BOARD DATE:	  14 October 2010

		DOCKET NUMBER:  AR20100011593 


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 her retirement orders to show the following entries as "Yes" instead of "No":

	a.  Disability is based on injury received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurring in line of duty during a period of war as defined by law: No

	b.  Disability was incurred in a combat zone or incurred in the performance of duty in combat-related operations as designated by the Secretary of Defense (National Defense Authorization Act (NDAA) 2008 Section 1846: No

2.  In effect, she requests correction of her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show she was retired because of a combat-related event instead of a non-combat related event.

3.  The applicant states that her DD Form 214 shows she was deployed in support of Operations Enduring/Iraqi Freedom (OEF/OIF).  She served in a designated imminent danger pay/hazardous fire pay (IDP/HFP) area in Croatia from 9 August 1996 to 13 December 1996 and Kuwait from 13 January 2003 to 16 May 2003.  This justifies her disability retirement orders to be amended immediately for admittance as evidence to the Department of Veterans Affairs (VA).  Her disability was incurred in a combat zone or incurred during the performance of duty in combat-related operations as designated by the Secretary of Defense. 

4.  The applicant provides the following documentary evidence:

* Orders 246-0004, dated 2 September 2008
* DD Form 214, dated 17 October 2008

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show she enlisted in the Regular Army (RA) on 17 May 1994 and held military occupational specialty (MOS) 88N (Traffic Management Coordinator).  She served through multiple reenlistments or extensions and attained the rank/grade of sergeant first class (SFC)/E-7.  

2.  Her records also show she served in Croatia from 9 August 1996 to 13 December 1996 in support of Operation Joint Endeavor.  She was assigned to the 586th Transportation Detachment.  

3.  Her records also show she served in Kuwait from 13 January 2003 to 16 May 2003.  She was assigned to the 11th Transportation Battalion.

4.  On 18 June 2007, she complained of chronic fatigue.  She subsequently underwent a thorough medical examination with referrals and consults at the Naval Medical Center, Portsmouth, VA.  Her narrative summary (NARSUM) shows she was diagnosed with somatoform disorder that existed prior to service, chronic fatigue and migraines, and moderate to severe health problems.  The NARSUM also noted the applicant sustained a motorcycle accident in December 2002 and a horseback riding accident in January 2003.  The attending physician concluded that the applicant should be referred to a Medical Evaluation Board (MEB).

5.  On 16 April 2008, an MEB convened at McDonald Army Health Center, Fort Eustis, VA, and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found that the applicant had the following medically unacceptable conditions: 

* Migraine headaches
* Chronic daily headaches 
* Chronic fatigue syndrome
* Somatoform disorder
* Bilateral knee pain
* Degenerative joint disease (both shoulders)
* Intervertebral disc degenerative of lumoscaral spine
* Greater trochanteric hip bursitis
The MEB recommended the applicant be referred to a Physical Evaluation Board (PEB).  The applicant agreed with the MEB’s findings and recommendation and indicated she did not desire to continue on active duty.

6.  On 17 July 2008, an informal PEB convened at Walter Reed Army Medical Center found the applicant's conditions prevented her from performing the duties required of her grade and specialty and determined she was physically unfit due to various conditions.  The PEB rated her under the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) and, as shown in items 8a, 8b, and 8g (Disability Description, VA Code, Percentage), she was granted the following:

* Code 6354, chronic fatigue syndrome, following OIF deployment, 20%
* Codes 5099 and 5003, bilateral knee pain, during a physical training (PT) run, 20%
* Code 5003, bilateral shoulder pain from degenerative joint disease, following a motorcycle accident, 20%
* Codes 5099 and 5003, bilateral greater trochanteric hip bursitis, 20%

7.  The PEB also considered her other medical conditions of headaches, migraines, and tension, subsequent to a horse riding accident; and intervertebral disc degeneration of lumbar spine; however, these conditions were not found to be unfitting and therefore they were not rated.  The PEB recommended the applicant be permanently retired by reason of disability at a combined rating of 60%.  

8.  The applicant's concurrence or non-concurrence statement is not available for review with this case.  However, it appears she did not concur and demanded a formal hearing of her case.  

9.  The applicant's DA Form 199 (PEB Proceedings) contains the following entries in Item 10 (If Retired Because of Disability, the Board Makes the Recommended Finding that):

* 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 line of duty during a period of war as defined by law
* Evidence of record reflects the Soldier was not a member or obligated to become a member of an armed force or a Reserve thereof, or the NOAA (National Oceanic or Atmospheric Administration) or the USPHS (U.S. Public Health Service) on 24 September 1975
* The disability did not result from a combat-related injury as defined in Title 26, U.S. Code, section 104 

10.  On 16 July 2008, she reconsidered her decision and indicated that she concurred with the findings of the informal PEB proceedings and declined a formal hearing of her case. 

