pay of 16 years and 4 months; and a total service for retired pay of 13 years and 4 months.

14.  In the development of this case an advisory opinion was obtained from the Chief, National Guard Bureau, Personnel Division.  It recommended that her request be denied.  It stated that since her disability was shown to have been incurred as a part of her MOUT training and not in combat in a combat zone or incurred during performance of duty in combat-related operations, the discharge was correct and her disability severance pay was properly calculated.

15.  A copy of the advisory opinion was forwarded to the applicant with no response.

16.  Title 26, U.S. (Internal Revenue Code), Subtitle A, chapter 1, subchapter 1, subchapter B, part III, section 104(b)(3) (special rules for combat-related injuries), states for purposes of this subsection, the term “combat-related injury” means a personal injury or sickness) which is incurred as a direct result of armed conflict; while engaged in extra-hazardous service; under conditions simulating war; or which is caused by an instrumentality of war. 
17.  National Defense Authorization Act for Fiscal Year 2008 became Public Law 110-181 on 28 January 2008.  As it pertains to this case, Public Law 110-181 states at Section 1646 (Enhancement Of Disability Severance Pay For Members Of The Armed Forces) amends Title 10, U.S. Code, section 1212, to provide that for disability severance the minimum years of service for pay calculations is six years in the case of a member separated from the armed forces for a disability incurred in line of duty in a combat zone  or incurred during the performance of duty in combat-related operations as designated by the Secretary of Defense.  For all others the minimum is three years.

18.  Title 10, U.S. Code, chapter 61, section 1212 (Disability severance pay), subsection (c) (1), as now amended, states the minimum years of service for severance pay is   six years in the case of a member separated from the armed forces for a disability incurred in line of duty in a combat zone (as designated by the Secretary of Defense for purposes of this subsection) or incurred during the performance of duty in combat-related operations as designated by the Secretary of Defense and three years in the case of any other member. 

19.  Title 10, U.S. Code, section 1413a (Combat-related special compensation) defines the term combat-related disability as a disability that is compensable under the laws administered by the Secretary of Veterans Affairs and that:

	a.  is attributable to an injury for which the member was awarded the Purple Heart; or

	b.  was incurred (as determined under criteria prescribed by the Secretary of Defense);

		(1)  as a direct result of armed conflict;

		(2)  while engaged in hazardous service;

		(3) in the performance of duty under conditions simulating war; or

		(4) through an instrumentality of war.

20.  An Under Secretary of Defense for Personnel and Readiness directive type memorandum, dated March 13, 2008, provided clarifying guidance for the implementation of the disability-related provisions of the 2008 NDAA.  As related to this case it amended Department of Defense Instruction (DODI) 1332.38 by adding paragraph 5.5.8 with sub paragraphs 5.5.8.1 and 5.5.8.2.  This change states that for a disability incurred in the line of duty in a combat zone the term "incurred during performance of duty in combat related operation" is to be consistent with the criteria set forth in paragraph E3.P5.1.2.

21.  DODI 1332.38 defines the following relevant terms at:

   E3.P5.1.2.  Armed conflict.  The physical disability is a disease or injury incurred in the line of duty as a direct result of armed conflict.  The fact that a member may have incurred a disability during a period of war or in an area of armed conflict, or while participating in combat operations is not sufficient to support this finding.  There must be a definite causal relationship between the armed conflict and the resulting unfitting disability.

   E3.P5.1.2.1.  Armed conflict includes a war, expedition, occupation of an area or territory, battle, skirmish, raid, invasion, rebellion, insurrection, guerrilla action, riot, or any other action in which Service members are engaged with a hostile or belligerent nation, faction, force, or terrorists. 

	E3.P5.1.2.2.  Armed conflict may also include such situations as incidents involving a member while interned as a prisoner of war or while detained against his or her will in custody of a hostile or belligerent force or while escaping or attempting to escape from such confinement, prisoner of war, or detained status.

