BOARD DATE:	  16 April 2013

		DOCKET NUMBER:  AR20120016669 


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) under Items 10a to 10c to show his right hip injury as a disability that was incurred in the line of duty (LOD) as a result of an instrumentality of war.

2.  He states he has attached a DA Form 2173 (Statement of Medical Examination and Duty Status) which detailed the accident to his right hip as he was training in Iraq on a Palletized Load System (PLS).  He jumped off the vehicle, severely injuring his right hip.  It was also noted that the injury occurred in the LOD and no formal LOD investigation was required.  

3.  He provides a copy of the DA Form 2173.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel provides no statement or additional evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant initially enlisted in the Regular Army (RA) on 13 March 1989.  He completed training and was awarded military occupational specialty (MOS) 13B (Cannon Crewmember/Nuclear Cannon Assembly).  He was honorably released from active duty on 12 July 1993, at the expiration of his term of service, and he was transferred to a Reserve unit.

2.  He again enlisted in the RA on 3 February 1994.  He held MOS 88M (Motor Transport Operator).  He served continuously on active duty through several reenlistments and in various assignments.  He served in Iraq from 3 March through 13 May 2003.

3.  His record contains and he provides a copy of a DA Form 2173, dated 19 March 2008, which shows he was being treated at the Brooke Army Medical Center (BAMC), Fort Sam Houston, TX, for an injury to his right hip.  The form indicated the injury was in the LOD and no investigation was required.  The form detailed that he had returned from Iraq to Fort Riley, KS, and was referred to BAMC where he underwent surgery for his right hip pain and limited range of motion present since it was injured when he fell out of his truck in June 2003 while in Iraq.  

4.  His Medical Evaluation Board (MEB) proceedings are not available for review with this case.  However, it appears an MEB convened and the MEB found he had certain medically unacceptable conditions after consideration of clinical records, laboratory findings, and physical examinations.  It also appears the MEB recommended his referral to a PEB and he presumably agreed with the MEB's findings and recommendation and indicated he did not desire to continue on active duty.

5.  On 1 June 2010, an informal PEB convened and considered the applicant's disabilities of right hip joint replacement due to osteoarthritis; left arm, loss of motion due to tenosynovitis; bilateral hallux limitus due to arthritis, degenerative of both great toe metatarsaphalangeal joints; arthritis, degenerative, left knee; arthritis, degenerative, left hip; and multilevel lumbar degenerative disk disease evaluated as degenerative arthritis of the spine.  The PEB determined that these conditions, independently or combined, rendered the Solider unfit for assigned duties.  The PEB recommended he be permanently retired with a combined disability rating of 80 percent.  The PEB noted that the disabilities did not result from a combat-related injury.   

6.  On 1 June 2010, he concurred with the findings and recommendations of the PEB and waived his right to a formal hearing.

7.  His DA Form 199 contains the following entries in Item 10 (If Retired Because of Disability, the Board Makes the Recommended Finding that):

* 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 the line of duty during a period of war as defined by law
* 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 NOAA or the USPHS on 24 September 1975
* the disability did not result from a combat-related injury as defined in Title 26, U.S. Code, section 104

8.  On 15 June 2010, his PEB was approved by an official at the U.S. Army Physical Disability Agency (USAPDA) on behalf of the Secretary of the Army.

9.  On 14 September 2010, he was honorably retired in pay grade E-7, under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24B(1), due to permanent disability.  He was credited with completing over 21 years of net active service.  

10.  In a letter, dated 25 May 2012, the Combat-Related Special Compensation (CRSC) Branch, U.S. Army Human Resources Command, advised him that there was no evidence to show combat-related event(s) caused his right hip degenerative joint disease.

11.  Army Regulation 635-40 establishes the Army physical disability evaluation system 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.  The regulation defines instrumentality of war as a device designed primarily for military service and intended for use in such service at the time of the occurrence of the injury.  There must be a direct casual relationship between the use of the instrumentality of war and the disability and the disability must be incurred incident to a hazard or risk of the service.  The regulation states in:

   a. Paragraph 4-19(2)(b) states in block 10C the board will record its determination of whether the injury was combat-related as defined by Title 26, U.S. Code, section 104.

   b.  Paragraph 4-19j 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:

		(1)  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:

			(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 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

			(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 the line of duty during a period of war as defined by law.
   
   c.  Paragraph 4-19k(b)(2) that disability pay is awarded by reason of combat-related injury from performing extra hazardous service even if not directly engaged in combat and conditions simulating war, including but not limited to, performance of tactical exercises.
   
   d.  Paragraph 4-24b(1) that upon final decision of the USAPDA, an individual would be issued retirement orders or other disposition instructions for permanent retirement for disability.  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.

12.  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.

13.  An instrumentality of war is a vehicle, vessel, or device designated primarily for Military Service and intended for use in such service at the time of the occurrence or injury.  It may also include such instrumentalities not designated primarily for Military Service if use of or occurrence involving such instrumentality subjects the individual to a hazard peculiar to Military Service.  

14.  CRSC, as established by Title 10, U.S. Code, section 1413a, 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 weren't 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-percent 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows in June 2003, while serving in Iraq, the applicant severely injured his right hip during training after jumping off a PLS vehicle.  In June 2010, he was rendered unfit for several disabilities sustained as a proximate result of performing duty and physical training, to include right hip joint replacement, by a PEB.  The PEB noted that the disabilities did not result from an instrumentality of war.  The PEB recommended permanent retirement with a combined rating of 80 percent.  He was counseled and concurred with the PEB's findings and recommendations and, accordingly, he was retired.

2.  He contends his right hip injury was a result of an instrumentality of war.  However, a determination that a disability is the result of an instrumentality of war may be made if the disability was incurred in any period of service as a result of such diverse causes as wounds caused by a military weapon, accidents involving a military combat vehicle, injury of sickness cause by fumes, gases, or explosion of military ordnance, vehicles of material.

3.  There is no evidence of record and he has not shown the PLS was in use as an instrument of war at the time of his hip injury.  A statement is not sufficient evidence to conclude that the PLS vehicle was being used as an instrumentality of war or that its use subjected him to a hazard peculiar to military service at the time.  No evidence exists that shows his right hip injury was caused by an instrumentality of war.  

4.  Therefore, he does not meet the criteria to have Items 10a and 10b, or 10c of his DA Form 199 corrected.  His injuries were incurred and aggravated as proximate result of performing duty.  He has not shown his hip injury was incurred incident to a hazard or risk or the service.  Therefore, there is insufficient evidence to change Item 10a.

5.  With respect to CRSC, the criteria are specifically for those military retirees who have combat-related disabilities.  Incurring disabilities while in a theater of operations or in training exercises is not, in and of itself, sufficient to grant a military retiree CRSC.  The military retiree must show the disability was incurred while engaged in combat, while performing duties simulating combat conditions, or instrumentality of war or while performing especially hazardous duties such as parachuting or scuba diving.

6.  He submitted evidence to show his right hip injury was service related.  However, there is no evidence of record and he did not provide sufficient evidence to shows his right hip injury was the result of an instrumentality of war.  Without evidence, there is an insufficient basis in which he is eligible for CRSC for this injury.

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)                                         AR20120016669



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ABCMR Record of Proceedings (cont)                                         AR20120016669



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