IN THE CASE OF:	  

		BOARD DATE:	  9 June 2011

		DOCKET NUMBER:  AR20100024553 


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 the DA Form 199 (Physical Evaluation Board (PEB) Proceedings) in her record to show her disability was the result of a combat-related injury. 

2.  She states she was initially injured during a field training exercise simulating war, which began the accelerated process of degenerative disc disease and also resulted in a bulging disc.  She later tore the disc while preparing equipment in a field training event.  She states her injury was in the line of duty and qualifies as one of the five combat-related events.  

3.  She provides: 

* two self-authored statements
* service medical records
* a statement from Colonel (Retired) G. S. 
* medical records from civilian providers
* two DA Forms 2173 (Statement of Medical Examination and Duty Status) with supporting documents
* a DA Form 199
* a statement from the Brigade Surgeon, 90th Sustainment Brigade
* a statement from a private physician
* orders assigning her to the Retired Reserve
* a memorandum, dated 28 August 2008, from the Office of the Chief, U.S. Army Reserve (USAR), subject: Retention of Non-Dual Status Technicians (NDST) Who Lose Dual Status/Membership in the Selected Reserve (SELRES) Due to a Combat-Related Disability
* copies of Title 10, U.S. Code (USC), Section 1413; Title 26, USC, Section 104; and Title 38, USC, Section 101
* a letter from the Department of Veterans Affairs (VA) informing her of her monthly entitlement amount
* pages from a website describing degenerative disc disease
* paragraphs from Department of Defense Instruction (DODI) 1332.38 posted on a civilian website 

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the USAR on 8 April 1983.  Her ARPC Form 
249-E (Chronological Record of Retirement Points) shows she was an active member of the USAR until she was retired effective 1 November 2009.  She completed 26 years, 6 months, and 24 days of qualifying service for a non-regular retirement.  

2.  Her record in the interactive Personnel Electronic Records Management System includes a doctor's report showing she was seen on 28 July 1999 for complaints of back pain which she stated had been bothering her since 1994.  The report shows the doctor confirmed low back pain, which was most probably the result of degenerative disc disease.  

3.  A Radiology Report, dated 30 July 1999, shows an examination revealed changes due to degenerative disc disease.

4.  A DD Form 2808 (Report of Medical Examination) shows, on 14 September 2004, she underwent a medical examination and was found to be qualified for service.  

5.  A DD Form 2807-1 (Report of Medical History), dated 14 September 2004, shows "Yes" is checked for item 12a (Recurrent back pain or any back problem).  "Yes" is also checked for item 22 (Have you ever had, or have you been advised to have any operations or surgery)?  Item 29 (Explanation of "Yes" Answers) shows the explanation for item 22 was "Lower Back - Bulging Disc 36 yrs old."

6.  A Standard Form 507 (Clinical Record), also dated 14 September 2004, shows she completed a self-assessment of her functional capacity.  She responded "No" to all questions, indicating she believed she had no physical limitations warranting further evaluation.  A physician signed the form and indicated he concurred with her self-assessment.  

7.  A DA Form 2173 (Statement of Medical Examination and Duty Status) shows she sought treatment at a civilian hospital on 22 March 2005.  She was on active duty for training and while lifting a camouflage net to stack on top of another, her back popped which resulted in pain.  On 14 November 2005, the approval authority confirmed the injury was incurred in the line of duty.

8.  In 2006, she began a course of treatment for her back pain that involved taking a nonsteroidal anti-inflammatory drug and physical therapy.

9.  A DD Form 2808 shows, on 28 June 2006, she again underwent a medical examination.  A clinical evaluation found she had decreased range of motion to her lower back with tenderness.  She was found qualified for service pending a review and recommendation for further examination by an orthopedist for back pain.  

10.  A Standard Form 507 shows her medical records were reviewed and on or about 20 February 2007 she was found not to meet medical retention standards.  

11.  Her record includes a DA Form 199 that shows a PEB convened on 14 January 2008 and found her physically unfit due to lumbar degenerative disc disease without motor neurologic deficit.  The PEB recommended a disability rating of 10% and separation with severance pay if otherwise qualified.  The PEB made the recommended finding that:

* her retirement was not based on disability from injury or disease received in the line of duty as a direct result of an armed conflict or caused by an instrumentality of war in the line of duty during a period of war
* her disability did not result from a combat-related injury

12.  On 23 January 2008, she concurred with the PEB findings and recommendation.  They were approved on 5 February 2008.  

13.  Orders 09-273-00008, issued by Headquarters, 81st Regional Support Command, on 30 September 2009, released her from her assignment by reason of medical disqualification not the result of her own misconduct and assigned her to the Retired Reserve effective 31 October 2009.

