IN THE CASE OF:	  

		BOARD DATE:	  8 March 2012

		DOCKET NUMBER:  AR20110016968 


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, in effect, correction of his DA Form 199 (Physical Evaluation Board (PEB) Proceedings) to show his retirement is based on a 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.

2.  He states:

	a.  the Standard Forms (SF) 600 (Chronological Record of Medical Care), dated 19 February and 29 April 2008, were submitted along with all of his medical records to the Army medical board on 5 May 2011;

	b.  when the findings were returned, it did not recognize his injury from a combat zone;

	c.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) stated he had 10 days from 7 June 2011 to concur or non-concur and submit a rebuttal;

	d.  he knew his medical records would not be back within that time and he would not be able to produce the necessary documents without his records, so he concurred; and 


	e.  3 weeks later his record returned and they were missing several medical documents including the ones being submitted for consideration in this case.

3.  The applicant provides:

* His DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 13 September 2011
* A DA Form 3947 (Medical Evaluation Board (MEB) Proceedings), dated 11 April 2011
* a 4-page summary from the MEB, dated 11 April 2011
* DA Form 199, dated 25 May 2011
* two SFs 600, dated 19 February and 29 April 2008
* A Physical Disability Information Report, dated 15 June 2011
* Orders 166-1322, issued by Headquarters, U.S. Army Training Center, Fort Jackson, SC, dated 15 June 2011

CONSIDERATION OF EVIDENCE:

1.  Having had prior Regular Army (RA) enlisted service, the applicant again enlisted in the RA on 21 August 2003.  He held military occupational specialties (MOS) 63B (Wheeled Vehicle Mechanic) and 14R (Bradley Linebacker Crewmember).  He attained the rank/grade of staff sergeant (SSG)/E-6.

2.  Records show he served in Iraq from 3 March 2005 to 19 February 2006 and from 2 December 2007 to 11 February 2009.

3.  He submitted:

	a.  an SF 600, dated 19 February 2008, that shows:

		(1)  he sustained left hip, lower side, and thigh pain when he was hit by a High Mobility Multipurpose Wheeled Vehicle (HMMWV) during a physical fitness test;

		(2)  he was treated for a contusion with intact skin surface – hip; and

		(3)  his injury was determined to not be battle-related.

	b.  an SF 600, dated 29 April 2008, that shows:

		(1)  he developed left flank pain and a headache when his vehicle was hit by an improvised explosive device;

		(2)  he was treated for post-concussion headache and released; and

		(3)  his injury was determined to be battle-related.

	c.  a DA 3947, dated 11 April 2011, that shows an MEB convened and considered his medical condition under the provisions of Army Regulation 40-501 (Standards of Medical Fitness).  The MEB proceedings determined his:

		(1)  chronic lower back pain due to multilevel degenerative disc disease and lumbar laminectomy syndrome was medically unacceptable in accordance with Army Regulation 40-501, paragraph 3-39h; and

		(2)  chronic right leg pain and weakness due to L5 and S1 radiculopathy was medically unacceptable in accordance with Army Regulation 40-501, paragraph 3-30j.

4.  The MEB also determined his conditions of umbilical hernia, anxiety disorder, insomnia due to lower back pain, post-traumatic headaches, and obstructive voiding due to detrusor atony, post-void residual were considered medically acceptable.

5.  The MEB recommended the applicant be referred to a PEB.  On 3 May 2011, the findings and recommendation of the MEB were approved.  On 4 May 2011, the applicant was informed and agreed with the approved findings and recommendation of the MEB.

6.  On 25 May 2011, an informal PEB convened and:

	a.  considered his disabilities of degenerative arthritis of the lumbar spine and right lower extremity radiculopathy;

	b.  determined his other medical conditions, umbilical hernia, anxiety disorder, insomnia due to lower back pain, post traumatic headaches, and obstructive voiding due to detrusor atony, post-void residual were not unfitting and non-disqualifying; therefore, they were not ratable;

	c.  reviewed all available medical records and determined his medical conditions prevented performance of duty in his grade and specialty; and

	d.  found him physically unfit and recommended a combined rating of
40 percent (%) and permanent disability retirement.


7.  The narrative summary indicated he was struck by an HMMWV while taking a physical fitness test in Iraq (instrumentality of war); however, there was no documentation in his medical record to support this incident.  Therefore, it was determined his:

	a.  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, and

	b.  disability did not result from a combat-related injury as defined in Title 26, U.S. Code, section 104 and for purposes of Title 10, 10 U.S. Code,
section 10216.

8.  On 13 May 2004, he concurred with the findings and recommendation of the PEB and waived a formal hearing of his case.

9.  He submitted a physical disability information report, dated 15 June 2011, that states his:

	a.  disability is not based on 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.  disability did not result from a combat-related injury as defined in Title 26, U.S. Code, section 104; and

	c.  disability was not incurred in a combat zone or incurred during the performance of duty in combat-related operations as designated by the Secretary of Defense (National Defense Authorization Act (NDAA) 2008, section 1646).

10.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System 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/her office, grade, rank, or rating.

11.  Army Regulation 635-40 states:

	a.  a disability may be considered to be 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.

	b.  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.

	c.  in paragraph 4-19j 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:

		(1)  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:

		(a)  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

		(b)  a direct causal relationship exists between the armed conflict or the incident or operation and the disability.

		(2)  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.

12.  Title 26, U.S. Code, section 104, states 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 evidence shows the applicant has a history of suffering chronic lower back pain due to multilevel degenerative disc disease and lumbar laminectomy syndrome and chronic right leg pain and weakness due to L5 and S1 radiculopathy.  However, his record is void of any evidence and he has not provided any evidence showing he sustained these injuries as a result of participating in combat.

2.  The evidence of record shows his back and leg pain occurred subsequent to his deployments to Iraq in 2005 and 2007.  Evidence of record further shows these injuries were aggravated while serving in Iraq in 2008 after being hit by a HMMWV while taking a physical fitness test.

3.  The evidence of record also shows following redeployment, he continued to have lower back pain with radiating pain to the right leg and it was determined he had a herniated lumbar disk and he had a L4-L5 posterior transforaminal lumbar interbody fusion performed which left him unimproved.

4.  On 25 May 2011, the PEB found him unfit for chronic lower back pain due to multilevel degenerative disc disease and lumbar laminectomy syndrome and chronic right leg pain and weakness due to L5 and S1 radiculopathy.  The PEB reviewed all the available and appropriate evidence.  There were no other unfitting conditions found.  The PEB recommended permanent disability retirement with a 40% disability rating.  He agreed with the PEB's findings and recommendation.

5.  The applicant does not meet the criteria to have his PEB results modified to show he sustained an injury or medical condition as the result of combat.  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.

6.  His condition manifested in the line of duty, but was not caused by combat or an instrumentality of war.  There is no evidence that shows his disabling condition was a direct result of armed conflict or was incurred during the performance of duty in combat-related operations as designated by the Secretary of Defense.  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 the findings of the PEB.

7.  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.

8.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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)                                         AR20110016968



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ABCMR Record of Proceedings (cont)                                         AR20110016968



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