BOARD DATE:	  10 October 2013

		DOCKET NUMBER:  AR20130001439 «Merge Record #»


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:

* amendment of Orders 131-2230, subparagraph d, to show the entry "Yes" versus "No"
* correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show award of the Global War on Terrorism Service Medal (GWOTSM)

2.  The applicant states:

	a.  Subparagraph d of Orders 131-2230 should be "Yes," not "No," since his disability was based on an injury received in the line of duty (LOD) by an instrumentality of war and incurred in the LOD during a wartime period as defined by law.  The orders should be corrected because it's the just, honorable, and moral thing to do.

	b.  The GWOTSM is listed in his DD Form 214WS (DD Form 214 Worksheet), but it does not appear on his DD Form 214.  An error was made and he would like to have it corrected.

3.  The applicant provides:

* DA Form 2173 (Statement of Medical Examination and Duty Status), dated 15 June 2005
* Headquarters, 1st U.S. Army, memorandum, subject:  Delegation of Approval Authority – LOD Determination
* Task Force 218 memorandum, dated 2 August 2005, subject:  LOD Determination for (Applicant)
* Headquarters, U.S. Infantry Center, Orders 131-2230, dated 11 May 2006
* DD Form 214WS
* DD Form 214

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant reenlisted in the Tennessee Army National Guard (TNARNG) on 30 January 1997.  He completed training and was awarded military occupational specialty 88M (Motor Transport Operator).  He was ordered to active duty in support of Operation Iraqi Freedom (OIF) and entered active duty on 18 December 2003.

3.  A DA Form 2173, dated 14 June 2005, shows he injured his right knee running during Army physical training.  The injury was determined to be in the LOD.

4.  His records contain and he provides a copy a DA Form 2173, dated 15 June 2005, which shows he was performing squad maneuvers and fell injuring his right arm.  A magnetic resonance image (MRI) revealed completed avulsion (tearing away) of the biceps tendon requiring surgical repair.  He was performing his military duties and there was no evidence of misconduct or negligence.  The injury was determined to be in the LOD.

5.  A Narrative Summary (NARSUM) – Medical Evaluation Board (MEB) Addendum, dated 16 November 2005, shows he stated he was running when he stepped on a rock and twisted his knee around July 2004.  Based on the findings of an MRI, he was scheduled for a right knee arthroscopy and partial medial menisectomy that was to be performed on 28 October 2005.  He cancelled the surgery stating he could not have it done and it was no longer hurting.

6.  A NARSUM – MEB, dated 29 November 2005, shows he underwent an examination on 16 November 2005 for his chief complaint of right biceps tear reconstruction and a right medial meniscus tear.  The injury was determined to be in the LOD.  He was referred to an MEB.

7.  On 9 January 2006, an MEB convened and considered the applicant's medical conditions of right biceps tendon tear, right meniscus tear, right cubital tunnel syndrome, right carpal tunnel syndrome, hypertension, and hyperlipidemia.  The MEB determined his conditions of right biceps tendon tear and right meniscus tear were medically unacceptable and were incurred while he was entitled to basic pay.  The MEB recommended his referral to a physical evaluation board (PEB).  He concurred with the findings and recommendations of the MEB and they were approved on 19 January 2006.

8.  A Functional Capacity Evaluation, dated 10 March 2006, shows he was referred for a functional capacity evaluation through the PEB.  The evaluation stated he fell and landed on his right side while performing training in 2004.  He was serving in the ARNG for 11 1/2 years when his unit was alerted for possible service in Iraq.  He was training for deployment at the time of the injury.

9.  On 14 April 2006, an informal PEB convened and considered the applicant's unfitting medical conditions.  The PEB determined his medical condition of torn right biceps tendon prevented performance of duty in his grade and specialty.  The PEB found him physically unfit and recommended a combined rating of 10 percent and separation with severance pay, if otherwise qualified.  The PEB did not find that his disability was from an injury 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 and did not result from a combat-related injury.

10.  On 10 April 2006, he concurred with the findings and recommendation of the PEB and waived his right to a formal hearing.

11.  He provides a copy of his DD Form 214WS which shows in:

* item 12f (Foreign Service) – no credit for foreign service
* item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) –

* Army Good Conduct Medal
* Army Reserve Components Achievement Medal (3rd Award)
* National Defense Service Medal
* GWOTSM
* Armed Forces Reserve Medal with "M" Device
* Noncommissioned Officer Professional Development Ribbon
* Army Service Ribbon
* Army Lapel Button
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar
* Expert Infantryman Badge

* item 18 (Remarks) – "ORDERED TO ACTIVE DUTY IN SUPPORT OF OPERATION IRAQI FREEDOM IAW 10 USC 12302"

12.  On 11 May 2006, he was honorably discharged in pay grade E-5 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, due to disability with severance pay.  His DD Form 214 shows in:

* item 12f – no credit for foreign service
* item 13 –

* National Defense Service Medal
* Army Service Ribbon

* item 18 – "ORDERED TO ACTIVE DUTY IN SUPPORT OF OPERATION IRAQI FREEDOM IAW 10 USC 12302"

13.  Headquarters, U.S. Infantry Center, Orders 131-2230, dated 11 May 2006, discharged him from the ARNG for disability with severance pay.  Subparagraph d of the additional instructions indicated his disability did not result from a combat-related injury as defined in Title 26, U.S. Code, section 104 (Compensation for Injuries and Sickness).

14.  He was honorably discharged from the TNARNG on 11 May 2006 under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 8-35i(8) (Medically Unfit for Retention).  His National Guard Bureau Form 22 (Report of Separation and Record of Service) does not list the GWOTSM as an authorized award.

