BOARD DATE:	  7 May 2013

		DOCKET NUMBER:  AR20120015772


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 retirement orders to show his disability was 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 incurred in the LOD during a war period as defined by law.

2.  The applicant states he would like his retirement orders corrected since his injuries occurred in the LOD and his records document this.

3.  The applicant provides:

* Orders M-017-0227 issued by the 671st Engineer Company (Multi-Role Bridge), Portland, OR, dated 17 January 2003
* Air Force Form 3899 (Aeromedical Evacuation Patient Record), dated 3 September 2003
* DA Form 2173 (Statement of Medical Examination and Duty Status), dated 23 September 2003
* DA Form 2173, dated 11 February 2004
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* memorandum from Western Region Medical Command and Madigan Army Medical Center, Tacoma, WA, dated 17 April 2006
* memorandum from Western Region Medical Command and Madigan Army Medical Center, Tacoma, WA, dated 28 April 2006
* Automated Optional Form 275-E (Medical Record Report), Medical Evaluation Board (MEB) Consultation, dictated 24 May 2006
* DA Form 2173, dated 30 May 2008
* memorandum from Headquarters, 88th Regional Readiness Command, Fort Snelling, MN, dated 30 May 2008
* Automated Optional Form 275-E, MEB Narrative Summary (NARSUM), dated 2 September 2009
* DA Form 3947 (MEB Proceedings), dated 9 November 2009
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 22 December 2009
* Orders D012-38 issued by the U.S. Army Physical Disability Agency, Washington, DC, dated 12 January 2010

CONSIDERATION OF EVIDENCE:

1.  On 8 September 1987, the applicant enlisted in the Regular Army.  He completed his initial entry training and was awarded military occupational specialty (MOS) 31M (Multi-Channel Communications Systems Operator).

2.  On 7 September 1991, he was honorably released from active duty in the rank/grade of specialist (SPC)/E-4 and was transferred to the U.S. Army Reserve (USAR) where he served until he was discharged on 9 September 1995.

3.  On 5 June 2001, he again enlisted in the USAR in the rank/grade of private first class/E-3.  Almost immediately after enlisting he was advanced to the rank/grade of SPC/E-4.  On 19 October 2001 upon the completion of formal training, he was awarded MOS 12B (Combat Engineer).

4.  On 10 October 2002, he was promoted to the rank/grade of sergeant (SGT)/E-5.

5.  Orders 03-017-00129 issued by Headquarters, 70th Regional Support Command, Seattle, WA, dated 17 January 2003, assigned him to Detachment 2, 671st Engineer Company, Portland, OR, effective 17 January 2003.

6.  On 18 January 2003, he completed formal training and was awarded MOS 12C (Bridge Crewmember).

7.  On 23 January 2003, he was mobilized and entered active duty in support of Operations Enduring Freedom and Iraqi Freedom.  After duty at Fort Lewis, WA, and Fort Leonard Wood, MO, he deployed to Kuwait and Iraq.

8.  On 2 September 2003 while serving in Iraq, he reported to the 28th Combat Support Hospital with complaints of shoulder pain and blurred vision in his right eye.  On 3 September 2003, he was medically evacuated to Baghdad International Airport and he was further medically evacuated to Landstuhl Regional Medical Center in Ramstein, Germany, on 4 September 2003.

9.  On 19 September 2003, a physician assistant at Madigan Army Medical Center signed his DA Form 2173 indicating his shoulder injury occurred in April 2003 and resulted from lifting heavy equipment during combat operations in Iraq.

10.  On 23 September 2003, a medical doctor at Madigan Army Medical Center signed his DA Form 2173 indicating the decreased vision in his right eye was incurred in the LOD.  No other information regarding the origin of this injury is provided.

11.  On 5 April 2004, he was honorably released from active duty.

12.  On 17 April 2006, his decreased vision in his right eye was determined to have occurred in the LOD.  On 28 April 2006, his right shoulder injury was determined to have occurred in the LOD.

13.  On 24 May 2006, he underwent an MEB consultation at Madigan Army Medical Center related to his history of central serous chorioretinopathy (CSC) (a collection of fluid under the retina that results in visual distortion) in both eyes.  The examining physician stated the applicant met the retention standards of Army Regulation 40-501 (Standards of Medical Fitness) and recommended follow up in 1 year for a routine eye examination.

14.  On 28 May 2008, a DA Form 2173 was completed to determine the LOD status of the applicant's post-traumatic stress disorder (PTSD).  On 30 May 2008, his PTSD was determined to have occurred in the LOD.