14.  Her record does not show the reason for the more than 20-month delay in transferring her to the Retired Reserve after the PEB findings were approved.

15.  The applicant provided several documents in support of her application that are not available in her official record:
   a.  A DA Form 2173 completed in April 2010 for the injury she incurred on 15 July 1994 shows the injury was found to have been incurred in the line of duty and includes the following statement describing the incident:

Soldier was performing military training during a field training exercise at an annual training event.  Soldier was pulling security and while preparing her [site] she lifted a GP medium tent [bag] with tent and poles, her back popped and [she] had instant pain and tingling down her legs.

   b.  Service medical records confirm she was seen by an Army medical officer on 15 July 1994 for a lower back injury and show she was given ibuprofen, returned to duty, and recommended for enrollment in a "back class."  

   c.  In an undated statement, Colonel (Retired) G.S., her former company commander, confirms the details of the incident in which she was injured and the treatment she received at the time.

   d.  In a Memorandum for Record, the Brigade Surgeon of the U.S. Army 90th Sustainment Brigade, who is an orthopedic surgeon, states the applicant asked her to comment on the causal relationship of low back injuries to progressive degenerative disc disease.  She states "there is no question that an initial, acute loading injury such as the one [the applicant] had in 1994 is often the first event in the further development of degenerative disc disease."  

   e.  In a letter, a civilian physician essentially makes the same statement as the Brigade Surgeon.  

   f.  The memorandum from the Office of the Chief, USAR, states, in pertinent part, that former Dual Status Military Technicians who have lost membership in the Selected Reserve may be retained as Non-Dual Status Military Technicians if they have suffered a disabling injury compensable by the VA and the cause, occurrence, or incidence of the injury meets combat-related requirements.  The memorandum states an injury or disease that occurred in the performance of duty under conditions simulating war meets combat-related requirements.

   g.  A letter from the VA shows she is entitled to service-connected compensation.

16.  On 15 February 2011, during the processing of this case, an advisory opinion was obtained from the U.S. Army Physical Disability Agency (USAPDA).  The advisory official noted the available evidence indicated her initial injury in 1994 had essentially healed, with some intermittent pain.  He confirmed the PEB finding that her back condition was not proximately caused by a combat-related incident and provided the following statement:

Simply being on a field training exercise does not result in every injury that may be incurred during the time of the exercise being classified as combat-related.  In 1975 Congress indicated that all military disability payments [were] to be fully taxable just like any other income.  Exceptions to the taxation rule were required to be based on clear evidence and simply being an in line of duty military injury is insufficient.  To be exempted from the normal taxation rule based on being combat-related the injury must be attributed to some "special dangers" of military training.  Hurting one's back while lifting objects that any camper and/or Boy Scout might encounter on a camping trip is not a "special danger" that can be attributed to armed conflict.  Based upon the evidence in the case file, the PEB was within its discretion to properly rule that the applicant's back injuries were not combat-related in accordance with the Congressional intent that disability compensation normally be taxable and only exempted when meeting clearly established exceptions.

[Her application] does not provide sufficient evidence to overcome the PEB's findings that her unfitting back condition was not the proximate result of a combat-related incident as defined by DODI 1332.38.  Recommend [her] current military records not be changed.

17.  In a rebuttal of the advisory opinion, she states the USAPDA advisory official based his recommendation on her 2005 injury, but should have viewed that injury as on a continuum of events that began with her initial injury in 1994.  She states, in effect, that the injury she incurred in 1994 meets the definition of "combat-related disability" under the provisions of U.S. Code and DODI 1332.38 as a disability resulting from an injury incurred under conditions simulating war.  She notes, in effect, that because the PEB did not categorize her disability as combat-related, she was unable to keep her job as a Military Technician. 

18.  DODI 1332.38 states a physical disability shall be considered combat-related if it makes the member unfit or contributes to unfitness and was incurred 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.


DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows no basis for correcting the applicant's DA Form 199 to show her disability is the result of a combat-related injury. 

2.  DODI 1332.38 provides examples of the types of military training under conditions simulating war that may result in a combat-related disability.  The examples are generally activities that involve risks unique to military training.  

3.  She injured her back in 1994 lifting a tent bag and again in 2005 lifting camouflage netting.  Although her initial injury occurred during a military exercise, the task itself was in no way unique to military training.  

4.  This being the case, her disability, while compensable by the VA, does not meet the standard established for classification as a combat-related disability.  Therefore, she is not entitled to the relief she has requested.  

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)                                         AR20100024553



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ABCMR Record of Proceedings (cont)                                         AR20100024553



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