IN THE CASE OF:	  

		BOARD DATE:	  17 January 2012

		DOCKET NUMBER:  AR20110013542 


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:

	a.  His retirement IS 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.

	b.  The disability DID result from a combat-related injury as defined by Title 26, U.S. Code, section 104.

2.  The applicant states his Medical Evaluation Board (MEB) Proceedings, dated 18 January 1991 [sic], correctly recorded the cause of his accident as a fall from the back of a 5-ton truck.  The MEB indicated the accident was in the line of duty at a time of national emergency.  The accident was caused by an instrumentality of war and under conditions simulating war; however, the PEB Proceedings, dated 28 February 1991, failed to indicate such.  The PEB's recommended findings indicate the retirement is not based on disability from injury or disease received in the line of duty as a result of armed conflict or caused by an instrumentality of war (5-ton truck) and incurring in the line of duty during a period of war as defined by law.  It appears the PEB Proceedings contain conflicting information in items 8b, 8c, 8d, 8e, and 8f which also indicate his service during Operation Desert Shield.  This does not correspond to the PEB's recommended finding that the retirement is not based on disability from injury or disease received in the line of duty as a 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.  Since his disability was caused by an instrumentality of war and during training simulating war, the PEB should state so.  At the time he underwent the PEB Proceedings, he failed to read the proceedings.  If he had read the complete package, he would have discovered the error.  It appears the standard paragraphs were inserted in item 10 of the PEB Proceedings which do not correspond with items 8b, 8c, 8d, 8e, and 8f of the proceedings.

4.  The applicant provides the following documentary evidence:

* MEB Narrative Summary (NARSUM)
* Clinical records
* MEB Proceedings
* medical hold orders
* Department of Veterans Affairs (VA) Rating Decision
* DD Form 214

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.  Having prior enlisted service, the applicant's records show he enlisted in the Regular Army on 24 January 1984 and held military occupational specialty 54B (Chemical Operations Specialist).  He served through multiple reenlistments in a variety of stateside and overseas assignments and attained the rank/grade of sergeant first class.

3.  His records show he served in Germany and Korea.  He also served in Southwest Asia in support of Operation Desert Shield from 2 to 15 December 1990.


4.  His NARSUM shows:

	a.  He sustained a fracture to his right wrist when he fell from the back of a 
5-ton truck in 1983.  His wrist was casted for 6 to 8 weeks.  He underwent a bone graft the following year, but it failed.  He then underwent insertion of a silastic prosthesis in 1985, but that also failed.  He then had wrist fusion in 1988 and he did well, but he developed pain the mid-region of the carpometacarpal joint index, middle, and ring fingers.

	b.  He injured his right knee in February 1990 while serving in Korea.  He was treated conservatively and he was given a brace.  The brace was lost during mobilization for to Southwest Asia.  He had been scheduled to receive anterior cruciate ligament reconstruction prior to this deployment, but the reconstruction surgery was postponed.

	c.  His final diagnosis was that of osteoarthritis of his right hand carpometacarpal joints, status post-fusion of radial carpal joint, and an anterior cruciate ligament deficient right knee with global instability.

	d.  His wrist and right knee rendered him unfit for military service under the provisions of chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).

5.  On 1 February 1991, an MEB convened at Darnell Army Community Center, Fort Hood, TX.  After consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant had the following medically unacceptable conditions:

* osteoarthritis of right hand carp-metacarpal joints, status post-fusion of radial carpal joint; did not exist prior to service; approximate date of origin 1983; and was permanently aggravated by service
* anterior cruciate ligament deficient knee with global instability, right knee; did not exist prior to service; approximate date of origin February 1991; and was permanently aggravated by service

6.  The MEB recommended the applicant be referred to a PEB.  The applicant agreed with the MEB's findings and recommendation and indicated he desired to continue on active duty.

7.  On 13 February 1991, he submitted a request for continuation on active duty; however, his request was disapproved due to the impairments that prevented reasonable performance of the duties required of his grade and military specialty.

