IN THE CASE OF: 

		BOARD DATE:	    6 December 2012

		DOCKET NUMBER:  AR20120009738 


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 records to show he was medically retired due to a combat injury.  

2.  The applicant states the error misrepresents his reason for leaving the military and affects his ability to receive benefits he is entitled to receive.

3.  The applicant provides:

* Memorandum placing him on the temporary disability retired list (TDRL)
* Orders D233-39 placing him on the TDRL
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 1 December 1968.

2.  Having had prior enlisted service in the Army National Guard (ARNG) from 
20 October 2001 to 20 November 2002, the applicant was appointed as a Reserve commissioned officer of the New York ARNG (NYARNG) and executed an oath of office on 21 November 2002.

3.  He entered active duty on 9 September 2005 and subsequently served in Iraq from 8 November 2005 to 18 October 2006.  He was honorably released from active duty on 19 November 2006 by reason of completion of his required active service.

4.  His medical records are not available for review with this case.  However, it appears he was in a convoy that was hit by an improvised explosive device while deployed to Iraq.  Upon redeployment, he exhibited symptoms of anxiety, hyper vigilance, poor sleep, nightmares, flashbacks, irritability, and agitation.  

5.  The complete facts and circumstances surrounding his entry into the physical disability evaluation system, including the documents that are listed below, are not available for review with this case:

* DA Form 2173 (Statement of Medical History and Duty Status)
* Line of Duty determination
* Treatment records, narrative summary, and determination of fitness
* Medical Evaluation Board (MEB) proceedings

6.  However, it appears an MEB convened and found the applicant had certain medically unacceptable conditions after consideration of clinical records, laboratory findings, and physical examinations.  It also appears the MEB recommended the applicant's referral to a PEB and he agreed with the MEB's findings and recommendation.  

7.  On 29 July 2009, an informal PEB convened in Washington, DC 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 Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) and, as shown in items 8a, 8b, and 8g (Disability Description, VA Code, Percentage), he was granted the following:

* Code 9411 – post-traumatic stress disorder (PTSD), 50-percent
* Code 8045 - cognitive disorder, not otherwise specified, 40-percent

8.  The PEB recommended the applicant's placement on the TDRL by reason of temporary disability at a combined rating of 70 percent with reexamination during May 2010.  He concurred and waived his right to a formal hearing.

9.  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):

	a.  The Soldier's 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 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 (NOAA) or the U.S. Public Health Service (USPS) on 24 September 1975.

	c.  The disability did result from a combat-related injury as defined in Title 26, U.S. Code, section 104 and for purposes of Title 10. U.S. Code, section 10216(G).

10.  On 20 August 2009, his PEB was approved by an official at the U.S. Army Physical Disability Agency (USAPDA) on behalf of the Secretary of the Army.

11.  On 20 August 2009, the USAPDA published Orders D233-39 releasing him from active duty because of physical disability incurred as a result of injury while entitled to receive basic pay and placed him on the TDRL in his retired grade of captain, effective 24 September 2009, in accordance with Army Regulation 
635-40 (Physical Evaluation for Retention, Retirement, or Separation) by reason of temporary disability.  The orders stated:  

* Disability is 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: Yes
* Member of an armed force on 24 September 1975:  "No"
* Disability resulted from a combat related injury as defined in 26 USC 104 (Title 26, U.S. Code, section 104):  "Yes"

12.  Army Regulation 635-40 establishes the 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 or her office, grade, rank, or rating.  This regulation 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.
13.  Appendix D of Army Regulation 635-40 provides instructions for completion of the DA Form 199.

	a.  Item 9:  Select recommendations for disposition of the Soldier from the following statements:  "permanently retired from the service"; "placed on the TDRL with reexamination during (month and year)"; "separated from military service without entitlement to disability benefits from the service"; "separated from the service with severance pay if otherwise qualified"; "retained on the TDRL with reexamination during (month and year)"; "revert to retired status"; or "other (specify)."

	b.  Item 10a:  Make the entry according to the provisions of paragraph 4-19j.  Make the entry in all cases other than those on the TDRL, although the entry pertains only to Soldiers who will be retired.

	c.  Item 10b:  Make the entry in all cases even though item 10b addresses only Soldiers who will be retired.  Check "was" if, on 24 September 1975, the individual was a member of the Armed Force of any country or Reserve Component of the Armed Force, the NOAA, the USPHS, or under a binding written commitment to become such a member.

	d.  Item 10c:  Make the entry in all cases even though item 10c addresses only Soldiers who will be retired.  Refer to chapter 4 and the glossary to decide which block to check.

14.  Chapter 4 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 or her 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.

15.  Title 26 U.S. Code, section 104, states 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant sustained several illnesses and/or injuries that clearly occurred in combat while deployed in Iraq.  Upon redeployment, he exhibited symptoms of PTSD and cognitive disorder that led to his entry into the PDES.  He underwent an MEB that referred him to a PEB.  The PEB determined he was physically unfit for further military service and recommended placing him on the TDRL.  He was counseled and concurred with the PEB's findings and recommendations and, accordingly, he was retired.

2.  Both the applicant's PEB and retirement orders indicated his injuries were combat-related.  Item 10a of the DA Form 199 is a two-part requirement.  First, the applicant entered military service on 20 October 2001.  Therefore, he was not a member of the Armed Forces on 24 September 1975.  Second, the applicant's injuries were caused by combat conditions.  This is clearly reflected on the DA Form 199.  

3.  There is no error or injustice in this case.  His disability resulted from an 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.  This disposition is correctly reflected.  

4.  In view of the circumstances in this case, there is no reason to make any changes to his medical discharge.

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)                                         AR20120009738



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ABCMR Record of Proceedings (cont)                                         AR20120009738



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