IN THE CASE OF:	  

		BOARD DATE:	  13 December 2011

		DOCKET NUMBER:  AR20110009655 


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 the following two entries on his retirement orders be changed to yes:

* 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 was and incurred in the line of duty during a period of war as defined by law:  No

* Disability resulted from a combat-related injury as defined in 26 United States Code (USC) 104:  No

2.  The applicant states Congress passed a law in 2008 that amends sections 1201 and 1203 of the USC to adopt the same presumption of soundness used by the Department of Veterans Affairs (VA) that a disability is incurred while on active duty if the disability was not noted at the time of entrance … and was not aggravated by military service.  There are inconsistencies between his DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 1 March 2005, and his DA Form 3947 (Medical Evaluation Board (MEBD) Proceedings, dated 
9 February 2005.

3.  The applicant provides the following documents:

* DA Form 3974
* DA Form 199
* Orders for separation, dated 16 March 2005
* DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 27 April 2005
* DD Form 2648 (Preseparation Counseling Checklist)
* Enlisted Record Brief
* Department of the Air Force memorandum, Subject: Physical Disability Board of Review (PDBR), dated 8 March 2011, with Record of Proceedings and case file
* two letters from the Army Review Boards Agency (ARBA), dated 15 March 2011
* a letter from the Installation Management Agency (IMA) at Fort Carson, CO, dated 13 April 2011
* IMA Orders 103-0034, dated 13 April 2011
* a letter from the U.S. Army Physical Disability Agency, dated 18 April 2011

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 6 January 1997.  He completed training and he was awarded military occupational specialty 35F (Special Devices Repairer).  He was deployed to Iraq from April 2003 to March 2004.

2.  On 9 February 2005, an MEBD found he did not meet retention standards due to a major depressive disorder (MDD) that existed prior to service which was permanently aggravated by service.  The MEBD also determined his MDD was in the line of duty.

3.  The Narrative Summary (NARSUM) stated he had problems with depression as a child and as a teenager including a suicide attempt at age 12 or 13.  After his enlistment in the Army at age 22 he had no further problems with his mood until his deployment to Iraq.  He was overwhelmed by the stress of deployment, "Dear John" letters, and what he perceived as an uneven distribution of tasks.  After 4 days of rest and relaxation (R&R) the duties had been redistributed and he was able to complete the deployment.  After he was assigned to Fort Carson in April 2004 his stress continued, including being served with separation papers from his wife and dealing with serious family financial difficulties.  The downward spiral of his mood resulted in an overdose of valium and hospitalization in a psychiatric facility for 4 days in July 2004.  His mood improved after he got married and continued to receive treatment.  However, his psychiatrist determined that permanent duty limitations were required and he was referred for an MEBD.

4.  On 1 March 2005, a PEB found him unfit for duty for MDD.  

	a.  His history indicated substantial problems with depression as an adolescent and teenager, but did well for several years.  He was recently significantly depressed, requiring two hospitalizations in July - September 2004 associated with suicidal attempts.  Although significantly improved, he continues to require close medical management and psychiatric treatment.

	b.  A combined disability rating of 10 percent (%) was recommended and separation with severance pay, if otherwise qualified.

	c.  His retirement was 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.

	d.  On 11 March 2005, he concurred with the PEB's findings and recommendation and waived a formal hearing of his case.

5.  IMA Orders 075-004, dated 16 March 2005, reassigned him for transition processing and discharge with severance pay.  The following items are listed in the additional instructions of the orders:

	a.  Disability is based on injury or disease received in the LOD (line of duty) as a direct result of armed conflict or caused by an instrumentality of was and incurred in the line of duty during a period of war as defined by law:  No; and 

	b.  Disability resulted from a combat related injury as defined in 26 USC 104:  No.

6.  On 27 April 2005, he was discharged by reason of disability with severance pay.

7.  On 8 March 2011, the PDBR recommended his separation be recharacterized to reflect permanent disability retirement with the combined disability rating of 
30%.  The board unanimously concluded his condition was not a result of a highly stressful event.

8.  On 15 March 2011, the Deputy Assistant Secretary (Army Review Boards) accepted the recommendation of the PDBR and directed his separation by reason of permanent disability retirement effective the date of his original medical separation for disability with severance pay.

9.  IMA Orders 103-0034, dated 13 April 2011, retired him for permanent physical disability effective 27 April 2005 with a 30% disability rating.  The following items are listed in the additional instructions of the orders:

	a.  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 was and incurred in the line of duty during a period of war as defined by law:  No; and 

	b.  Disability resulted from a combat related injury as defined in 26 United States Code (USC) 104:  No.

10.  Department of Defense Instruction (DODI) 1332.38 (Physical Disability Evaluation) defines armed conflict and instrumentality of war.

	a.  E3.P5.1.2. Armed conflict.  The 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.  E3.P5.1.2.1. 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.  E3.P5.2.2. Combat-related. This standard covers those injuries and diseases attributable to the special dangers associated with armed conflict or the preparation or training for armed conflict.  A physical disability shall be considered combat-related if it makes the member unfit or contributes to unfitness and was incurred under any of the circumstances listed in paragraphs E3.P5.2.2.1. through E3.P5.2.2.4., below.

		(1)  E3.P5.2.2.1. As a direct result of armed conflict.  The criteria are the same as in paragraph E3.P5.1.2., above.

		(2)  E3.P5.2.2.2. While engaged in hazardous service. Such service includes, but is not limited to, aerial flight duty, parachute duty, demolition duty, experimental stress duty, and diving duty.

		(3)  E3.P5.2.2.3. Under conditions simulating war. In general, this covers disabilities resulting from military training, such as war games, practice alerts, 

tactical exercises, airborne operations, leadership reaction courses; grenade and live fire weapons practice; bayonet training; hand-to-hand combat training; repelling, and negotiation of combat confidence and obstacle courses.  It does not include physical training activities, such as calisthenics and jogging or formation running and supervised sports.

	d.  E3.P5.2.2.4. Caused by an instrumentality of war. Incurrence during a period of war is not required.  A favorable determination is made if the disability was incurred during any period of service as a result of such diverse causes as wounds caused by a military weapon, accidents involving a military combat vehicle, injury, or sickness caused by fumes, gases, or explosion of military ordnance, vehicles, or material.  However, there must be a direct causal relationship between the instrumentality of war and the disability.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence showing his MDD was the result of a highly stressful event.  The NARSUM indicated he had problems with depression well before he enlisted in the Army.  While deployed to Iraq he had stresses such as the stress of deployment, "Dear John" letters, and the uneven distribution of tasks.  However, none of these stresses were the result of armed conflict, combat-related injury, or an instrument of war as defined in DODI 1332.38.  After he returned from deployment he was hospitalized due to an overdose of valium.

2.  The PEB determined the applicant's retirement was 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.  The applicant concurred with this determination.

3.  The PDBR unanimously concluded his MDD was not a result of a highly stressful event.

4.  His MDD was determined to be incurred in the line of duty.  However, it was not based on an injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality.  His MDD did not result from a combat related injury. 

5.  In view of the foregoing, there is no basis to change the additional instructions on IMA Orders 103-0034, dated 13 April 2011.

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)                                         AR20110009655



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ABCMR Record of Proceedings (cont)                                         AR20110009655



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