BOARD DATE:	  4 June 2013

		DOCKET NUMBER:  AR20120016319 


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 DA Form 199 (Physical Evaluation Board (PEB) Proceedings) to show:

* his back injury was combat-related
* he received a 30 percent permanent disability rating

 2.  The applicant states:

* his back injury originally occurred during a training exercise in conditions simulating war in 1997 and it is documented in his Line of Duty (LOD) paperwork
* his 2004 injury occurred while loading a tactical truck with equipment (all instrumentalities of war) in the combat theater and it is documented in his LOD paperwork
* his discharge was reviewed by the Physical Disability Board of Review (PDBR) in 2010, resulting in a change in his discharge to a 30 percent permanent disability rating
* his DA Form 199 was not amended to show the PDBR decision

3.  The applicant provides:

* Medical records extracts
* DA Form 199
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 215 (Correction to DD Form 214)
* PDBR Record of Proceedings, dated 9 July 2010
* Orders Number 222-0025, Installation Management Command, Headquarters, U.S. Army Garrison, Fort Carson, Fort Carson, CO, dated 10 August 2010
* Orders Number 291-0009, Installation Management Command, Headquarters, U.S. Army Garrison, Fort Carson, Fort Carson, CO, dated 18 October 2010

CONSIDERATION OF EVIDENCE:

1.  After having had prior enlisted service, the applicant was appointed a major in the Army National Guard on 14 August 2003.  His area of concentration was 13A (Field Artillery).

2.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 16 July 1997, shows:

* the applicant injured/strained his back muscles while crawling through a high mobility multi-purpose wheeled vehicle (HMMVEE) during a hasty move
* he was on active duty for training at Fort Carson, CO
* his injury was incurred in the LOD and no formal LOD investigation was required
   
3.  On 21 July 1997, the applicant provided a sworn statement in which he indicated that "on 13 July during Regional Training Brigade Lane Training…as a result of crawling from the front of the HMMVEE to the back and then trying to orient himself while the vehicle was moving, I injured my back."  

4.  Orders Number 352-075, State of Wyoming, Adjutant General's Office, Cheyenne, WY, dated 18 December 2003, ordered the applicant to active duty in support of Operation Iraqi Freedom for the period 3 to 6 January 2004.

5.  Orders Number 355-041, State of Wyoming, Adjutant General's Office, Cheyenne, WY, dated 20 December 2004, amended Orders Number 352-075, above by ordering the applicant to active duty for the period 3 January 2004 to 
1 January 2005.

6.  A review of the available medical records show the applicant was seen on multiple occasions for back pain during the period October 2004 through April 2005.


7.  A DA Form 2173, dated 11 November 2004, shows:

* while deployed in Kuwait, the applicant experienced long-term back pain following a section movement from Camp Arifjan to Camp Buering
* he sought treatment after 30 days and his magnetic resonance imaging showed bulging disks in his lower back; physical therapy was prescribed
* he was on active duty and his injury was incurred in the LOD
* no formal LOD investigation was required

8.  On 26 April 2005, the applicant was given a temporary profile for back pain.  

9.  On 29 June 2005, he requested recall to active duty to receive medical treatment for the injuries incurred while mobilized.

10.  On 12 July 2005, the applicant was ordered to active duty to participate in the Reserve Component Medical Holdover Medical Retention Processing Program for completion of medical care and treatment.

11.  On 3 October 2007, a formal PEB rated him as follows:

* spinal fusion, Department of Veterans Affairs (VA) code 5241, 10 percent
* arthritis, degenerative, right (dominant) shoulder, VA code 5003, 0 percent

12.  The PEB also:

* found him physically unfit 
* recommended a combined rating of 10 percent and advised him of his options of accepting disability severance pay and forfeiting his Reserve retirement or being placed in an inactive Reserve status and receive retired pay at age 60 by forfeiting disability severance pay

13.  The applicant's DA Form 199 shows in:

   a. Item 8e (In line of duty in the time of national emergency or after 14 September 1978) is marked "Y" (Yes).

	b.	Item 10a states "The Soldier's retirement is not 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."

	c.  Item 10c states "The disability did not result from a combat-related injury as defined in Title 26, U.S. Code, section 104."
14.  On 20 November 2007, the applicant was honorably discharged due to a disability with severance pay.  

15.  On 10 August 2010, the PDBR reviewed the facts and circumstances surrounding the applicant's discharge and determined the regulations or guidelines relied upon by the PEB were inconsistent with the application of the VA Schedule for Rating Disabilities (VASRD) in effect at the time of the adjudication.

