IN THE CASE OF:	  

		BOARD DATE:	  1 November 2011

		DOCKET NUMBER:  AR20110009536 


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 her records as follows:

* Awarding her 8 months and appropriate number of days of service credit in order for her records to reflect 20 years of active service
* Her migraines that were sustained in a training accident be considered combat related

2.  The applicant states:

* She was never given the opportunity to apply for continuation on active duty (COAD)
* The Physical Evaluation Board Liaison Officer (PEBLO) failed to properly counsel her
* The PEBLO failed to ensure her DA Form 5893 (Soldier's Medical Evaluation Board (MEB)/PEB Counseling Checklist) completed or signed
* A statement was never submitted with her PEB regarding her accepting or declining COAD
* She informed the doctor that the source of her migraines and Post-Traumatic Stress Disorder (PTSD) were sustained during war training and mobilization training
* The doctor failed to word her conditions as such on her Narrative Summary (NARSUM) and indicated that they were not combat related
* This action has hindered her ability to apply for Combat-Related Special Compensation (CRSC)
* She is now unable to work and she needs all the benefits
* She does not have a copy of her 1990 deployment order and the guilt and shame have prevented her from discussing this issue

3.  The applicant provides the following documentary evidence:

* DA Form 5893
* DA Form 199 (PEB Proceedings)
* Chronological Record of Medical Care
* Extract of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* MEB/PEB slide presentation

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 12 May 1988 and held military occupational specialty (MOS) 75E (Personnel Actions Specialist).  She served through a reenlistment and she was honorably discharged on 20 July 1994 by reason of having completed her required service. 

2.  Prior to her discharge from the Regular Army, she enlisted in the U.S. Army Reserve (USAR), on 14 March 1994, and she served through multiple USAR reenlistments.  

3.  She entered active duty on 17 May 1998 in an Active Guard Reserve (AGR) status and served in a variety of stateside or overseas assignments.  She attained the rank/grade of sergeant first class (SFC)/E-7. She was assigned to the 89th Regional Readiness Command, Wichita, KS; then the USAR Readiness Command, Fort Jackson, SC; and then the 81st Regional Support Command, Fort Jackson, SC.

4.  On 19 October 2006, she was issued a Notification of Eligibility for Retired Pay at Age 60 (20 year letter).  This letter notified her that she had completed the required years of service and she would be eligible for retired pay upon application at age 60.

5.  On 10 March 2009, she was attached to the Warrior Transition Unit, U.S. Army Medical Department Activity, Fort Jackson, SC, for medical treatment, and on 5 May 2009, she participated in a neuropsychological evaluation as an outpatient to aid in differential diagnosis and treatment planning.  She had been reporting progressive cognitive decline over the past year and she was unable to identify any clear precipitating events to her cognitive decline.  She previously had two instances of concussion, the first occurring in 1997 when she struck her head on a vehicle tailgate.

6.  On 2 September 2009, she underwent counseling pertaining to the physical disability evaluation system (PDES).  The counseling checklist is incomplete and unsigned; however, it shows she had been counseled regarding the MEB steps, her right to have her case reviewed by an impartial professional, and how to submit more evidence for consideration by the MEB.  Additionally, she was counseled regarding the criteria and procedures for requesting continuance on active duty or continuance in the Active Reserve (COAD/COAR).  She placed her initials on the counseling checklist indicating she had been counseled regarding this item.

7.  Her NARSUM, dated 14 December 2009, shows she had been receiving intensive mental health treatment since approximately April 2007 for depressive and anxiety symptoms.  Her symptoms were associated with multiple traumatic life experiences which had been exacerbated by multiple occupational and family stressors (attempted sexual assault, divorce, verbal and emotional abuse).  Her diagnosis was as follows:

* Axis I: PTSD
* Axis I: Major depressive disorder, single episode, severe without psychotic  features, chronic
* Axis II: None
* Axis III: Migraine headache, low back pain, gastro-esophageal disease (GRD), neck pain, urinary incontinence, degenerative joint disease, wrist pain, and shoulder pain
* Axis IV: chronic illness; occupational; parent-child relational problems

It was determined that her PTSD and major depressive disorder did not meet retention standards and she was recommended for entry into the PDES.

8.  On 21 September 2009, she complained of hearing loss.  The record also shows "the accident occurred at a military training facility (training accident) - hit head on truck during field training and lost consciousness." 

9.  On 14 April 2010, an MEB convened at Fort Jackson, SC, and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found she was diagnosed as having the medically-unacceptable conditions of chronic PTSD, major depressive disorder, chronic migraine headaches, obsessive compulsive disorder, trichotrillomnia intertwined with obsessive compulsive disorder, chronic neck pain due to cervical degenerative disc disease, and chronic lower back pain due to degenerative disk/joint disease. She was also diagnosed with the medically-acceptable conditions of bilateral knee pain, bilateral shoulder pain, and GRD.   The MEB recommended her referral to a PEB.

