IN THE CASE OF:	  

		BOARD DATE:	      17 June 2010

		DOCKET NUMBER:  AR20090019835 


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 corrections be made to his discharge orders and his DA Form 199 (Physical Evaluation Board (PEB) Proceedings).

2.  The applicant states:

* his discharge orders and DA Form 199 should be corrected to show his injury was caused by an instrumentality of war
* his medical records clearly show his condition was caused from noise exposure from his occupation in the military
* he worked on tanks and these vehicles are instruments of war

3.  The applicant provides numerous medical records, dated 1997 to 2002, 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 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 enlisted in the Regular Army on 7 July 1983 and served as a Bradley fighting vehicle system mechanic.

3.  A DA Form 199, dated 12 December 2001, shows a PEB found the applicant physically unfit due to "Meniere's syndrome, onset 1997, becoming more frequent and severe with time.  Now has had endolymphatic sac decompression and several treatments with Gentamicin for ablation of the labyrinth, but continues with severe involvement, with one or two attacks weekly, and baseline gait impairment interepisode."  The PEB recommended a combined rating of 100 percent and that the applicant be placed on the Temporary Disability Retired List (TDRL) with reexamination during April 2003.  Item 10a of this form states the applicant's retirement is not based on disability from injury or disease received in the line of duty (LOD) as a direct result of armed conflict or caused by an instrumentality of war and incurring in the LOD during a period of war as defined by law.  Item 10c of this form states the applicant's disability did not result from a combat-related injury as defined in Title 26, U.S. Code, section 104.  On 13 December 2001, the applicant concurred with the findings and recommendations and waived a formal hearing.  On 13 December 2001, the U.S. Army Physical Disability Agency (USAPDA) approved the PEB's findings and recommendation.

4.  On 3 April 2002, the applicant was retired and placed on the TDRL the following day.  His discharge orders, dated 27 February 2002, state, in pertinent part, "Disability is based on injury or disease received in the LOD as a direct result of armed conflict or caused by instrumentality of war and incurred in the LOD during a war period as defined by law:  No" and "Disability resulted from a combat-related injury as defined in Title 26, U.S. Code, section 104:  No."

5.  A DA Form 199, dated 19 March 2003, shows a PEB found the applicant physically unfit due to "Meniere's syndrome, onset 1997, status post-endolymphatic sac decompression and Gentamicin ablation of the right labyrinth.  These procedures have not decreased the frequency or severity of attacks that now occur several times a day lasting minutes to hours.  In general, this Soldier's condition has been worsening; he remains refractory to treatment with little likelihood of improvement and has reached the maximum rating for this condition.  Stable for rating purposes."  The PEB recommended a combined rating of 100 percent and the applicant's disposition be a permanent disability retirement.  On 21 March 2003, the applicant concurred with the findings and recommendations and waived a formal hearing.  On 24 March 2003, the USAPDA approved the PEB's findings and recommendation.
6.  The applicant was removed from the TDRL on 31 March 2003 and permanently retired.  His orders, dated 31 March 2003, show in pertinent part, "Disability is based on injury or disease received in the LOD as a direct result of armed conflict or caused by instrumentality of war and incurred in the LOD during a war period as defined by law:  not applicable" and "Disability resulted from a combat-related injury as defined in Title 26, U.S. Code, section 104:  not applicable."

7.  In support of his claim, the applicant provided numerous medical records, dated 1997 to 2002, which state, in pertinent part, he has a history of hearing loss due to noise exposure from his occupation in the military.

8.  Title 26, U.S. Code, section 104, states that 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, under conditions simulating war; or which is caused by an instrumentality of war.

9.  The Army Combat-Related Special Compensation (CRSC) website provides information pertaining to combat-related injuries that qualify through an instrumentality of war (combat vehicles, weapons, Agent Orange, etc.).  It states incurrence during actual period of war is not required.  However, there must be a direct causal relationship between instrumentality of war and disability.  The disability must be incurred incident to a hazard or risk of the service.  An instrumentality of war is a vehicle, vessel, or device designated primarily for military service and intended for use in such service at the time of the occurrence or injury.  It may include such instrumentalities not designated primarily for military service if use of, or occurrence involving, such instrumentality subjects the individual to a hazard peculiar to military service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests his discharge orders and DA Form 199 be corrected to show his disability resulted from an instrumentality of war.

2.  The applicant contends his military records clearly show his condition was caused by noise exposure from his occupation in the military (tank mechanic).  However, information obtained from the CRSC website states an instrumentality of war is a vehicle (i.e., tank) designated primarily for military service and intended for use in such service at the time of the occurrence or injury.  It may include instrumentalities not designated primarily for military service if use of, or occurrence involving, such instrumentality subjects the individual to a hazard peculiar to military service.  Since civilian contractors could be employed for maintenance/repair on military tanks, the applicant's military occupation did not subject him to a hazard peculiar to military service.  Therefore, his disability was not incurred through an instrumentality of war.

3.  The applicant's separation orders, dated 27 February 2002, and his DA Form 199, dated 12 December 2001, properly indicate his disability was not a direct result of armed conflict or caused by an instrumentality of war.  There is insufficient evidence on which to amend these orders or the DA Form 199.

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)                                         AR20090019835



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ABCMR Record of Proceedings (cont)                                         AR20090019835



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