IN THE CASE OF:	  

		BOARD DATE:	  16 December 2010

		DOCKET NUMBER:  AR20090021007 


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 physical evaluation board (PEB) determination to show his disability resulted from a combat-related injury.

2.  The applicant states his back injury resulting in his permanent disability retirement was combat related because it was sustained under conditions simulating war during military training on the Leadership Reaction Course (LRC) at Fort Pickett, Virginia.  He argues that Department of Defense Instruction (DODI) 1332.38 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) designate that LRC's simulate war as described in Title 26, U.S. Code, section 104.

3.  The applicant defers to counsel for submission of additional documentation.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of the applicant's military records to show his disability resulted from a combat-related injury.  He further requests the applicant be paid all amounts of disability retirement pay that were withheld by the Army for Federal income tax purposes as a result of the PEB's erroneous determination that his injury was not combat related and that the Army issue to him amended Internal Revenue Service Forms W-2 reflecting the withholding adjustments for each affected year.

2.  Counsel states the findings of the PEB showing the applicant's disability did not result from a combat-related injury within the meaning of Title 26, U.S. Code, section 104, were erroneous and unjust.  His back injury leading to his permanent disability retirement was combat related because it was sustained under conditions simulating war during military training on the LRC on 25 June 2003.  DODI 1332.38, paragraph E3.P5.2.2.3, and Army Regulation 635-40, paragraph 4-19k(1)(b)2, specifically designate that injuries sustained while on LRC's are under conditions simulating war as described in Title 26, U.S. Code, section 104(b)(3)(A)(iii).

3.  Counsel states that in June 2003 the applicant was serving on active duty as a member of the 161st Judge Advocate Officer Basic Course (JAOBC).  On 25 June 2003, he negotiated the LRC which was part of the military training being received by the class.

4.  Counsel states the applicant sustained a back injury while negotiating task 2 of the LRC which simulates a combat scenario of delivering ammunition to a military unit across a minefield and a river.  At the time of the injury, task 2 consisted of two parallel bars with five large metal chains suspended between the bars.  The applicant was standing on one of the suspended chains assisting another Soldier when he slipped off the chain and fell.  His lower back sharply struck the chain as he dropped heavily into shallow water and a hard surface.

5.  Counsel states the applicant was in a great deal of pain, but he continued with the LRC training.  The applicant discussed the circumstances surrounding his injury with Captain (CPT) D____, the student officer-in-charge, but advised CPT D____ that he could continue with the training despite his pain.  Although experiencing muscle pain, he had yet to experience sciatic problems in his leg such as muscle weakness, control, numbness, and tremors.  He began to experience the sciatic problems within a week of his injury and they continue to the present.

6.  Counsel states that two other members of the 161st JAOBC saw the applicant injure himself during his negotiation of task 2 of the LRC as reflected in the attached sworn statements.

7.  Counsel states the applicant continued to experience back pain during phase II of the JAOBC.  On or about 28 June 2003, the applicant began to experience severe pain up his left leg when bending over.  The pain in his back and legs was aggravated by his participation in physical training (PT).  The applicant notified the detachment commander, CPT C____, of his condition.  CPT C____ placed the applicant on a physical profile limiting his participation in PT.

8.  Counsel states the applicant was treated for inflammation of his sciatic nerve caused by damage to two discs of his spine and his physician advised him to consider surgery.  The applicant informed CPT C____ that he was contemplating surgery and at CPT C____'s request, the applicant drafted a memorandum in which he indicated he injured his back when he fell and struck his back on a chain and a hard surface while negotiating the LRC and that the injury was the source of the back pain and other problems he was experiencing.  In requesting that the applicant provide him a written memorandum explaining the circumstances of his injury, CPT C____ failed to advise him in accordance with Army Regulation 600-8-4 (LOD Policy, Procedures, and Investigations) that he was not required to provide the statement.

9.  Counsel states that CPT C____ conducted a line-of-duty (LOD) investigation, but there is no evidence showing he interviewed anyone, to include the other Soldiers who were present at the LRC when the applicant sustained his injury.  CPT C____ made the determination that the applicant's injury was incurred in the LOD.  However, CPT C____ inexplicably, with no evidentiary basis, stated the injury resulted from running unit PT.  There was simply no evidence supporting CPT C____'s statements that the injury resulted from running unit PT.

10.  Counsel states the applicant had back surgery.  Several days after his discharge from the hospital, he was provided with a copy of the DA Form 2173 (Statement of Medical Examination and Duty Status (LOD)) which had no exhibits or other enclosures reflecting that CPT C____ concluded his injury was incurred in the LOD.  The applicant was never provided the opportunity to appeal the LOD determination which erroneously indicated that the injury resulted from unit PT.   The LOD determination was not considered adverse; therefore could not be appealed.  When the applicant received the LOD determination, he was taking several narcotic medications prescribed as part of his post-surgery recovery.  These narcotics impaired his cognitive abilities and as a result, he was not in a position to discern the erroneous entries on the DA Form 2173 or to comprehend or appreciate the significance of those entries.