15.  In an advisory opinion, dated 5 March 2013, the U.S. Army Physical Disability Agency (USAPDA) legal advisor reiterated the applicant's request.  The USAPDA legal advisor stated:

	a.  It was unclear if the applicant simply wanted to have the orders reflect that his condition was incurred in the LOD or if he was requesting some sort of combat relationship to his incurred disability.

	b.  The applicant's 2005 MEB NARSUM indicated that his injury was incurred "while in training.  He fell, landing on his right side."  The applicant's DA Form 2173 describing the LOD findings, which were included in the MEB case file, indicated he fell while performing squad maneuvers.

	c.  On 28 March 2006, an informal PEB found the applicant unfit for a torn right biceps tendon and found that the condition was not the direct result of armed combat nor was it directly caused by an instrumentality of war.  Since the disability was incurred in the LOD, it was compensable and he was authorized separation with severance pay.  On 10 April 2006 after being counseled concerning his rights, the applicant concurred with the PEB findings and waived his right to a formal hearing.

	d.  On 11 May 2006, Headquarters, U.S. Infantry Center, Orders 131-2230, authorized the applicant's separation from the military with disability compensation for a disability incurred in the LOD.  "Instruction d simply indicates that the disability was not incurred ILOD [in the LOD] as a direct result of armed combat or an instrumentality of war.  A reading of the entire sentence clearly reveals that it doesn't imply that the condition was not incurred ILOD, it states that it was not ILOD AND combat related.  The phrase at instruction d is the standard phrase required for DA [Department of the Army] orders found at AR 600-8-105 [in Army Regulation 600-8-105 (Military Orders)].  It doesn't mean that the applicant's condition was not ILOD.  There is no evidence that the condition was incurred as a direct result of armed conflict or by an instrumentality of war."

	e.  The applicant has provided no evidence of any error in the PEB findings or final orders separating him.  No change is recommended to the applicant's records.

16.  On 12 March 2013, the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  In his response, dated 28 February 2013, the applicant stated:

	a.  It is his understanding that (if) the injury he sustained during OIF while serving under Title 10 orders at his mobilization site performing combat training with his unit on the way to Iraq was not caused by an instrumentality of war and incurred in the LOD during a wartime period as defined by law, then there is no such thing.

	b.  In his application to the ABCMR regarding the above statement, he requested amendment of subparagraph d of his orders, dated 11 May 2006, on the basis of causal by an instrumentality of war and incurred in the LOD during a wartime period as defined by law should be "Yes" and not "No" based on the law.

	c.  To address the USAPDA letter, he is very clear about what he wants.  He never requested amendment of his orders to show "some sort of combat relationship" to his incurred disability, but for subparagraph d to say "Yes," not "No," for the 3 years he spent on active duty and because the injury he suffered was caused by an instrumentality of war and incurred in the LOD during a wartime period.

17.  Army Regulation 600-8-105 sets the mandated operating tasks for the orders program.  Paragraph 2-22 states an order may be corrected by the organization that published the original orders to show the true states of affairs existing at the time the original orders were published.

18.  An instrumentality of war is defined as a vehicle, vessel, or device designated primarily for military service and intended for use in such service at the time of the occurrence of injury.  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 or wounds caused by a military weapon, accidents involving military combat vehicles, injury of sickness caused by fumes, gases, or explosion or military ordnance, vehicles, or materials.

19.  Army Regulation 600-8-22 (Military Awards) states the GWOTSM is authorized for award to members of the Armed Forces of the United States who participated in Global War on Terrorism operations outside of the areas of eligibility designated for award of the Global War on Terrorism Expeditionary Medal, Afghanistan Campaign Medal, or Iraq Campaign Medal.  All Soldiers on active duty on or after 11 September 2001 to a date to be determined, having served 30 consecutive or 60 nonconsecutive days, are authorized award of the GWOTSM.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted and found to be without merit.  The evidence of record shows he was diagnosed and treated for a right biceps tendon tear while serving on active duty.  The injury was determined to be in the LOD.  He underwent an MEB and PEB and was found medically unfit with a rating of 10 percent.  He was discharged from active duty on 11 May 2006 with entitlement to severance pay.

2.  Orders 131-2230, subparagraph d, states his injury was not incurred in the LOD as a direct result of armed combat or an instrumentality of war.  It does not mean his injury was not incurred in the LOD; it means the LOD injury was not the direct result of armed combat or an instrumentality of war.

3.  The evidence of record also shows his unit was alerted for possible service in Iraq and an accident when he fell during squad maneuvers occurred during his training for deployment.  A PEB found his injury was not the direct result of armed combat nor was it directly caused by an instrumentality of war.  He concurred with the findings and recommendations of the PEB and waived his right to a formal hearing.

4.  He contends the injury he suffered was caused by an instrumentality of war was carefully considered.  However, he has failed to provide sufficient evidence to show his injury was caused by a military weapon or combat vehicle or caused by fumes or gases, etc.  Unless his injury met these criteria, he is not entitled to an amendment to his orders to indicate such.  

5.  Without evidence to the contrary, there appears to be no error or injustice in his separation process from active duty and the ARNG.  His contentions and the documents he submitted do not demonstrate error or injustice in the disposition of his case by the USAPDA.

6.  The evidence of record confirms he served during a qualifying period of service for entitlement to the GWOTSM.  Therefore, his DD Form 214 should be corrected to show this award.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x___  ___x_____  ___x_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army and State ARNG records of the individual concerned be corrected by adding award of the GWOTSM to his DD Form 214.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to amending Orders 131-2230, subparagraph d, to read "Yes."



      ____________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)                                         AR20130001439



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ABCMR Record of Proceedings (cont)                                         AR20130001439



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