16.  The PDBR recommended modification of the PEB findings as follows and that the applicant's discharge be re-characterized to reflect a permanent  disability retirement, effective as of the date of his prior medical separation:

* disk disease and surgical fusion, lumbar spine, VASRD code 5241, with a 20 percent disability rating 
* degenerative arthritis, right shoulder, VASRD code 5010, with a 10 percent disability rating 
* a combined 30 percent disability rating

17.  The PDBR did not recommend changing Item 10 of the applicant's DA Form 199.

18.  On 4 August and 20 October 2011, the Combat-Related Special Compensation Branch, U.S. Army Human Resources Command, Fort Knox, KY, denied the applicant's requests for Combat-Related Special Compensation (CRSC).

19.  The PDBR's recommendations were accepted and the applicant's separation was re-characterized as a disability retirement.  On 8 February 2012, he was issued a DD Form 215 (Correction to DD Form 214) showing he was separated due to a permanent disability and that his name was placed on the Permanent Disability Retired List.

20.  Title 26, U.S. Code, Section 104 states, in pertinent part, that 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. 

21.  Army Regulation 635-40 (Personnel Separations - Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-19j, 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 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 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.

          (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 line of duty during a period of war as defined by law.  

   c.  The term "instrumentality of war" refers to a device primarily designed for military service and intended for use in such service at the time of the occurrence of the injury.  It may also be a device not designed primarily for military service if use of or occurrence involving such a device subjects the individual to a hazard peculiar to military service.  This use or occurrence differs from the use or occurrence under similar circumstances in civilian pursuits.

22.  CRSC, as established by section 1413a, Title 10, U.S. Code, as amended, provides for the payment of the amount of money a military retiree would receive from the VA for combat related disabilities if it was not for the statutory prohibition for a military retiree to receive a VA disability pension.  Payment is made by the Military Department, not the VA, and is tax free.  Eligible members are those retirees who have 20 years of service for retired pay computation (or 20 years of service creditable for reserve retirement at age 60) and who have disabilities that are the direct result of armed conflict, especially hazardous military duty, training exercises that simulate war, or caused by an instrumentality of war.  Such disabilities must be compensated by the VA and rated at least 10% disabling.  Military retirees who are approved for CRSC must have waived a portion of their military retired pay since CRSC consists of the Military Department returning a portion of the waived retired pay to the military retiree.



23.  The U.S. Army Physical Disability Agency has established that:

     a.  for an injury sustained from an instrumentality of war to be designated as such, it must have been incurred during a period of war defined by law;  

     b.  "incurred" means the in the line of duty condition had its medical origin while the Soldier was in the combat zone; and

     c.  conditions that have been diagnosed or determined to have had their inception prior to deployment to a combat zone are normally not considered to have been incurred in the combat zone even if the condition may appear worse if first diagnosed after deployment.

24.  Department Of Defense Instruction 1332.38 (Physical Disability Evaluation) defines the term under conditions simulating war, in general, as disabilities resulting from military training, such as war games, practice alerts, tactical exercises, airborne operations, leadership reaction courses; grenade and live fire weapons practice; bayonet training; hand-to-hand combat training; rappelling, and negotiation of combat confidence and obstacle courses.  It does not include physical training activities, such as calisthenics and jogging or formation running and supervised sports.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for correction of his DA Form 199 to show his back injury was combat-related and that he received a 30 percent permanent disability rating was carefully considered.

2.  The evidence shows a PEB found him physically unfit due to his spine and right shoulder conditions and determined his unfitting conditions were not combat-related.  

3.  The PEB and VA chose different coding options for his conditions.  However, a review by the PDBR determined the codes used by the PEB were inconsistent with the VASRD in effect at the time.  The PDBR further determined his conditions warranted a 30 percent combined disability rating, thus making him disability retirement eligible.  His discharge with severance pay was subsequently changed to show he was permanently retired due to a disability and he was issued a DD Form 215 to show these changes.

4.  Although the applicant desires to have his DA Form 199 changed to show a 30 percent disability rating, the PDBR Record of Proceedings already shows this change.  Therefore, there is no basis for granting this requested relief.
5.  By his own admission in a sworn statement, the applicant states his back injury occurred while in lane training at Fort Carson, CO.  His condition manifested itself in the line of duty, but was not caused by combat or an instrumentality of war.  Crawling inside a HMMVEE is not simulating war or an instrumentality of war.  The fact that a condition was incurred or aggravated in the line of duty not in time of war or national emergency is not sufficient to change the findings of the PEB.

6.  Item 8e of his DA Form 199 is marked "yes" because the applicant's initial injury was incurred in 1997 and aggravated in 2004, both dates occurring after 14 September 1978.  

7.  Based on above, item 10 of his DA Form 199 is appropriately annotated and there is no basis to grant the requested relief in this case. 

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)                                         AR20120016319



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ABCMR Record of Proceedings (cont)                                         AR20120016319



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