11.  On 17 July 2008, an administrative correction to the DA Form 199 was issued and added a 0% disability rating for Codes 8199 and 8100, headaches, migraine, and tension, but did not change her disposition or overall rating.

12.  On 31 July 2008, her PEB was approved by an official at the U.S. Army Physical Disability Agency on behalf of the Secretary of the Army.

13.  On 27 October 2008, the applicant was honorably retired in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) and the 2008 NDAA by reason of physical disability.  Item 26 (Separation Code) of her DD Form 214 shows the entry "SFJ."

14.  Army Regulation 635-40 (6 February 2006) 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.  

15.  Army Regulation 635-40 states 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 itself renders the member physically unfit and was incurred during one of the periods of war as defined by law.

16.  Appendix D of Army Regulation 635-40 provides for instructions for completion of the DA Form 199 and states the following:

	a.  Block 9:  Select recommendations for disposition of the Soldier from the following statements: "Permanently retired from the service"; "Placed on the TDRL (Temporary Disability Retired List) with reexamination during (month and year)"; "Separated from the military service without entitlement to disability benefits from the service"; "Separate from the service with severance pay if otherwise qualified"; "Retained on the TDRL with reexamination during (month and year)"; "Revert to retired status"; or Other (specify).  

	b.  Item 10a:  Make the entry according to the provisions of paragraph 4–19j. Make the entry in all cases other than those on the TDRL although the entry pertains only to Soldiers who will be retired.  

	c.  Item 10b:  Make the entry in all cases even though block 10b addresses only Soldiers who will be retired.  Check "was" if, on 24 September 1975, the individual was a member of the armed force of any country or Reserve Component (RC) of the armed force; the NOAA; the USPHS; or under a binding written commitment to become such a member.  

	d.  Item 10c:  Make the entry in all cases even though block 10c addresses only Soldiers who will be retired.  Refer to paragraph 4–19k and the Glossary to decide which block to check.

17.  Army Regulation 635-5-1 (Separation Program Designator Codes) states that the Separation Program Designator (SPD) codes are three-character alphabetic combinations, which identify reasons for, and types of separation from active duty.  The "SFJ" Separation Code is the correct code for Soldiers retiring under paragraph 4-24B(1) of Army Regulation 635-40 for permanent disability.

18.  The FY 2008 NDAA which became Public Law 110-181, on 28 January 2008, authorized an enhancement of disability severance pay for members of the armed forces.  The law mandated that the Secretaries of Military Departments identify and certify members with a disability incurred in a line of duty in a combat zone tax exclusion area or incurred during performance of duty in combat-related operations as designated by the Secretary of Defense.  The determination of "incurred during performance of duty in combat-related operations" shall be made consistent with the criteria of the law.  This provision applies to members not disability separated or retired as of 28 January 2008.  

19.  Paragraph 4-19j of Army Regulation 635-40 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 line of duty 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.

		(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 line of duty during a period of war as defined by law.  

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 her narrative reason for separation should be corrected to show her disability was combat-related.

2.  The applicant sustained several illnesses and/or injuries caused by physical training, a horse fall, or a motorcycle accident.  She underwent an MEB that referred her to a PEB.  The PEB determined she was physically unfit for further military service and recommended her permanent retirement.  She was counseled and concurred with the PEB's findings and recommendations and, accordingly, she was retired.  

3.  The applicant does not meet the criteria to have block 10a of her DA Form 199 corrected.  Block 10a of the DA Form 199 is a two-part requirement.  The member’s retirement must be based on disability resulting from injury or disease received in line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred in line of duty during a period of war as defined by law.  

4.  Even if the fact the applicant’s medical conditions began during her Croatia service in 1996 or Kuwait service in 2003 is accepted, the conditions were not 

disabling at that time.  She continued to serve successfully in various positions for several years.  The fact that her conditions occurred or were aggravated in the line of duty in time of war or national emergency is not sufficient to change block 10a.  

5.  Under the 2008 NDAA, in order to differentiate injuries and establish specific entitlements to certain programs, the DOD established specific SPDs for each type of injury/illness.  In the applicant's case, her conditions occurred in line of duty but were not caused by combat or an instrumentality of war.  None of her conditions occurred in a combat zone or were incurred during the performance of duty in combat-related operations as designated by the Secretary of Defense.  She was retired as a result of a disability that did not occur in a combat zone which is correctly shown on his DD Form 214.

6.  The applicant’s physical disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the recommendation of the PEB.  There is no error or injustice in this case.  The applicant was appropriately assigned SPD "SFJ" which then automatically dictated her reason for retirement as "non-combat" and thus the entries on her retirement orders are also non-combat.

7.  In view of the circumstances in this case, there is insufficient evidence to grant her 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)                                         AR20100011593



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ABCMR Record of Proceedings (cont)                                         AR20100011593



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