BOARD DATE: 23 May 2013
DOCKET NUMBER: AR20120015994
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 resulted from combat operations in Iraq.
2. The applicant states:
a. Orders 313-0258 state, "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: No" and "Disability resulted from a combat related injury as defined in 26 USC 104 [Title 26, U.S. Code, section 104]: No."
b. These entries should read "Yes" because his injury occurred in August 2003 in Iraq during a convoy which was under ambush attack which caused the accident. He had a line-of-duty (LOD) document sent along with other paperwork when he was medically evacuated to Germany and then to Walter Reed Army Medical Center.
3. The applicant provides:
* retirement orders
* Physical Disability Board of Review (PDBR) Record of Proceedings
* memorandum for award of the Global War on Terrorism Service Medal
* orders for award of the Combat Action Badge
CONSIDERATION OF EVIDENCE:
1. After having had prior service in the Regular Army, the applicant was ordered to active duty from the U.S. Army Reserve (USAR) on 3 February 2003 in support of Operation Enduring Freedom. He served in Romania from 7 March 2003 to 17 March 2003 and he served in Iraq/Kuwait from 18 March 2003 to 13 December 2003. He was awarded the Combat Action Badge for action on 1 April 2003. On 7 May 2004, he was honorably released from active duty.
2. His medical evaluation board and physical evaluation board proceedings are not available. On 21 May 2013, the U.S. Army Physical Disability Agency confirmed they could not locate an LOD document in his case file.
3. On 10 December 2004, he was honorably discharged from the USAR by reason of physical disability with severance pay (20 percent).
4. The PDBR convened on 1 October 2010 to review the applicant's disability rating. The record of proceedings states:
* the basis for the applicant's separation was chronic neck and lower back pain
* he had onset of traumatic neck and low back pain beginning in August 2003 following a motor vehicle accident in Iraq during which his head struck the windshield
5. The PDBR recommended his separation be recharacterized to reflect permanent disability retirement with the combined disability rating changed from 20 percent to 50 percent.
6. On 21 October 2010, the recommendation of the PDBR was approved. His unfitting conditions were modified to show:
* chronic neck pain (20 percent)
* chronic low back pain (40 percent)
7. The applicant provided Orders 313-0258, Headquarters, U.S. Army Garrison, Fort Bragg, NC, dated 9 November 2010, (and which were revoked on 7 December 2010) which state:
a. "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: No."
b. "Disability resulted from a combat related injury as defined in 26 USC 104: No."
8. Orders D340-07, U.S. Army Physical Disability Agency, dated 6 December 2010, placed the applicant on the retired list on 10 December 2004 and state:
a. "Disability is based on injury or disease received in 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: No."
b. "Disability resulted from a combat related injury as defined in 26 USC 104: No."
9. 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 under conditions simulating war, or which is caused by an instrumentality of war.
DISCUSSION AND CONCLUSIONS:
1. The applicant requests his retirement orders be corrected to show his disability resulted from combat operations (convoy was under ambush attack which caused the accident) in Iraq.
2. Medical evidence provided by the applicant shows his unfitting conditions of chronic neck and lower back pain were incurred while in Iraq, a combat zone. However, the onset of these conditions began in August 2003 following a motor vehicle accident. There is no evidence to show this accident was combat-related.
3. There is no evidence in the available records and he has not provided sufficient evidence which shows his disabilities were incurred as a direct result of armed conflict, while engaged in extra hazardous service under conditions simulating war, or which is caused by an instrumentality of war. Therefore, there is insufficient evidence on which to amend his retirement orders.
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) AR20120015994
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20120015994
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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