15.  On 2 September 2009, he underwent an MEB at Madigan Army Medical Center.  His MEB NARSUM shows he was evaluated for right shoulder pain and right eye CSC.  The MEB found he did not meet the retention standards of Army Regulation 40-501 and referred him to a PEB for further adjudication.  His DA Form 3947 shows he agreed with the MEB's findings and recommendation.

16.  On 22 December 2009, an informal PEB convened and found his condition prevented him from performing the duties required of his grade and specialty and determined that he was physically unfit due to bilateral chronic CSC and chronic right shoulder pain.


	a.  His DA Form 199 notes:

* the PEB recommended his permanent retirement with a combined disability rating of 40 percent
* the PEB further determined his retirement was not based on disability from injury or disease received in the LOD as a direct result of armed conflict or caused by an instrumentality of war and incurring in the LOD during a period of war as defined by law
* the disability did not result from a combat-related injury as defined in Title 26, U.S. Code, section 104

	b.  The applicant noted his concurrence with the PEB findings and recommendation and waived his right to consideration of his case before a formal hearing.

17.  Orders D012-38 issued by the U.S. Army Physical Disability Agency, Washington, DC, dated 12 January 2010, ordered his retirement and placement on the Retired List in the rank/grade of SGT/E-5 with a 40-percent disability.

18.  His record is void of any documentation that specifically addresses the origin of his injuries to his right shoulder and right eye.

19.  On 24 September 2012 in the processing of this case, a legal opinion was obtained from the Agency Legal Advisor of the U.S. Army Physical Disability Agency.  The advisory official noted:

* the applicant requested correction of his retirement orders to show his injuries occurred in the LOD
* the applicant's retirement orders indicate his injuries did not occur in the LOD as a direct result of armed conflict
* the applicant's DA Form 199 clearly indicates his injuries occurred in the LOD
* the advisory official indicated there are no errors in the applicant's military retirement orders – therefore, no corrections are necessary or authorized

20.  On 24 September 2012, the applicant was furnished a copy of the advisory opinion for review and the opportunity for rebuttal.

21.  On 1 October 2012, the applicant responded to the advisory opinion, wherein he noted:

* the advisory official misinterpreted the regulatory requirement to place the statement in contention on his retirement orders – it did not require a negative response
* he provided LOD forms for his injuries to his right shoulder and right eye, and his PTSD
* all three LOD determinations were made during Operation Iraqi Freedom in a combat zone during combat operations
* his right shoulder injury occurred during a nighttime river assault across the Euphrates River during the initial invasion of Iraq
* his right eye injury occurred during river operations in support of infantry squads on the Tigris River in Baghdad
* he was diagnosed with PTSD because of what happened to him and his Soldiers during combat operations, including being ambushed and assaulted with improvised explosive devices
* he is astonished that a determination from any government office in regard to his request would result in anything other than "concur"

22.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (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 office, grade, rank, or rating.  

23.  Army Regulation 635-40 states 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 LOD during a period of war.  A determination that a disability was caused by an instrumentality of war and incurred in the LOD 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant deployed to Iraq in support of Operation Iraqi Freedom.  While in Iraq, he suffered injuries to his right shoulder and right eye.  Eventually he was medically evacuated to the United States and his injuries resulted in his referral into the PDES.

2.  The applicant's medical issues were considered by an MEB and PEB.  The MEB considered only his shoulder and eye injury – not his PTSD.  The PEB considered his further retention based only on the issues addressed by the MEB and determined he was unfit for further service.  The PEB directed his permanent retirement with 40-percent disability and he indicated his concurrence with the PEB's findings and recommendation.

3.  His retirement orders were produced in accordance with the PEB findings and recommendation, including the statement in contention that his disability was not based on injury or disease received in the LOD as a direct result of armed conflict.  He now contends his retirement orders are in error and should state his disability was based on injury or disease received in the LOD as a direct result of armed conflict.

4.  His record is void of any documentation that specifically addresses the origin of his injuries to his right shoulder and right eye.  The PEB determined that item 10a of his DA Form 199 should state his retirement was not based on disability from injury or disease received in the LOD as a direct result of armed conflict or caused by an instrumentality of war and incurred in the LOD during a period of war as defined by law.  Based on the lack of documentation showing how he incurred his injuries there is no evidence the PEB's determination was in error.

5.  The applicant's physical disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the recommendation of the PEB.  There is no error or injustice in this case.  Therefore, there is no basis to grant the 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)                                         AR20120015721



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ABCMR Record of Proceedings (cont)                                         AR20120015772



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