IN THE CASE OF:	  

		BOARD DATE:  10 July 2012

		DOCKET NUMBER:  AR20120000695 


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 that his records be corrected to show he was retired as a result of a disability that was an "instrumentality of war" and exposure to Agent Orange.

2.  The applicant states errors in his medical documentation at the time of his retirement were supposed to have been corrected to show that his disability retirement was the result of an instrumentality of war, specifically Agent Orange.  When he was granted his recent Department of Veterans Affairs (VA) rating he was told he needed to contact the Army to correct his records to show his condition was the result of an instrumentality of war.

3.  The applicant provides a 1987 letter from a member of his Physical Evaluation Board (PEB) , a 1981 DA Form 3947 (Medical Evaluation Board (MEB) Proceedings), a 1982 DA Form 199 (Physical Evaluation Board Proceedings), a 1982 Inpatient Treatment Record, a 1982 retirement letter, and a 2011 VA Rating Decision.

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.  The applicant's service medical records are believed to be on permanent loan to the VA and are not available for review.

3.  The applicant, a retired U.S. Army Reserve (USAR) major, served on active duty for over 20 years.  He entered continuous active duty in 1967 with 5 previous years each of both active and inactive duty. 

4.  On 17 December 1981, an MEB evaluated him for post-surgical chronic lumbar radiculopathy, chronic lumbosacral strain, post-surgical scarring of the lumbar spine, and obesity.  It was determined that he was medically unfit for further military service due to his back condition and he was referred to a PEB.  

5.  On 11 January 1982, a PEB determined the applicant was physically unfit due to residuals of intervertebral disc syndrome with chronic lumbosacral strain at a 20 percent disability level.  His post-surgical scarring of the lumbar spine, and obesity were considered non-ratable conditions.  The PEB indicated the applicant's back condition was considered to have been incurred in the line of duty (LOD) in a time of war or national emergency.

6.  The applicant was retired due to physical disability, with over 20 years of active duty and a 20 percent disability rating, effective 9 March 1982.

7.  In a 1987 letter, from a member of the PEB, noted the dates of the origin of the applicant's back conditions were incorrectly entered on the PEB document.

8.  On 12 April 1988, the ABCMR corrected the applicant's records to show his sole unfitting condition, the residuals of intervertebral disc syndrome, was a direct result of armed conflict and/or caused by an instrumentality of war.

9.  The VA rating decision shows:

	a.  the applicant was diagnosed with prostate cancer in February 2003;

	b.  the applicant requested service connection for prostate cancer in 2008;

	c.  he was initially denied service connection for this condition due to his failure to provide requested medical information;
	d.  he reopened his VA claim in 2011 and was granted service connection for prostate cancer as a presumptive condition of Agent Orange exposure with a 40 percent disability evaluation for prostate cancer and special monthly compensation for loss of use of a creative organ; and

	e.  this rating decision does not address the applicant's back condition.

10.  An advisory opinion was obtained from the U.S. Army Physical Disability Agency.  The advisory opinion noted that the ABCMR corrected the applicant's records in 1988 to show his back condition was the result of instrumentality of war.  It stated his recent diagnosis of prostate cancer did not affect the earlier documents or decisions.  They found no material errors in the applicant's records and recommended no changes.

11.  A copy of the advisory opinion was forwarded to the applicant.  The applicant did not respond to the opinion.

12.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

13.  The U.S. Army Human Resources Command Website provides the following definition for the term instrumentality of war.  

"Instrumentality of War (combat vehicles, weapons, Agent Orange, etc.)  Incurrence during actual period of war is not required.  However, there must be a direct causal relationship between instrumentality of war and disability.  The disability must be incurred incident to a hazard or risk of the service.  
An instrumentality of war is a vehicle, vessel, or device designated primarily for Military Service and intended for use in such Service at the time of the occurrence or injury.  It may include such instrumentalities not designated primarily for Military Service if use of, or occurrence involving, such instrumentality subjects the individual to a hazard peculiar to Military Service.  Such use or occurrence differs from the use or occurrence under similar circumstances in civilian pursuits.

A determination that a disability is the result of an instrumentality of war may be made if the disability was incurred in any period of service as a result of such diverse causes as wounds caused by a military weapon, accidents involving military combat vehicle, injury or sickness caused by fumes, gases, or explosion or military ordinance, vehicles, or material."
14.  The VA Public Heath website related to Agent Orange states that the VA assumes that certain diseases can be related to a Veteran’s qualifying military service, referring to these diseases as "presumptive diseases."  The VA has recognized certain cancers, including prostate cancer, and other health problems as presumptive diseases associated with exposure to Agent Orange or other herbicides during military service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant retired on 9 March 1982 solely due to a back condition.  In 1988 the ABCMR corrected his record to show this condition was the direct result of armed conflict and/or caused by an instrumentality of war.  

2.  The applicant was not diagnosed with prostate cancer until February 2003, 21 years after he was medically retired for his back problems.  The applicant has not provided and the record does not contain any evidence that he was suffering from any medical condition as the result of exposure to Agent Orange at the time of his retirement.  As such the diagnosis of prostate cancer or exposure to Agent Orange would not and should not be included on either the MEB or PEB documentations. 

3.  The applicant has now developed prostate cancer, which the VA lists as a presumptive disease of Agent Orange exposure which is in turn considered an instrumentality of war.  

4.  While the applicant's prostate cancer is now accepted by the VA as having been caused by an instrumentality of war, this does not warrant a correction of the applicant's MEB or PEB documents.

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)                                         AR20120000695



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ABCMR Record of Proceedings (cont)                                         AR20120000695



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