IN THE CASE OF:	  

		BOARD DATE:	  22 February 2012

		DOCKET NUMBER:  AR20110015742


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 his DD Form 214 (Certificate of Release or Discharge from Active Duty) reflect a Separation (SPD) Code of JFI or JEA to link his disabilities as combat-related.

2.  The applicant states he was involved in four improvised explosive device (IED) explosions resulting in traumatic brain injury (TBI).  His ankle was injured in a mortar attack.  He has service-connection by the VA (Department of Veterans Affairs) for post-traumatic stress disorder (PTSD) tinnitus, right ankle injury, and post-concussive syndrome.  He has a Combat Action Badge.

3.  The applicant provides his VA compensation documentation.

CONSIDERATION OF EVIDENCE:

1.  With prior active and inactive service, the applicant enlisted in the Regular Army on 20 April 2006.  He served in military occupational specialty (MOS) 92F (Petroleum Supply Specialist).  He was honorably discharged on 18 June 2010 under the provisions of Army Regulation 635-40, chapter 4, by reason of disability with severance pay in the amount of $31,006.80.  His disability was determined to be non-combat related.



2.  The applicant's Interactive Personnel Electronic Records Management System (iPERMS) records contain a DA Form 199 (Physical Evaluation Board (PEB) Proceedings) dated 28 March 2010.  It shows:

	a.  He was rated 10% disabled for chronic right ankle pain "…analogous to arthritis, degenerative, IAW [in accordance with] para[graph] 4.20 of the VASRD (Veterans Administration Schedule for Rating Disabilities).

	b.  The ankle condition was not a battle injury and did not occur in a combat theater.  The [applicant] has had multiple sprain type injuries and has had surgical ligament repairs twice.

	c.  There were 12 other unspecified conditions [conditions 2-13] listed on the applicant's MEB (Medical Evaluation Board); however, none were considered to be unfitting.

	d.  The PEB determination 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 occurring during a period of war.  The disability did not result from a combat-related injury, nor was it incurred during duty performance in a combat-zone.

3.  On 29 March 2010, the applicant concurred with the PEB and did not request a formal hearing.

4.  The applicant submitted a VA disability claim showing the VA rated him 60% disabled service-connected, Gulf War-incurred for:

* PTSD at 30%
* Right Ankle at 20%
* Tinnitus at 10%
* Post Concussive Syndrome, Status Post Mild TBI at 10%
* Tension headaches at 0%

5.  The Army compensates Soldiers for physical disabilities through the Physical Disability Evaluation System (PDES).  When a Soldier becomes injured or ill while on duty, the Army's first priority is to provide medical treatment and rehabilitation services that will enable that Soldier to return to active duty as quickly as possible.  When a Soldier is not able to return to full active duty within a reasonable period of time, the treating physician will generally initiate the process of determining whether or not the Soldier is fit for active military duty by referring him/her for assessment under the PDES.

6.  The PDES is designed to provide a uniform procedure for the evaluation of a Soldier's medical condition and his/her ability to continue serving in the Army.  The evaluation process involves two distinct stages:  the MEB and the PEB.  The purpose of the MEB is to determine whether the Soldier's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the individual’s branch of service.  A PEB is an administrative body possessing the authority to determine whether or not a Soldier is fit for duty.  A designation of “unfit for duty” is required before a Soldier can be separated from the military because of an injury or medical condition.  Soldiers who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service.  Soldiers who are “separated” receive a one-time severance payment, while those who retire based upon disability receive monthly military retirement payments and have access to all other benefits afforded to military retirees.

7.  The PEB is also responsible for determining the “disability rating” (the percentage of disability for ill or injured Soldiers).  Soldiers may be determined to be disabled anywhere along a continuum ranging from 0% to 100% disabled in 10% increments, based on the VASRD, as supplemented by Army regulations, to assign a percentage of disability.

8.  Department of Defense Instruction (DODI) 1332.38 states a physical disability shall be considered combat-related if it makes the member unfit or contributes to unfitness and was incurred 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; rappelling; 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows no basis for correcting the applicant's DD Form 214 to show his disability is the result of a combat-related injury.

2.  DODI 1332.38 provides examples of the types of military training under conditions simulating war that may result in a combat-related disability.  The examples are generally activities that involve risks unique to military training.  

	a.  Simply being injured while performing military duty does not result in the injury being classified as combat-related.  In 1975 Congress indicated that all military disability payments were to be fully taxable just like any other income.  Exceptions to the taxation rule were required to be based on clear evidence the injury was combat-related, that is attributable to some special dangers of military training.  For example, hurting one's back while lifting objects that any camper and/or Boy Scout might encounter on a camping trip is not a "special danger" that can be attributed to armed conflict.  Based upon the evidence in the case file, the PEB was within its discretion to properly rule that the applicant's ankle injuries were not combat-related in accordance with the Congressional intent that disability compensation normally be taxable and only exempted when meeting clearly established exceptions.

	b.  The applicant does not provide sufficient evidence to overcome the PEB's findings that his unfitting ankle condition was not the proximate result of a combat-related incident as defined by DODI 1332.38.

3.  There are sharp differences in disability ratings performed by the Army and the VA.  The Army will only consider the physical conditions that make a Soldier unfit for continued service, while the VA is required to consider all service-connected disabilities and the totality of the changes in the Soldier's medical condition that occurred during military service.  Furthermore, the Army disability rating assigned to a Soldier is permanent and not subject to reevaluation.  The VA process permits reevaluation of service-connected disabilities if a condition worsens or improves over time, or if there is a change in the law governing the assignment of disability ratings.  Veterans who receive both military (Army) and VA benefits could have two completely different disability ratings governing the two types of benefits.

4.  The applicant injured his ankle as a result of multiple sprain incidents which ultimately required surgical ligament repairs.  Although his initial injury occurred during military service, it was in no way unique to combat or combat-related training.  This being the case, his disability, while compensable by the VA, does not meet the standard established for classification as a combat-related disability.  Therefore, he is not entitled to the relief he has requested.

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)                                         AR20110015742





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ABCMR Record of Proceedings (cont)                                         AR20110015742



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