10.  On 27 April 2010, after having been counseled, she agreed with the MEB's findings and recommendation.  She indicated she had reviewed the contents of the MEB and the NARSUM and that the PEB would consider and review only those conditions listed by the MEB.  She further acknowledged the medically-unacceptable conditions are properly listed on her MEB and that the MEB covered all her medical conditions. 

11.  On 20 May 2010, an informal PEB convened at Walter Reed Army Medical Center and found the applicant's conditions prevented her from performing the duties required of her grade and specialty and determined she was physically unfit due to various conditions.  The PEB rated her under the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) and, as shown in items 8a, 8b, and 8g (Disability Description, VA Code, Percentage), she was granted the following:

	a.  Code 9411, PTSD, major depressive and obsessive compulsive disorder.  These conditions were not a battle injury or the result of an instrumentality of war; and did not occur in theater; 50%;

	b.  Code 8100, migraine headaches; this condition was not a battle injury or the result of an instrumentality of war; and did not occur in theater; 30%;

	c.  Code 5003, degenerative arthritis of the thoracolumbar listed as chronic lower back pain due to lumbar degenerative disc disease and degenerative joint disease; this condition was not a battle injury or the result of an instrumentality of war; and did not occur in theater; 20%;

	d.  Code 5003, degenerative arthritis of the cervical spine listed as chronic neck pain due to cervical degenerative disc disease; this condition was not a battle injury or the result of an instrumentality of war; and did not occur in theater; 20%.

12.  The PEB also considered two other medical conditions, apparently listed on her MEB, but were found to have met retention standards and did not render her unfit.  Since they were not found to be unfitting, they were not rated.  The PEB recommended the applicant be permanently retired by reason of disability at a combined rating of 60%.  


13.  On 24 May 2010, the counselor entered the statement "I have informed the Soldier of the findings and recommendations of the PEB and explained to her the results of the findings and recommendations and her legal rights pertaining thereto.  The Soldier made the elections shown above." 

14.  Subsequent to this counseling, the applicant concurred with the findings and recommendations of the PEB and waived her right to a formal hearing of her case.  

15.  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):

* 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 incurring in line of duty during a period of war as defined by law
* Item 10B - 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
* Item 10C - The disability did not result from a combat-related injury as defined in Title 26, U.S. Code, section 104 

16.  On 26 May 2010, her PEB was approved by an official at the U.S. Army Physical Disability Agency on behalf of the Secretary of the Army.

17.  On 11 October 2010, the applicant was honorably retired in accordance with Army Regulation 635-40, paragraph 4-24B (1) by reason of physical disability.  Item 26 (Separation Code) of her DD Form 214 shows the entry "SFJ."  She completed a total of 19 years, 3 months, and 28 days of creditable active service.

18.  Army Regulation 635-40 (6 February 2006) establishes the Army 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 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 line of duty during a period of war.  A determination that a disability was caused by an instrumentality of war and incurred in 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 for instructions for completion of the DA Form 199 and states the following:

	a.  Block 9:  Select recommendations for disposition of the Soldier from the following statements: "Permanently retired from the service"; "Placed on the TDRL (Temporary Disability Retired List) with reexamination during (month and year)"; "Separated from the military service without entitlement to disability benefits from the service"; "Separate 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 block 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 (RC) 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 block 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 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.  

22.  Title 26 U. S, Code, section 104 states, in pertinent part, 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 claims her migraines resulted from a training accident; however, there is no evidence to show the accident occurred while under conditions simulating war or caused by an instrumentality of war.  She also sustained several other illnesses and/or injuries, none of which was a battle injury or the result of an instrumentality of war or occur in theater.  She underwent an MEB that referred her to a PEB.  The PEB determined she was physically unfit for further military service and recommended her permanent retirement.  However, she does not meet the criteria to have block 10a of her DA Form 199 corrected.

2.  The evidence of record shows she was counseled and concurred with the PEB's findings and recommendations and waived her right to a formal hearing of her case.  The fact that the counseling checklist she submits is incomplete does not invalidate her PEB findings and recommendations.  Additionally, she acknowledged that she had been counseled regarding the criteria and procedures for requesting COAD/COAR by placing her initials on the counseling checklist.

3.  Her counseling checklist is dated 2 September 2009 but her PEB did not convene until May 2010 and she was not retired until over a year later in October 2010.  There would have been plenty of time to inquire and submit a request for COAD/COAR if she intended to do so.  

4.  The applicant did not complete 20 years of active service and it would not be appropriate to correct her records to show she did so.

5.  In view of the circumstances in this case, there is insufficient evidence to grant her 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 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)                                         AR20110009536



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110009536



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1