	E3.P5.2.2.  Combat-related.  This standard covers those injuries and diseases attributable to the special dangers associated with armed conflict or the preparation or training for armed conflict.  A physical disability shall be considered combat-related if it makes the member unfit or contributes to unfitness and was incurred under any of the circumstances listed in paragraphs E3.P5.2.2.1 through E3.P5.2.2.4; 

	E3.P5.2.2.1. As a direct result of armed conflict. The criteria are the same as in paragraph E3.P5.1.2.

	E3.P5.2.2.2.  While engaged in hazardous service. Such service includes, but is not limited to, aerial flight duty, parachute duty, demolition duty, experimental stress duty, and diving duty. 

	E3.P5.2.2.3.  Under conditions simulating war.  In general, this covers disabilities resulting from military training, such as war games, practice alerts, tactical exercises, airborne operations, leadership reaction courses; grenade and live fire weapons practice; bayonet training; hand-to-hand combat training; rappelling, and negotiation of combat confidence and obstacle courses.  It does not include physical training activities, such as calisthenics and jogging or formation running and supervised sports.

	E3.P5.2.2.4.  Caused by an instrumentality of war. Incurrence during a period of war is not required. A favorable determination is made if the disability was incurred during any period of service as a result of such diverse causes as wounds caused by a military weapon, accidents involving a military combat vehicle, injury, or sickness caused by fumes, gases, or explosion of military ordnance, vehicles, or material.  However, there must be a direct causal relationship between the instrumentality of war and the disability.  For example, an injury resulting from a Service member falling on the deck of a ship while participating in a sports activity would not normally be considered an injury caused by an instrumentality of war (the ship) since the sports activity and not the ship caused the fall.  The exception occurs if the operation of the ship caused the fall.

22.  Title 10, U.S. Code, chapter 61, section 10216(g) refers to the retention of military technicians who lose their dual status due to combat-related disability and sets forth the provisions for retention of a military technician (dual status) who has a combat-related disability.  

23.  Title 10, U.S. Code, chapter 61, section 1212 (c)(1)(A) states for the computation of disability severance pay, the member’s years of service are computed under section 1208 with a six year minimum in the case of a member separated for a disability incurred in line of duty in a combat zone or incurred during the performance of duty in combat-related operations.

24.  Title 10, U.s. Code, chapter 71, section 1413a(e), states the term combat-related disability means a disability that is compensable under the laws administered by the Secretary of Veterans Affairs and that was incurred, as a direct result of armed conflict; while engaged in hazardous service; in the performance of duty under conditions simulating war; or through an instrumentality of war. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant states the Physical Evaluation Board (PEB) erred in finding that her disability was not incurred during the performance of duty in combat-related operations.  She contends that the guidance issued the Department of Defense on this issue is invalid because it impermissibly narrows the meaning of "combat-related" in violation of the relevant statutory authority.

2.  The Public Law 110-181 specifically states that for the purposes of affording a service member the severance pay calculation with a six year minimum period, the disability had to be incurred in line of duty in a combat zone or incurred during the performance of duty in combat-related operations.  The law did not include any of the other provisions for a "combat-related" condition that are found in other laws and regulations.  

3.  The differences in the laws and regulations is why she is shown on the DA Form 199 at 10C, to have a combat related injury for IRS or Reserve duel status considerations but, at 10D, that her the disability was not incurred in line of duty in a combat zone or incurred during the performance of duty in combat-related operations under NDAA 2008, Section 1646.  Hence the finding, at 10A, that her disability for retirement (severance) purposed was not combat-related.

4.  The applicant's initial injury was incurred as a part her MOUT training prior to her deployment to Iraq.  She continued to have problems with this condition during her tour in the Middle East but was not found to be unfit for duty until four years after her release from active duty. 

5.  Without a finding that her disability was incurred in line of duty in a combat zone or incurred during performance of duty in combat-related operations, she is not entitled to the special consideration for calculating her severance pay.

6.  Although the determination section on the PEB proceedings may be somewhat confusing, there is no error in that determination.  Therefore, no relief is warranted.

7.  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 has failed to submit evidence that would satisfy this requirement.

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)                                         AR20090013058



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ABCMR Record of Proceedings (cont)                                         AR20090013058



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