11.  Counsel states the applicant continued to receive medical treatment for his back injuries and for additional complications resulting from his back surgery, eventually being referred to a medical evaluation board.  An addendum to a medical board summary noted that the applicant's injury was sustained during training at Fort Picket, Virginia.  A DD Form 2807-1 (Report of Medical History), signed 3 August 2004, reflected the applicant had "recurrent back pain or any back problem" resulting from a fall during the obstacle course in June 2003.

12.  Counsel states an informal PEB placed the applicant on the Temporary Disability Retired List (TDRL).  The PEB determined the disability did not result from a combat-related injury as defined in Title 26, U.S. Code, section 104.

13.  Counsel states the applicant concurred with the findings and recommendations of the PEB and waived a formal hearing of his case.  The DA Form 199 (Physical Evaluation Board Proceedings) notes that a counselor explained to him "the result of the findings and recommendations and his legal rights pertaining thereto."  The applicant has no recollection that the PEB Liaison Officer explained anything to him about the significance of the item 10c determination.  He thought that to be combat-related, an injury had to be sustained in Iraq or Afghanistan.  The counselor most assuredly did not explain to him that the relevant DODI and Army Regulation designated LRC's as conditions simulating war such that his injury was combat related within the meaning of Title 26, U.S. Code, section 104.  Moreover, as the PEB found, the applicant was using narcotic medications at the time that prevented him from performing his duties as a judge advocate.

14.  Counsel provides a 21-page factual narrative and the 17 enclosures identified in a list of attachments.

CONSIDERATION OF EVIDENCE:

1.  After having prior service in the U.S. Navy, the applicant was appointed as a U.S. Army Reserve commissioned officer in the rank of captain effective 8 March 2003.

2.  In June 2003, he was ordered to active duty for the purpose of attending JAOBC.  As part of JAOBC, he was required to negotiate the LRC.  While negotiating a particular event of the LRC, he fell off a chain bridge, hitting his back and landing on his back in shallow water.

3.  A DA Form 2173, dated 3 September 2003, shows he complained of back pain which developed after running with his unit during JAOBC.  The injury was considered to have been incurred in the LOD.

4.  On 27 September 2004, a PEB found him unfit for duty because of chronic low back pain which started in JAOBC during a run and recommended a 
40-percent disability rating.  The PEB concluded that his medical condition prevented satisfactory performance of his duties and the condition had not stabilized to the point that a permanent degree of severity could be determined.  The PEB recommended placement on the TDRL.

5.  Item 10a of the DA Form 199, dated 27 September 2004, indicated "his retirement was not based on disability resulting from injury or disease received in the LOD as a direct result of armed conflict or caused by an instrumentality of war and incurred in the LOD during a period of war as defined by law."  Item 10c of this DA Form 199 indicated his disability did not result from a combat-related injury as defined in Title 26, U.S. Code, section 104.  On 18 October 2004, the applicant concurred with the PEB findings and waived a formal hearing of his case.

6.  On 8 February 2008, a PEB recommended the applicant be removed from the TDRL and be permanently retired.  Item 8b of the DA Form 199 indicates he was suffering from chronic low back pain resulting from an injury incurred on an obstacle course in June 2003.  The PEB determined his disability was not incurred in the LOD in a combat zone or incurred during the performance of duty in combat-related operations as designated by the Secretary of Defense.  On 15 February 2008, he concurred with the PEB decision and waived a formal hearing of his case.

7.  On 14 April 2008, he was removed from the TDRL and permanently retired.

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:

	a.  The disability resulted from injury or disease received in the LOD 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 – 

		(1)  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; or

		(2)  a direct causal relationship exists between the armed conflict or the incident or operation and the disability.

	b.  The disability is unfitting, was caused by an instrumentality of war, and was incurred in the LOD during a period of war as defined by law.

9.  Title 26, U.S. Code, section 104, states 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 LRC's as conditions simulating war.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention and supporting documentation have been carefully reviewed.

2.  The evidence of record shows the PEB found him unfit for duty based on chronic back pain that originated from an injury on an obstacle course in June 2003.  This event clearly can be described as "a condition simulating war."

3.  The available evidence is sufficient to show the injury was incurred under conditions that simulated war based on the fact that an LRC is defined as a condition simulating war.  Therefore, item 10c of his DA Form 199, dated 27 September 2004, should be corrected to show his disability "did result from a combat related injury as defined in Title 26, U.S. Code, section 104."

BOARD VOTE:

____X___  ____X___  ____X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending item 10c of his DA Form 199, dated 27 September 2004, to show his 

disability did result from a combat-related injury as defined in Title 26, U.S. Code, section 104 and that he receive all benefits due him as a result of this correction.



      ____________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)                                         AR20090021007



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ABCMR Record of Proceedings (cont)                                         AR20090021007



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