IN THE CASE OF:	

		BOARD DATE:  27 November 2012

		DOCKET NUMBER:  AR20120007259 


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 her Temporary Disability Retired List (TDRL) orders to show her retirement was 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.

2.  The applicant states the entry on her TDRL orders is not correct.  She states:

	a.   she fell off a Patriot Missile Launcher while in Saudi Arabia in 1998.  She has suffered several years from chronic migraines, vertigo, temporomandibular joint (TMJ) disorder, and mild paralysis.  In May 2004, she was medically evacuated from Kuwait and in August 2005, she was medically retired due to these conditions.  All her symptoms and severe medical problems were and still are related to her fall in 1998.  She was not able to work for a year after her retirement due to the effects of a mild paralysis and traumatic brain injury (TBI) related to her fall.  She has several individuals who are willing to submit a statement of support.  

	b.  a DA Form 199 (Physical Evaluation Board (PEB) Proceedings) shows she has a head injury.  The Department of Veterans Affairs (VA) rating includes migraines from a head injury.  The VA rating also shows treatment for migraines, vertigo, and TMJ were directly associated with her fall and other TBI symptoms since 1999.

	c.  her medical records show that prior to her deployment to Saudi Arabia, she had no history of migraines or paralysis.  Her records show upon her return from that deployment, she started suffering from chronic vertigo, short-term memory loss, and numbing and tingling of extremities.  She passed out while stationed at Fort Sill, Oklahoma.  She learned in August 2008 that these symptoms extend to people such as her who had suffered injuries while deployed to a combat zone.  She has been undergoing medical treatment and is getting better.

3.  The applicant provides her DD Form 214 (Certificate of Discharge or Release from Active Duty), Combat Related Special Compensation (CRSC) decision letter, TDRL orders, VA rating decision, and DA Form 199.

CONSIDERATION OF EVIDENCE:

1.  Following prior enlisted service and graduation from Senior Reserve Officers’ Training Corps, the applicant was commissioned in the Regular Army as a second lieutenant Air Defense Artillery officer on 21 June 1996 and entered active duty.  She was promoted to captain (CPT) on 1 May 2000.

2.  Orders 213-0103, Headquarters, U.S. Army Medical Department Center and School, Fort Sam Houston, TX, dated 1 August 2005, show the applicant was rated at 30 percent (%) disabled and placed on the TDRL effective 25 August 2005.  The order also shows "Armed Conflict or caused by an instrumentality of war and incurred in the LOD during a war period as defined by law:  No."

3.  Her DD Form 214 shows she was retired due to temporary disability on 
24 August 2005, as a CPT.  

4.  There is no available record of a medical evaluation board (MEB) or a PEB prior to her placement on the TDRL.

5.  Her medical records are not available for review.

6.  A DA Form 199 shows a PEB convened on 5 June 2007 to consider the applicant's medical condition.  

	a. The Disability Description section shows: 

		(1)  VA Code 5025 "FIBROMYALGIA, 18/18 TENDER POINTS POSITIVE, PAIN CONSTANT, REFRACTORY TO THERAPY.  (TDRL RHEUMATOLOGY EVAL)."  The recommended disability percentage is 40%.
		(2)  VA CODES 8045 and 9304 "CHRONIC HEADACHES, STATUS POST HEAD INJURY 1999.  RATED IAW (in accordance with) VASRD [Veterans Affairs Schedule of Rating Disabilities] CODE 8045, para 4.124 a-3.  (TDRL NEUROLOGY EVAL)."  The recommended disability percentage is 10%. 
   
   b.  The PEB found the applicant to be physically unfit, recommended a combined rating of 50% and that the Soldier's disposition be "Permanent disability retirement."

   c.  The applicant concurred with the proceedings and waived a formal hearing of her case.

7.  Orders D018-09, U.S. Army Physical Disability Agency, dated 28 June 2007, removed the applicant from the TDRL and permanently retired her as a CPT.  The orders also contain the statements:

   a.  "Percentage of Disability:  50." 

   b.  "Disability is based on injury or disease received in the line of duty (LOD) 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:  Not Applicable."

8.  The applicant provides the following documents:

   a.  CRSC decision letter showing:
   
   	(1)  the following conditions were verified as Combat Related and she was awarded CRSC for:
   
* VASRD Code 9905 - Limited Motion of the Jaw and Face 30%
* VASRD Code 5237 - Lumbosacral or Cervical Strain C Spine (Neck) 10%
* VASRD Code 8100 - Migraine Headaches 50% 
   
   	(2)  the following conditions were shown as "unable to verify as Combat Related":
   
* VASRD Code 5025 - Fibromyalgia Muscles
* VASRD Code 6204 - Labyrinthitis
* VASRD Code 9411 - Post Traumatic Stress Disorder

	b.  VA Rating Decision, dated 12 December 2007, shows nineteen issues were determined as service connected and two issues were determined as not service connected. 

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) sets forth policies, responsibilities, and procedures in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.

   a.  Chapter 4 (Procedures), paragraph 4-19 (PEB decisions - common criteria), subparagraph a (Determinations), provides that the voting members of a PEB make findings and recommendations in each case on the basis of the instructions set forth in paragraphs b through q.  The board decides all questions by majority vote.  All findings must be based on a preponderance of the evidence.  Recommendations must be supported by the findings.

   b.  Subparagraph j (Armed conflict - instrumentality of war) explains that certain advantages accrue to Soldiers who are retired for physical disability and later return to work for the Federal Government when it is determined that the disability for which retired was incurred under specific circumstances.  These advantages concern preference eligible status within the Civil Service system (Title 5, U.S. Code, section 3501).  It also provides:
   
   	(1)  The disability resulted from injury or disease received in 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. 

   		(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 line of duty during a period of war as defined by law. 
10.  Army Regulation 15-185 (Army Board for Correction of Military Records) sets forth the policy and procedures for the ABCMR.  Paragraph 2-9 provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her TDRL retirement orders should be corrected to show her retirement was 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.

2.  Incurring disabilities while in a theater of operations or in training exercises is not, in and of itself, sufficient to determine the injury was combat-related.  The military retiree must show the disability was incurred while engaged in combat, while performing duties simulating combat conditions, or while performing especially hazardous duties such as parachuting or scuba diving.  The applicant stated she fell off a Patriot Missile Launcher while in Saudi Arabia in 1998, indicating it was an accident that did not meet any of the qualifying criteria.  

3.  The regulations governing the Board's operation require that the information on the applicant's TDRL orders must be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption.

4.  In view of the foregoing, it is concluded that the statement on her TDRL orders is correct in both law and regulation.  Therefore, the applicant is not entitled to correction of her records in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL SHEARING

____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)                                         AR20120007259



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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