IN THE CASE OF:	  

		BOARD DATE:	  29 September 2011

		DOCKET NUMBER:  AR20110003439 


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, that item 10d of her DA Form 199 (Physical Evaluation Board (PEB) Proceedings) be changed to show 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.  As a result of this correction, she further requests her disability severance pay be based on 6 years of service.

2.  The applicant states an Army PEB incorrectly found, and the U.S. Army Physical Disability Agency (USAPDA) incorrectly declined to revise the PEB finding, that her disability was not incurred during the performance of duty in combat-related operations based on Department of Defense (DOD) guidance that is unlawful and invalid because it impermissibly narrows the meaning of the term "combat-related" in violation of the National Defense Authorization Act of 2008.

3.  The applicant provides:

* DA Form 199, dated 22 April 2009
* DA Form 199, dated 5 June 2009
* DA Form 751 (Waiver of Formal Physical Evaluation Board (PEB)), dated 5 June 2009
* discharge orders


COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant's records be corrected to reflect that her disability was incurred in combat-related operations and that she receive disability severance pay in pay grade E-5 computed on the basis of 6 years of service.

2.  Counsel states the DOD guidance is invalid because it is inconsistent with existing statutory and regulatory authority, it creates conflicting definitions of the term "combat-related," and contrary to Congressional intent, reduces rather than enhances disability benefits for Soldiers.  Her disability was "combat-related" because it was incurred in the performance of duty under conditions simulating war.  He states because her disability was combat-related, the calculation of her disability severance qualified for the enhanced 6 years of service provision because her disability was "incurred during the performance of duty in combat-related operations."  By limiting a disability incurred as a result of combat-related operations to only those circumstances constituting armed conflict, the Under Secretary of Defense memorandum, dated 13 March 2008, subject:  Directive-Type Memorandum (DTM) on Implementing Disability-Related Provisions of the National Defense Authorization Act of 2008, unlawfully circumscribes the term combat-related.

3.  Counsel chronicles the events surrounding the applicant's disability and her experience with the PEB and USAPDA.  Counsel also provides a legal analysis of the statutes which govern whether a condition should be classified as combat related.

4.  Counsel provides a 14-page brief and email correspondence between him and USAPDA.

CONSIDERATION OF EVIDENCE:

1.  She enlisted in the New York Army National Guard (NYARNG) on 21 November 1997.  She previously served 1 year, 10 months, and 15 days in the NYARNG.  Her military occupational specialty was 94E (Radio and Communications Security Repairer).

2.  On 18 August 2000, a line-of-duty investigation determined a back injury she incurred while moving a computer at Fort Drum, NY, on 17 August 2000 was in the line of duty.

3.  She was ordered to active duty effective 24 May 2004 in support of Operation Iraqi Freedom.  She served in Kuwait/Iraq from 4 January to 5 November 2005.  She was released from active duty on 23 November 2005.

4.  A DA Form 199, dated 22 April 2009, shows an informal PEB found her physically unfit for chronic low back pain.

	a.  The PEB stated she had a history of back pain since 2000 exacerbated by individual body armor (IBA) wear in Iraq in 2005.  The PEB recommended a combined rating of 10 percent and that the applicant be separated with severance pay if otherwise qualified.

	b.  Item 10c stated her disability did not result from a combat-related injury.

	c.  Item 10d stated her disability was not incurred in a combat zone or incurred during the performance of duty in combat-related operations as designated by the Secretary of Defense.

5.  On 29 April 2009, she did not concur with the findings of the PEB and she requested a formal hearing.

6.  On 5 June 2009, a new DA Form 199 was issued as an administrative correction to the DA Form 199, dated 22 April 2009, to correct item 10c.

	a.  The PEB added the statement:  "Soldier injured her back during [military operations on urbanized terrain] site training of clearing a building while in full 'battle rattle' to include IBA with plates, Kevlar, and weapon at Fort Drum, NY, in June 2004 during a period of war."

	b.  Item 10c was corrected to show her disability did result from a combat-related injury.

	c.  Item 10d still showed the disability was not incurred in a combat zone or incurred during the performance of duty in combat-related operations as designated by the Secretary of Defense.

	d.  All other provisions of the original DA Form 199 remained the same.

7.  On 5 June 2009, she agreed with the revised findings on the DA Form 199 and withdrew her demand for a formal hearing.

8.  On 16 July 2009, she was discharged from the Army National Guard.  She was authorized disability severance pay in pay grade E-5 based on 4 years, 8 months, and 9 days of active service.

