IN THE CASE OF:	  

		BOARD DATE:	  2 December 2010

		DOCKET NUMBER:  AR20100012177 


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) and retirement orders to show his retirement was 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.

2.  The applicant states that the entries on his DA Form 199 and retirement orders are unjust and in error.

	a.  He states that if he had not been exposed to the combat environment he would still be flying.  He also states he would not be on anti-depressants and suffering from Post-Traumatic Stress Disorder (PTSD), depression, and sleeping pill dependency.  He adds he is withdrawn; has outbursts of anger; experiences nightmares and cannot sleep; and he is now hooked on sleep medications.

	b.  He states that he became ill because he was pushed beyond his limits on a daily basis for extended periods of time while serving in Afghanistan.  He adds the constant fear of death, being in multiple death situations, and constantly seeing death and destruction took its toll on him.

	c.  He states he performed hazardous service in the cockpit of an aircraft on a daily basis and all of his mental and physical injuries are the direct result of combat and war.

3.  The applicant provides copies of his DA Form 199 and retirement orders, along with a statement and an email from an Army medical doctor.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve on 30 June 1982.  He then enlisted in the Army National Guard of the United States (ARNGUS) and the Maryland Army National Guard on 30 September 1985.  He was honorably discharged on 13 March 1989.

2.  The applicant was appointed as an ARNGUS warrant officer on 14 March 1989.  Upon completion of training he was awarded military occupational specialty (MOS) 153B (UH-1 Pilot).

3.  The applicant was ordered to active duty on 27 May 2007 in support of Operation Enduring Freedom and he served in Afghanistan from 1 August to
28 November 2007.

4.  The applicant was retained on active duty to participate in the Reserve Component Warriors in Transition Medical Retention Processing Program for completion of medical care and treatment.

5.  A DA Form 199 shows a PEB convened on 21 April 2009 to consider the applicant's medical condition.

   a.  The Disability Description section of the applicant's DA Form 199 describes his Medical Evaluation Board (MEB) diagnoses and shows:

   	(1)  "depressive disorder, NOS [Not Otherwise Specified], as manifested by anxious, mood, dysphoria, and regression of personality disorder" and that the symptoms began while the applicant was at Fort Carson and prior to his deployment to Afghanistan, when his wife served him with divorce papers;

   	(2)  "cervicalgia with left C-7 radiculopathy" and that the applicant had no history of trauma related to his neck pain, but does have a history of wearing heavy helmets as part of his flying duties, and that he noticed a worsening of  pre-existing symptoms since returning from Afghanistan;

   	(3)  "numbness and tingling in his left arm related to his neck pain" and that the applicant reported weakness and lack of coordination in his left hand;

   	(4)  "lumbago secondary to disc and degenerative changes" and that the applicant reported he has had low back pain since prior to his last deployment, but did not recall a precipitating event; and

   	(5)  also contains the statement "Formal Board" and states "You are advised that a member of an armed force may not be required to sign a statement relating to the origin, occurrence, or aggravation of a disease or injury that he/she has."

   b.  Based on a review of the medical evidence of record, the PEB found the applicant physically unfit; recommended a combined rating of 50 percent (%) disability rating percentage; and permanent disability retirement.

   c.  Item 10 (If retired because of disability, the board makes the recommended finding that:), subparagraph a, states, "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."

   d.  Item 15 (Formal Hearings) shows the applicant elected to appear and did appear before the board on 21 April 2009, and he was represented by a regularly appointed counsel.

   e.  On 29 April 2009, the applicant indicated with his signature that he concurred with the findings and recommendations of the formal PEB.

6.  Headquarters, U.S. Army Fort Dix, Fort Dix, NJ, Orders 161-0087, dated
10 June 2009, released the applicant from assignment and duty because of physical disability on 27 July 2009 and placed him on the Retired List, effective 28 July 2009.  The orders also contain the statements:

   a.  "Percentage of Disability:  50." 

   b.  "Disability is based on 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 the line of duty during a period of war as defined by law:  No."

7.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he entered active duty this period on 27 May 2007 and he was honorably retired on 27 July 2009 under the provisions of Army Regulation
635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(1), based on permanent disability.  At the time he had completed 2 years, 2 months, and 1 day of net active service this period; 2 years, 7 months, and
17 days of total prior active service; and 22 years, 3 months, and 10 days of total prior inactive service.

8.  The applicant provides the following documents.

   a.  A memorandum for record, dated 20 November 2007, Subject:  Statement of Medical Treatment Regarding:  [Applicant], that shows Lieutenant Colonel (LTC) D------ W. L-----, Medical Doctor (MD), Task Force Desert Hawk Surgeon, diagnosed the applicant as suffering from an acute severe major depressive episode and recommended his return to the United States to receive continued treatment.

   b.  An email, dated 6 November 2007, Subject:  [Applicant], that shows
LTC L-----, MD, Task Force Desert Hawk Surgeon, described to Major A----- E. S-------, ARNGUS, the applicant's major depressive episode and treatment.  He recommended that the applicant be attached to his rear detachment while he undergoes additional counseling therapy and medical management of his prescribed medication.

9.  Army Regulation 635-40 sets forth policies, responsibilities, and procedures in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.

   a.  Chapter 4 (Procedures), paragraph 4-19 (PEB decisions - common criteria), subparagraph a (Determinations), provides that the voting members of a PEB make findings and recommendations in each case on the basis of the instructions set forth in paragraphs b through q.  The board decides all questions by majority vote.  All findings must be based on a preponderance of the evidence.  Recommendations must be supported by the findings.

   b.  Subparagraph j (Armed conflict - instrumentality of war) provides that certain advantages accrue to Soldiers who are retired for physical disability and later return to work for the Federal Government when it is determined that the disability for which retired was incurred under specific circumstances.  These advantages concern preference eligible status within the Civil Service system (Title 5, U.S. Code, section 3501).  It also provides:


   	(1)  The disability resulted from injury or disease received in 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 -

   		(a)  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. 

   		(b)  A direct causal relationship exists between the armed conflict or the incident or operation, and the disability.

   	(2)  The disability is unfitting, was caused by an instrumentality of war, and was incurred in line of duty during a period of war as defined by law. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his PEB proceedings and retirement orders should be corrected to show his retirement was 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.

2.  The evidence the applicant provides in support of his application was carefully considered.  The information he provides from the Task Force Desert Hawk Surgeon was a basis for the applicant's early return from the theater of operations.  Thus, the information existed prior to the applicant's formal PEB and presumably was considered by the PEB.  In addition, the applicant and his counsel had the opportunity to present this information at the time of the PEB.  In any event, this evidence alone is insufficient as a basis for correction of the applicant's records.

3.  The evidence of record shows the applicant's PEB decision document contains a narrative on each unfitting condition.  It shows the applicant's symptoms pertaining to his depressive disorder began while he was at Fort Carson and prior to his deployment to Afghanistan; he had a history of wearing heavy helmets as part of his flying duties and noticed a worsening of pre-existing symptoms [emphasis added] of neck pain since returning from Afghanistan; the 


numbness and tingling in his left arm was related to his neck pain; and he reported low back pain prior to his deployment.  Thus, the PEB narrative summary refutes the applicant's assertion that his medical condition(s) was/were a direct result of armed conflict or caused by an instrumentality of war.

4.  In view of the foregoing, it is concluded that item 10 of the applicant's
DA Form 199 and the statement on his physical disability retirement orders are correct in both law and regulation.  Therefore, the applicant is not entitled to correction of his records in this case.

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)                                         AR20100012177



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ABCMR Record of Proceedings (cont)                                         AR20100012177



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