BOARD DATE:	  13 June 2013

		DOCKET NUMBER:  AR20120020266 


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 retirement was based on a disability from an injury that was received in the line of duty as the 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.

2.  The applicant states his DA Form 199 has conflicting information that needs to be reconciled.  He states his low back pain with radiculopathy is coded as non-combat related; however, the injury was first diagnosed after his service in the first Gulf War.  The injury did not worsen until his subsequent deployment to Iraq that required him to walk long distances wearing a full combat load.

3.  The applicant provides the first two pages of his DA Form 199, dated
14 January 2011. 

CONSIDERATION OF EVIDENCE:

1.  Records show the applicant enlisted in the Regular Army on 30 December 1985 in the rank/grade of private first class (PFC)/E-3.  He completed training and he was awarded military occupational specialty (MOS) 76P (Materiel Control and Accounting Specialist).  He later served in Southwest Asia for the period
26 April through 25 June 1991.

2.  His record contains a Standard Form 88 (Report of Medical Examination) that shows he was found physically qualified on his periodic physical examination on 16 March 1992.

3.  On 13 June 1993, he was honorably discharged by reason of being ordered to active duty as a warrant officer in the U.S. Army.  On 14 June 1993, the applicant executed a DA Form 71 (Oath of Office – Military Personnel) and he was appointed as a Reserve warrant officer of the Army with concurrent call to active duty.

4.  Records indicate he served in Iraq from 4 November 2003 through 27 October 2004.

5.  The complete facts and circumstances surrounding what appears to be the applicant's first PEB are not available for review; however, his record contains a memorandum, dated 10 February 2006, issued by the U.S. Army Physical Disability Agency (USAPDA), that states the findings of the applicant's PEB were approved.  The applicant was determined physically fit to perform the duties of his office, grade, rank, and MOS and he was found to be deployable within the limitations of his profile.

6.  On 5 November 2010, a Medical Evaluation Board (MEB) convened and considered the applicant's conditions under the provisions of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3 of chronic low back pain with radiculopathy, Type II diabetes requiring medications, diabetic neuropathy, and many other ailments that were found to meet retention standards.

7.  The MEB recommended the applicant be referred to a PEB.  On 8 November 2010, the findings and recommendations of the MEB were approved.  On
10 November 2010, the applicant was informed and agreed with the approved findings and recommendations of the MEB.

8.  On 7 December 2010, an informal PEB convened and considered the applicant's disabilities of chronic low back pain, Type II diabetes, diabetes mellitus, and diabetic neuropathy.  The PEB determined he was fit for duty in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 3-1.

9.  On 9 December 2010, the applicant non-concurred with the findings and recommendations of the PEB and requested a formal hearing of his case.


10.  On 27 December 2010, a PEB was again convened and found the applicant unfit for:

	a.  Low back pain with radiculpathy – noncombat related.  The PEB findings stated the back pain onset was reported by the applicant during the first Gulf War in 1991.

	b.  Type II diabetes mellitus with residual of neuropathy – noncombat related – noncombat zone.  Diabetes alone did not prevent the applicant from performing the duties of his MOS, but combined with neuropathy as a co-morbidity, it was determined to be unfitting.

11.  The case was adjudicated in accordance with Department of Defense memorandum, subject:  Policy and Procedural Direct-Type Memorandum for the Disability Evaluation System (DES) Pilot Program, dated 21 November 2007.  The specific Veterans Affairs Schedule for Rating Disabilities (VASRD) code(s) to describe the applicant's condition and disability percentage awarded would be determined by the VA.  Further, the applicant's disposition would be determined by the PEB upon receipt of the VA disability percentages.

12.  On 12 January 2011, the VA referred the following proposed DES service-connected disabilities for the applicant for a combined evaluation of 40 percent:

* Diabetes Mellitus Type II with Erectile Dysfunction, 20 percent

* Degenerative Disc Disease Lumbar Spine with L5 Grade II Spondylolisthesis and Right Extremity Radiculopathy, 10 percent

* Peripheral Neuropathy Right Lower Extremity, 10 percent

* Peripheral Neuropathy Left Lower Extremity, 10 percent

13.  On 14 January 2011, an informal reconsideration of the applicant's PEB was completed.  The PEB reviewed all available medical records and determined the applicant's medical conditions prevented performance of duty in his grade and specialty.  The PEB found the applicant physically unfit and recommended a combined rating of 40 percent and that he be retired due to permanent disability.  The PEB noted the applicant's retirement was 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.  His disabilities did not result from a combat related injury.

14.  On 26 January 2011, the applicant concurred with the findings and recommendations of the PEB, waived a formal hearing of his case, and indicated he did not request reconsideration of his VA ratings.

15.  On 30 April 2011, the applicant retired from active duty, in the rank/grade of chief warrant officer four (CW4)/W-4, under the provisions of Army Regulation 635-40, chapter 4, for permanent (enhanced) disability.

16.  The applicant's record is void of any evidence and he has not provided any evidence showing he ever participated in actual combat or that he sustained an injury as the result of participating in combat.

17.  Army Regulation 635-40 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/her office, grade, rank, or rating.  It states:

	a.  A disability may be considered to be 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.

	b.  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.

	c.  In 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 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.

18.  Title 26, U.S. Code, section 104, states that for purposes of this subsection, the term "combat-related injury" means personal injury or sickness that 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 evidence shows the applicant has a history of suffering from lower back pain and diabetes.  However, his record is void of any evidence and he has not provided any evidence showing he sustained an injury as a result of participating in combat.

2.  Evidence shows the applicant was medically evaluated throughout his career.  He was subsequently evaluated by an MEB and recommended for referral to an informal PEB.  The PEB determined the applicant to be physically unfit for retention in the Army and recommended his placement on the Retired List with a combined disability percentage rating of 40 percent.  The applicant concurred with the findings and recommendations of the PEB.

3.  His conditions may have manifested in the line of duty but they were not caused by combat or an instrumentality of war.  There is no evidence that shows his condition was incurred during the performance of duty in combat-related operations as designated by the Secretary of Defense.  The fact that a condition occurred or was aggravated in the line of duty in time of war or national emergency is not sufficient to change the findings of his PEB.

4.  The available evidence in this case indicates the applicant was properly evaluated for his medical conditions by the PEB and he was afforded all of his due-process rights during the evaluation of his case.  It is also evident that more than one PEB considered his arguments regarding his medical diagnosis and the issue of whether they were caused by an instrumentality of war, and the applicant was given proper consideration.

5.  In view of the foregoing, there is an insufficient basis for granting the applicant's 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 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)                                         AR20120020266



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120020266



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1