IN THE CASE OF:	  

		BOARD DATE:	  13 October 2011

		DOCKET NUMBER:  AR20110003869 


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

	a.  "Completed over 4 years of active duty service as Enlisted (Enl) or Warrant Officer (WO):  No";

	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 incurred in the LOD during a period of war as defined by law:  No"; and

	c.  "Disability resulted from a combat related injury as defined in 26 U.S.C. 104 (Title 26, U.S. Code, section 104):  No."

2.  The applicant states his injuries are the result of actions related specifically to simulated war training.

3.  The applicant provides:

* Retirement order
* Memorandum
* Medical Evaluation Board (MEB) Proceedings
* MEB Narrative Summary (NARSUM)


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's military records show he enlisted in the Regular Army on 3 August 1982.  He was trained in and awarded military occupational specialty (MOS) 11B (Infantryman) and continuously served through multiple periods of reenlistment.

3.  A Walter Reed Army Medical Center (WRAMC), MEB NARSUM, dated          5 December 2001, shows the applicant underwent a medical examination for the chief complaint of "back pain and left greater than right knee pain as well as other problems addressed elsewhere."  The "History of Present Illness" shows the applicant:

   a.  is a 37 year old active duty male with a history of bilateral lower extremity symptoms that began in the early 1980s, when he fell off a truck at that time and had some back and knee bruises;
   
   b.  having fallen from the truck, did well for several years, until he fell eight feet from a helicopter with his full rucksack and weapon in the early 1990s during a field training exercise at Fort Campbell, Kentucky;
   
   c.  following initial evaluation and non-operational treatment with physical therapy, anti-inflammatories, and a modification of activities, he had persistent bilateral knee, left greater than right, and low back pain; and
   
   d.  was evaluated several times and ultimately assigned a "P3" permanent profile resulting in his evaluation by an MOS Medical Retention Board (MMRB) where he was referred to the current MEB.
   

4.  The WRAMC MEB NARSUM shows the applicant received the following medical diagnoses:

* Low back pain, non-radiating without radiculopathy, medically unacceptable
* Anterior knee pain (chondromalacia), medically unacceptable
* Migraine headaches, medically acceptable
* Adjustment disorder, medically acceptable
* Sleep apnea, medically unacceptable

5.  Based on the applicant's diagnoses, the WRAMC MEB recommended the applicant continue with his current permanent profile.

6.  On 28 January 2002, an MEB convened and after consideration of clinical records, laboratory findings, and physical examinations, the MEB recommended the applicant's case be forwarded to a Physical Evaluation Board (PEB) for disposition based on his medically unacceptable findings.  On 14 February 2002, the applicant agreed with the MEB’s findings and recommendation.

7.  The applicant's record shows he was evaluated during the period 12 June through 5 August 2002, for each of his conditions identified on the WRAMC NARSUM.  An addendum to the MEB for each of these conditions was initiated.  (The reasons for the additional evaluations are unknown).

8.  On 14 August 2002, a second MEB convened and having considered the medical evidence of record, again referred the applicant's case to a PEB.  On 28 August 2002, the applicant acknowledged his review of all of the updated reports.

9.  On 3 September 2002, a PEB at Washington, DC considered the applicant’s case.  That PEB determined the applicant's non-radiating low back pain and bilateral knee pain rendered him unfit for further military service and recommended he receive a combined rating of zero percent and permanent disability retirement.

10.  The PEB also considered his other medical condition(s) as listed on the MEB; however, these conditions were not found to be unfitting and therefore they were not rated.  The applicant concurred and waived his right to a formal hearing of his case.

11.  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):
	a.  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.

	b.  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.

	c.  The disability did not result from a combat-related injury as defined in Title 26, U.S. Code, section 104.

12.  On 26 September 2002, the applicant concurred with the PEB findings and waived a formal hearing of his case.  On 1 October 2002, his PEB was approved by an official at the U.S. Army Physical Disability Agency on behalf of the Secretary of the Army.

13.  On 8 January 2003, XVIII Airborne Corps and Fort Bragg published Orders Number 008-0253 directing the applicant’s retirement by reason of permanent disability.  It includes the following three entries:

* Completed over 4 years of active duty service as Enl or WO: No
* Disability is based 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 line of duty during a period of war as defined by law: No
* Disability resulted from a combat related injury as defined
in 26 U.S.C. 104: No

14.  On 25 January 2003, the applicant was retired, in the rank of sergeant first class/E-7, by reason of "Disability, Permanent" having completed a total of 
20 years, 5 months, and 23 days of active military service.  The
DD Form 214 he was issued at the time shows the separation authority as Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(1).

15.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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 or her office, grade, rank, or rating.

16.  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.

17.  Title 26 U. S, Code, section 104 states 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 three corrections should be made to his retirement orders.

2.  The evidence of record confirms the applicant enlisted in the RA and continuously served until he was retired by reason of permanent disability having completed over 20 years of active duty service.  Therefore his retirement order should be corrected to show the entry "Yes" thereby confirming he completed over 4 years service in an enlisted status.

3.  The evidence of record as indicated on the WRAMC MEB NARSUM confirms the applicant initially injured himself and complained of back and knee bruises after falling off the rear end of a truck in the early 1980's.  It also shows he injured himself a second time in the early 1990's when he fell eight feet exiting a helicopter with his full rucksack and weapon.  

4.  He contends his injuries are the result of actions related specifically to simulated war training.  However, there is no evidence of record and he provides no evidence to show what exactly he was doing when he incurred those injuries. In view of the circumstances in this case and the available evidence, there is insufficient evidence to grant him any further relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending XVIII Airborne Corps and Fort Bragg, Orders Number 008-0253 dated 8 January 2003, his retirement order, to show the entry "YES" under the heading "Completed over 4 years of active service as Enl or WO."

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to correcting any other entries on his retirement orders.




      _______ _   _______   ___
               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)                                         AR20110003869





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ABCMR Record of Proceedings (cont)                                         AR20110003869



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