8.  On 28 February 1991, an informal PEB convened at Fort Sam Houston, TX, and 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 item 8 (Disability Description, VA Code, Percentage) – he was granted the following:

* code 5214, 50 percent; ankylosis of right dominant wrist, with osteoarthritis of right hand carp-metacarpal joints, status post-fusion of radial carpal joint; incurred while entitled to basic pay; incurred or aggravated in the line of duty at a time of national emergency after 14 September 1978
* code 5257, 20 percent; anterior cruciate ligament deficient right knee with global instability; incurred while entitled to basic pay; incurred or aggravated in the line of duty at a time of national emergency after 14 September 1978

9.  The PEB recommended the applicant's permanent retirement by reason of disability at a combined rating of 60 percent.  The applicant concurred with the PEB's findings and recommendations and waived his right to formal hearing of his case.

10.  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 member'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
* 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 National Oceanic and Atmospheric Administration or the U.S. Public Health Service on 24 September 1975
* the disability did not result from a combat-related injury as defined in Title 26, U.S. Code, section 104

11.  On 18 March 1991, his PEB was approved by an official at the U.S. Army Physical Disability Agency on behalf of the Secretary of the Army.  Accordingly, on 23 April 1991, the applicant was honorably retired by reason of physical disability in accordance with paragraph 4-24b of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  Item 26 (Separation Code) of his DD Form 214 shows the entry "SFJ."

12.  He submits a copy of his VA Rating Decision, dated 27 August 1991, awarding him service-connected disability compensation for his right wrist and right knee at a combined rating of 60 percent.

13.  Army Regulation 635-40 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 office, grade, rank, or rating.

14.  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.

15.  Army Regulation 635-40 states the term "instrumentality of war" refers to a device primarily designed for military service and intended for use in such service at the time of the occurrence of the injury.  It may also be a device not designed primarily for military service if use of or occurrence involving such a device subjects the individual to a hazard peculiar to military service.  This use or occurrence differs from the use or occurrence under similar circumstances in civilian pursuits.

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; 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.

17.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The SPD code "SFJ" is the correct code for Soldiers retiring for permanent disability under paragraph 
4-24b(1) of Army Regulation 635-40.

18.  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.

19.  Title 38, U.S. Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

20.  There is a difference between the VA and the Army disability systems.  The Army's determination of a Soldier's physical fitness or unfitness is a factual finding based on the individual's ability to perform the duties of his or her grade, rank, or rating.  If the Soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature.  The Army system requires that the Soldier only be rated as the condition(s) exist(s) at the time of the PEB hearing.  The VA may find a Soldier unfit by reason of service-connected disability and may even initially assign a higher rating.  The VA's ratings are based upon an individual's ability to gain employment as a civilian and may fluctuate within a period of time depending on the changes in the disability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant sustained two injuries during his military service, a wrist injury in 1983 caused by a fall from a truck and a knee injury in 1991.  He underwent an MEB that referred him to a PEB.  The PEB determined he was physically unfit for further military service and recommended his permanent retirement.  He concurred with the PEB's findings and recommendations and, accordingly, he was retired.

2.  The applicant does not meet the criteria to have item 10 of his DA Form 199 corrected.  Item 10 of the DA Form 199 is a two-part requirement.  The member's retirement must be based on disability resulting 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.

3.  His conditions occurred in the line of duty but were not caused by combat or an instrumentality of war.  None of his conditions occurred in a combat zone or were incurred during the performance of duty in combat-related operations as designated by the Secretary of Defense.  He was retired as a result of a disability that did not occur in a combat zone which is correctly shown on his DD Form 214.  The fact that a condition occurred or was aggravated in the line of duty in time of war or national emergency is not sufficient to change item 10 of his DA Form 199.

4.  An instrumentality of war is a vehicle, vessel, or device designed primarily for military service and intended for use in such service at the time of the occurrence of the injury.  Most military vehicles, and presumably the types of vehicles the applicant rode in while performing his duties, are not designed primarily for military service.  The applicant's riding in the truck did not subject him to a hazard peculiar to military service.  The applicant would have been subjected to the same hazard under similar circumstances in civilian pursuits.  Although it is unfortunate that his wrist injury worsened over the years, there is insufficient evidence in his case to establish that any of his conditions were the resultant cause of an instrumentality of war as defined by the Secretary of Defense.

5.  The available evidence in this case indicates the applicant was properly evaluated for his medical conditions by the PEB and he was afforded all of his due process rights during the evaluation of his case.  It is also evident that more than one PEB considered his arguments regarding his medical diagnosis and the issue of whether it was caused by an instrumentality of war and that the applicant was given proper consideration.


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)                                         AR20110013542



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ABCMR Record of Proceedings (cont)                                         AR20110013542



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