IN THE CASE OF:	  

		BOARD DATE:	  18 October 2011

		DOCKET NUMBER:  AR20110008239 


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

	a.  Item 10a – 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 incurred in the line of duty during a period of war as defined by law.

	b.  Item 10b – Evidence of record reflects the Soldier was not a member or obligated to become a member of the Armed Forces or Reserve thereof, or the National Oceanic or Atmospheric Administration (NOAA) or the U.S. Public Health Service (USPS) on 24 September 1975.

	c.  Item 10c – The disability did not result from a combat-related injury as defined in Title 26, U.S. Code, section 104.

2.  The applicant states that all his disabilities occurred while he was in the line of duty in combat.  The combat injury of cervical stenosis rating of 40 percent occurred at Fort Polk, LA, and then progressed while he was deployed to Iraq while carrying heavy equipment and wearing protective combat gear.  His knee injury progressed and was injured even more while deployed and standing for long periods of time.


3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 199
* Medical Evaluation Board (MEB) Narrative Summary (NARSUM)
* Department of Veterans Affairs (VA) Rating Decisions, dated 2 and 29 November 2005
* DA Form 2173 (Statement of Medical Examination and Duty Status), dated 27 August 2003 and 19 February 2004
* multiple sick call slips and chronological records of medical care
* denial of Combat-Related Special Compensation (CRSC) letter

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 8 July 1957.

2.  The applicant's initial enlistment contract is not available for review with this case.  However, his Enlisted Record Brief listed his Date Initially Entered Military Service as 25 July 1977.  His DA Form 2-1 (Personnel Qualification Record – Part II) shows he served on active duty from 20 September 1977 to 24 February 1980.

3.  His records also show he enlisted in the Arkansas Army National Guard (ARARNG) on 16 April 1997 and held military occupational specialty 88M (Motor Transport Operator).  He was assigned to the 1123rd Transportation Company, North Little Rock, AR, and he served through multiple extensions.

4.  On 11 June 1998 during company physical fitness training, he reported that he twisted his knee playing basketball the previous day.  His injury was reviewed and determined to be in the line of duty by the Deputy Chief of Staff, Personnel, ARARNG.

5.  On 11 February 2003, he was ordered to active duty in support of Operation Enduring Freedom.

6.  On 24 February 2003, he was loading equipment at the Fort Polk, LA, rail head and noticed pain and swelling in his right knee.  He was treated at the North Fort Polk Troop Clinic and his injury was determined to be in the line of duty by the Adjutant General, Joint Readiness Training Center, Fort Polk, LA.

7.  On 24 March 2003, he injured his knee while playing basketball at Fort Polk, LA, and he was treated at Bayne-Jones Army Community Hospital, AR.  The DA Form 2173 stated, "Patient has a history of right knee injury.  Patient worked at rail yard loading trucks for the past few days then played basketball."  His injury was determined to be in the line of duty by the Adjutant General, Joint Readiness Training Center, Fort Polk, LA.

8.  On 25 September 2003, he was admitted to the hospital after having been previously involved in a motor vehicle accident.  The DA Form 2173 shows that on or about February 2003 while a passenger on a military vehicle, the driver lost control of the wheel and crashed his vehicle, causing injury and fracture to the applicant.  His injury was also determined to be in the line of duty by the Adjutant General, Joint Readiness Training Center, Fort Polk, LA.

9.  On 9 January 2004, he underwent an MEB physical examination.  His NARSUM shows:

* he complained of neck and shoulder pain, arm pain, and right knee pain
* his neck pain started on 20 February 2003 when his head hit the top of the van he was driving
* he deployed to Iraq where his pain was aggravated
* he underwent physical therapy
* he was given a permanent physical profile and referred to an MEB
* he also had right knee pain due to his 2002 injury and April 2003 re-injury
* he did not meet retention standards and was referred to the Physical Disability Evaluation System

10.  His MEB proceedings are not available for review with this case.  However, it appears an MEB convened and the MEB found the applicant had certain medically unacceptable conditions after consideration of clinical records, laboratory findings, and physical examinations.  It also appears the MEB recommended the applicant's referral to a PEB and he agreed with the MEB's findings and recommendation and indicated he did not desire to continue on active duty.

11.  On 15 March 2004, an informal PEB convened at Fort Sam Houston, TX.  The PEB found the applicant's conditions prevented him from performing the duties required of his grade and specialty and determined he was physically unfit due to various conditions.  The PEB rated him under the VA Schedule for Rating Disabilities (VASRD) and, as shown in items 8a, 8b, and 8g (Disability Description, VA Code, Percentage), he was granted the following:

* codes 8599/8510 – right C6-7 radiculopathy with weakness, sensory impairment, and electro-diagnostic confirmation, rated as mild
* code 5241 – status post-fusion with subjective pain with limitations of cervical motion due to pain

12.  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 PEB recommended the applicant's placement on the Temporary Disability Retired List (TDRL) by reason of temporary disability at a combined rating of 30 percent with reexamination in April 2005.  He concurred and waived his right to a formal hearing of his case.

