IN THE CASE OF:	  

		BOARD DATE:	    21 June 2011

		DOCKET NUMBER:  AR20100027339 


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, in effect, correction of his DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 14 April 2006, to show that his disability was combat-related.

2.  He states that:

	a.  block 10 his DA Forms 199, dated 14 April 2006 and 19 May 2008, failed to show that his disability was the result of combat-related injuries as defined in Title 26, U.S. Code, section 104 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-19k(1)(b)2; and

	b.  he was injured in training simulating war.

3.  He provides:

* His DD Forms 199, dated 14 April 2006 and 19 May 2008
* A Standard Form (SF) 513 (Consultation Sheet), dated 3 February 1999
* Three DD Forms 689 (Individual Sick Slip), dated 11 September 2005,
16 September 2005, and 11 October 2005
* Two SFs 600 (Chronological Record of Medical Care), dated
27 September and 11 October 2005
* 
A DA Form 2166-8 (NCO (Noncommissioned Officer) Evaluation Report (NCOER)), for the period June 2005 through November 2005

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 15 August 1995.  He was trained in and awarded military occupational specialty (MOS) 52D (power generation equipment repairer).  Through progression, he was awarded MOS 52X (special purpose equipment repairer).

3.  He submitted his SF Form 513, dated 23 February 1999, which shows he was referred to physical therapy due to 1 year of chronic lower back pain following a 12-mile rucksack march while attending air assault training.

4.  He submitted three DD Forms 689, which show he was seen by medical personnel for the following:

* 11 September 2005 for lower back pain and neck pain
* 16 September 2005 for lower back pain and middle back strain, constant pain in right leg, and radiant pain in lower back to hip
* 11 October 2005 for upper back spasms and lower back pain

5.  He submitted two SFs 600, which show on:

* 27 September 2005, he claims wearing an integrated body army system (IBAS) irritated his back; he was prescribed medication and returned to duty
* 
11 October 2005 he had an appointment for upper mid-back pain back; he received instruction regarding diagnosis, plan of care, medications, and follow-up

6.  He submitted an NCOER for the period June 2005 through November 2005, which shows in:

* Part IIId (Duty Description - Areas of Special Emphasis) the entry National Training Center (NTC) rotation and preparation for deployment
* Part IVc (Competence) the entry coordinated, planned, and executed the deployment of all unit sensitive items in support of Operation Iraqi Freedom 05-07
* Part IVd (Leadership) the entry displayed leadership and management ability when he managed the Brigade Internment Facility during NTC rotation 05-10 and managed railhead operations during the NTC rotation

7.  He submitted his DA Form 199, dated 14 April 2006, which shows in item 9 he was found to be physically unfit with a recommended combined disability rating of 50 percent (%) and that the applicant be placed on the temporary disability retired list (TDRL) with reexamination during October 2007.

8.  Item 10 of this DA Form 199 states the applicant's:

	a.  retirement was not based on disability from injury or disease received in the line of duty as a result of armed conflict or caused by an instrumentally of war and incurring in the line of duty during a period of war as defined by law.

	b.  disability was not the result of a combat-related injury as defined in
Title 26, U.S. Code, section 104.

9.  On 24 May 2006, he was honorably retired by reason of temporary disability.  Orders 125-0115, issued by Headquarters, III Corps, Fort Hood, TX, dated 5 May 2006, placed the applicant on the TDRL, effective 25 May 2006 with ratings of 30 percent (%) for Bipolar Disorder, 10% for Lumbar Spondylosis (back pain), 10% for Cervical Spondylosis (neck pain), and 10% for Right Shoulder Impingement Syndrome.  These orders state, in effect, the applicant's disability:

* was not 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 incurred in the line of duty during a war period as defined by law
* was not the result from a combat-related injury as defined in Title 26, U.S. Code, section 104

10.  He submitted his DA Form 199, dated 19 May 2008, which states that based on review of the TDRL examination, the applicant remained unfit to reasonably perform the duties required by his previous grade and military specialty.  The applicant's current condition was considered sufficiently stable for final adjudication.

11.  Item 9 of this DD Form 199 states the applicant was found to be physically unfit with a recommended combined disability rating of 80% and that the applicant be retired by reason of permanent disability.

12.  On 23 May 2008, having been advised of the findings and recommendation of the PEB, he concurred and waived a formal hearing of his case.

13.  Orders D157-07, issued by the U.S. Army Physical Disability Agency, Washington, DC, dated 5 June 2008, removed the applicant from the TDRL and permanently retired him with an 80% disability rating percentage.

14.  Title 10, U.S. Code, section 104 (Compensation for injuries or sickness), provides special rules for combat-related injuries and shows 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.

15.  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):

		(1)  If 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.  

   c.  subparagraph 4-19k(1)(b)2 states that conditions simulating war include, but are not limited to, the following activities:  performance of tactical exercises such as the squad or platoon in the assault; 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.
   
	d.  The U.S. Army Physical Disability Agency issued The Combat Related (10a/c) and Combat Zone (10d) Guide, Subject:  disability resulting from:  armed conflict; instrumentality of war; conditions of war; and those incurred in a combat zone, dated 3 February 2009, which issued guidance to PEB Presidents which specifically stated that “routine road marches” are “NOT properly designated as under conditions simulating war.”  This same guidance stated that “Injuries during field training exercise (FTX)s and training exercises must still be the result of conditions simulating war and not just occurring at the time of the FTX or exercise.”

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the entry in block 10 of his DA Form 199, dated 14 April 2006, should be corrected to read "disability resulted from combat- related injuries as defined in Title 26, U.S. Code, section 104 because his injury were the result of training simulating war.

2.  The evidence of record shows his PEB decision document contains a narrative on his unfitting condition (i.e., Bipolar I Disorder Mixed Type, Lumbar Spondylosis without Neurologic Abnormality, Cervical Spondylosis 
(neck pain), and Right Shoulder Impingement Syndrome), none of which could be described as combat related as they pertain to the DA Form 199, items 
10 a/c.  

3.  He was reevaluated in 2008 and it was found that his condition was sufficiently stable for final adjudication.  As a result, he was removed from the 
TDRL and placed on the Retired List by reason of permanent disability for the same unfitting conditions and under the same circumstances that resulted in his placement on the TDRL.  Therefore, no additional entry was required in block 10 of his DA Form 199, dated 19 May 2008.

4.  Evidence of record shows that he sustained muscle strain during a 12-mile road march during training that did not take place under conditions that simulated war.  There is no evidence, and the applicant provided insufficient evidence showing that his injury was incurred as a direct result of armed conflict, while engaged in extra-hazardous service, under conditions simulating war, or caused by an instrumentality of war as defined by Title 26, U.S. Code, section 104.

5.  In view of the foregoing, there is insufficient evidence to warrant granting the applicant's 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)                                         AR20100027339



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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