9.  Counsel provided email between himself and USAPDA.

	a.  He requested assistance in changing item 10d of the applicant's DA Form 199.  He contended the preparation or training for armed conflict is included in the definition of combat-related.

	b.  USAPDA responded indicating that a disability that is combat-related (item 10c) does not automatically equal item 10d.  For item 10d, the disability must still be incurred in a combat zone or as a direct result of armed conflict (paragraph 5.5.8, DTM, dated 13 March 2009).

	c.  Counsel contended that DOD Instruction (DODI) 1332.38, paragraph 5.5.8, as modified by the DTM, is inconsistent with other provisions of DODI 1332.38 that was not modified by the DTM which also defines the term "combat-related" (paragraph E3.P5.2.2).

	d.  USAPDA responded that the DTM clearly states that only combat zones and E3.P5.1.2 of DODI 1332.38 (armed conflict) is the definition to be used and USAPDA sees no inconsistency at this time.

	e.  USAPDA stated a review of the PEB Proceedings would not result in any change to the PEB's findings.  The Soldier's back pain began in 2000 with a specific incident and she had another specific training accident in 2004.  It does not appear that the current condition of her back was "incurred" in a combat zone.

10.  The Fiscal Year 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 the 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.

11.  Title 10, U.S. Code, section 1212(a)(1), states that upon separation from an Armed Force under section 1203 or 1206 of this title, a member is entitled to disability severance pay computed by multiplying the member's years of service computed under section 1208 of this title (subject to the minimum and maximum years of service provided for in subsection (c)) and twice the amount of monthly basic pay (based on his status at the time).

12.  Title 10, U.S. Code, section 1212(c)(1), states the minimum years of service of a member for purposes of subsection (a)(1) shall be:

	a.  6 years in the case of a member separated from the Armed Forces for a disability incurred in the line of duty in a combat zone (as designated by the Secretary of Defense for purposes of this subsection) or incurred during the performance of duty in combat-related operations as designated by the Secretary of Defense or

	b.  3 years in the case of any other member.

13.  DODI 1332.38 (Physical Disability Evaluation) implements policy, assigns responsibilities, and prescribes procedures under DOD Directive 1332.18 (Separation or Retirement for Physical Disability) and Title 10, U.S. Code.

	a.  Paragraph E3.P5.1.2 (Armed Conflict) states that physical disability is a disease or injury incurred in the line of duty as a direct result of armed conflict.  The fact that a member may have incurred a disability during a period of war or in an area of armed conflict or while participating in combat operations is not sufficient to support this finding.  There must be a definite causal relationship between the armed conflict and the resulting unfitting disability.

	b.  Paragraph E3.P5.1.2.1 states that armed conflict includes a war, expedition, occupation of an area or territory, battle, skirmish, raid, invasion, rebellion, insurrection, guerrilla action, riot, or any other action in which service members are engaged with a hostile or belligerent nation, faction, force, or terrorists.

	c.  Paragraph E3.P5.2.2 states a physical disability shall be considered combat-related if it makes the member unfit or contributes to unfitness and was incurred under the following circumstances:

		(1)  as a direct result of armed conflict.  The criteria are the same as in paragraph E3.P5.1.2,

		(2)  while engaged in hazardous service,

		(3)  under conditions simulating war, or

		(4)  caused by an instrumentality of war.

14.  The DTM from the Under Secretary of Defense, dated 13 March 2008, revises and supplements DODI 1332.38.

	a.  A new paragraph 5.5.8 directed the Secretaries of the Military Departments to identify and certify members with a disability incurred in the 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.

	b.  Paragraph 5.5.8.1 states the determination of "incurred during performance of duty in combat-related operations" shall be made consistent with criteria set for the paragraph E3.P5.1.2 of DODI 1332.38.

	c.  The DTM specifically states there is no change to paragraph E3.P5.1.2.

DISCUSSION AND CONCLUSIONS:

1.  A member's disability severance pay is computed using 6 years of minimum active service if the disability was incurred in the line of duty in a combat zone (as designated by the Secretary of Defense) or incurred during the performance of duty in combat-related operations as designated by the Secretary of Defense.

2.  The DTM, dated 13 March 2008, clearly states that only combat zones and armed conflict in paragraph E3.P5.1.2 of DODI 1332.38 are the definitions to be used for entitlement to enhanced severance pay.  The DTM specifically states there is no change to paragraph E3.P5.1.2 of DODI 1332.38.

3.  Counsel consistently contends that combat operations include "combat-related."  DODI 1332.38 clearly defines combat-related as including training under conditions simulating war.  However, the DODI also clearly states that only disabilities incurred during armed conflict or while participating in combat operations are eligible for enhanced severance pay.  While a disability incurred in armed conflict or participation in combat operations would certainly be combat-related, a disability can be combat-related without the Soldier ever having been in a combat zone or participating in a combat operation.

4.  The PEB states her back pain began in 2000 and she injured her back at Fort Drum, NY, in June 2004 under conditions simulating war.  However, she was not in an area of armed conflict or participating in combat operations.  Training under conditions simulating war does not constitute a combat operation. 
There is no definite causal relationship between armed conflict and her resulting 
unfitting disability.  Her disability does meet the criteria for determination of combat-related, but does not meet the criteria for determination of having been incurred due to armed conflict.  Therefore, she is not entitled to enhanced severance pay based on a minimum of 6 years of active service.

5.  In view of the above, the entry in item 10d of her DA Form 199 is correct.

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 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)                                         AR20110003439



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ABCMR Record of Proceedings (cont)                                         AR20110003439



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