13.  The applicant's DA Form 199 contains the following entries in item 10 (If Retired Because of Disability, the Board Makes the Recommended Finding that):

* 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 the line of duty during a period of war as defined by law
* the 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 or the USPHS on 24 September 1975
* the disability did not result from a combat-related injury as defined in Title 26, U.S. Code, section 104

14.  His PEB was approved by an official at the U.S. Army Physical Disability Agency on behalf of the Secretary of the Army.

15.  On 23 April 2004, the applicant was retired in accordance with paragraph 
4-24b(2) of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) by reason of temporary disability.  Item 26 (Separation Code) of his DD Form 214 shows the entry "SFK."

16.  On 2 November 2005, the VA awarded him service-connected disability compensation for congenital cervical stenosis with degenerative change in cervical spine from 24 April 2004.

17.  On 28 March 20011, he was denied CRSC for inflammation of all radicular nerves of his right hand with decreased sensation, knee condition - residuals, right knee injury status post, and spinal fusion congenital cervical stenosis with degenerative.  There was no evidence to show a combat-related event caused these conditions.

18.  Army Regulation 635-40 establishes the 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.

19.  Army Regulation 635-40 states that a disability may be considered a direct result of armed conflict if it 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; if a direct causal relationship exists between the armed conflict or the incident or operation and the disability; or if the disability which is unfitting was caused by an instrumentality of war and was incurred in the line of duty during a period of war.  A determination that a disability was caused by an instrumentality of war and incurred in the line of duty will be appropriate only when it is also determined that the disability so incurred in itself renders the member physically unfit and was incurred during one of the periods of war as defined by law.

20.  Appendix D of Army Regulation 635-40 provides instructions for completion of the DA Form 199.

	a.  Item 9:  Select recommendations for disposition of the Soldier from the following statements:  "permanently retired from the service"; "placed on the TDRL with reexamination during (month and year)"; "separated from military service without entitlement to disability benefits from the service"; "separated from the service with severance pay if otherwise qualified"; "retained on the TDRL with reexamination during (month and year)"; "revert to retired status"; or "other (specify)."

	b.  Item 10a:  Make the entry according to the provisions of paragraph 4-19j.  Make the entry in all cases other than those on the TDRL, although the entry pertains only to Soldiers who will be retired.

	c.  Item 10b:  Make the entry in all cases even though item 10b addresses only Soldiers who will be retired.  Check "was" if, on 24 September 1975, the individual was a member of the Armed Force of any country or Reserve Component of the Armed Force, the NOAA, the USPHS, or under a binding written commitment to become such a member.

	d.  Item 10c:  Make the entry in all cases even though item 10c addresses only Soldiers who will be retired.  Refer to paragraph 4-19k and the glossary to decide which block to check.

21.  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 or her 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; and

		(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.

22.  Title 26 U.S. Code, section 104, states 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 sustained several illnesses and/or injuries that clearly occurred in Arkansas or at Fort Polk and were caused by physical training, loading equipment, or a vehicle accident.  He subsequently deployed to Iraq where his injuries appear to have been aggravated.  He was returned to Fort Gordon, GA, where he underwent an MEB that referred him to a PEB.  The PEB determined he was physically unfit for further military service and recommended placing him on the TDRL.  He was counseled and concurred with the PEB's findings and recommendations and, accordingly, he was retired.

2.  The applicant does not meet the criteria to have items 10a, 10b, or 10c of his DA Form 199 corrected.  Item 10a of the DA Form 199 is a two-part requirement.

	a.  The applicant entered military service on 25 July 1977.  Therefore, he was not a member of the Armed Forces on 24 September 1975.

	b.  The applicant's injuries were caused by physical training, loading equipment, or a vehicle accident.  No evidence exists that shows these injuries were caused by a combat condition or an instrumentality of war.  The fact that his conditions may have been aggravated in the line of duty in a time of war or national emergency is not sufficient to change item 10a.

	c.  No evidence exists to show the retirement is based on disability resulting from an 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 period of war as defined by law.

3.  There is no error or injustice in this case.  In view of the circumstances in this case, there is insufficient evidence to grant him the 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 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)                                         AR20110008239



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ABCMR Record of Proceedings (cont)                                         AR20110008239



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