IN THE CASE OF:	  

		BOARD DATE:  20 August 2013

		DOCKET NUMBER:  AR20130001661 


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, in effect, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to reflect the proper code to show he was retired due to permanent disability based on an injury or disease received in the line of duty (LOD) as a direct result of armed conflict or caused by an instrumentality of war and resulted from a combat-related injury as defined in Title 26, U.S. Code, section 104.

2.  The applicant states he completed 20 years and 5 months of active service and he had enough time for retirement.  His DD Form 214 shows his reason for retirement as temporary disability.  This keeps him from doing certain things through the Government and raises questions about whether he retired or if his disability limits him from performing certain tasks.  It also keeps him from being able to give his educational benefits to his family members. 

3.  The applicant provides:

* DA Form 199 (Physical Evaluation Board (PEB) Proceedings)
* Orders 025-0138 (retirement orders) and amendments
* DD Form 214
* DD Form 215 (Correction to DD Form 214)
* Temporary Disability Retired List (TDRL) PEB
* Removal from TDRL Notification Memorandum
* Orders 266-16 (removal from TDRL)
* Department of Veterans Affairs (VA) rating decision

CONSIDERATION OF EVIDENCE:

1.  Having had prior active service, the applicant enlisted in the Regular Army on 28 October 1987 and he held military occupational specialty (MOS) 21B (Combat Engineer).  

2.  He served through multiple extensions or reenlistments in a variety of stateside or overseas assignments, including Germany, Iraq, and Korea, and he attained the rank/grade of staff sergeant (SSG)/E-6. 

3.  His narrative summary, dictated on 10 December 2007, shows he complained of neck and upper back pain and weakness and spasm in his legs.  His weakness started in May 2006 after completing the advanced course.  He had increasing weakness and difficulty walking.  He had an MRI and a CT scan that revealed he had ossification of ligamentum flavum and significant compression of the thoracic cord T3-T5.  

	a.  He underwent a decompression on 20 May 2006.  However, after that he remained myelopathic and he had significant pain in his upper thoracic spine.  Additionally, while rehabilitating, he was noted to have drainage from his wound and he was diagnosed with a thoracic wound infection.  The wound was irrigated and debrided and ultimately healed.  Nevertheless, he continued to experience difficulty with balance and particularly left leg weakness. 

	b.  His final diagnosis was that of ossification of ligamentum flavum with thoracic cord compression and significant myelopathy, in LOD, did not exist prior to service and was aggravated by service; and a second diagnosis of residual paraparesis of lower extremities. 

	c.  He was unable to fulfill the requirements of his MOS due to spine pain and weakness of the leg.  He was referred to the physical disability evaluation system (PDES).  

4.  On 11 December 2007, a medical evaluation board (MEB) considered his records.  After consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed as having the medically-unacceptable conditions of ossification of ligamentum flavum with thoracic cord compression and significant myelopathy; and a second diagnosis of residual paraparesis of lower extremities.  He also had a diagnosis of sleep apnea that met retention standards.  The MEB recommended referral to a PEB.  


5.  He was counseled by a PEB Liaison Officer who indicated that he had reviewed the applicant's MEB packet to include the MEB proceedings, narrative summary, and his physical profile.  He acknowledged that he understood the PEB may determine some of the conditions listed on the MEB are not unfitting.  He agreed with the MEB's findings and recommendation and indicated he desired to continue serving on active duty.

6.  On 4 January 2008, an informal PEB convened and found the applicant's conditions prevented him from performing the duties required of his grade and specialty and determined he was physically unfit due to various conditions.  The PEB rated him under the VA Schedule for Rating Disabilities (VASRD) and, as shown in items 8a, 8b, and 8g (Disability Description, VA Code, Percentage) of the DA Form 199, he was granted the following:

	a.  Codes 5238/8520, left lower extremity paresis persistent following surgery for severe myelopathy from ossification of ligamentum flavum with significant cord compression, 40-percent (40%). 

	b.  Codes 5238/8520, right lower extremity weakness following above surgery and rehabilitation.  He was rated as moderate, incomplete paralysis, 20%.

	c.  Codes 5299/5237, chronic thoracic back pain following surgery to decompress his spinal cord from T3-T5, 10%. 

7.  The PEB also considered his medical condition of sleep apnea; however, this condition met retention standards and was not found to be unfitting; therefore it was not rated.  The PEB recommended a 60% combined rating and the applicant's placement on the TDRL with reexamination during July 2009.  The applicant concurred and waived his right to a formal hearing of his case.

8.  The applicant's DA Form 199 contains the following entries in item 10 (If Retired Because of Disability, the Board Makes the Recommended Finding that):

	a.  Item 10a – The Soldier's retirement is not based on disability from an injury or disease received in the 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.

	b.  Item 10b – The evidence of record reflects the Soldier was not a member or obligated to become a member of the Armed Forces or Reserve thereof, or the National Oceanic or Atmospheric Administration or the U.S. Public Health Service on 24 September 1975.

	c.  Item 10c – The disability did not result from a combat-related injury as defined in Title 26, U.S. Code, section 104.

9.  On 25 January 2008, Headquarters, III Corps and Fort Hood, Fort Hood, TX, published Orders 025-0138 releasing him from active duty on 15 April 2008 by reason of temporary physical disability and placing him on the TDRL in his retired rank/grade of SSG/E-6 effective 16 April 2008.  The orders stated:

   a.  Disability is based on an injury or disease received in LOD as a direct result of armed conflict or caused by an instrumentality of war and incurred in LOD during a period of war as defined by law:  No; and

   b.  Disability resulted from a combat-related injury as defined in Title 26, U.S. Code, section 104:  No. 

10.  He retired on 15 April 2008.  His DD Form 214 shows he was placed on the TDRL in accordance with paragraph 4-24b(2) of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) by reason of temporary disability.  Item 26 (Separation Code) of his DD Form 214 shows the entry "SFX."  He completed a total of 20 years, 8 months, and 29 days of active service.

11.  On 20 August 2009, a TDRL PEB convened and found the applicant's conditions of thoracolumbar pain persistent since emergent thoracic spine decompression, right lower extremity paresis, and left lower extremity paresis.  The TDRL PEB also diagnosed him with new unfitting conditions that included diabetes, hypertension, headache syndrome, benign prostatic hyperplasia (BPH), and gastroesophageal reflux disease.  The TDRL PEB determined his impairment had not sufficiently stabilized to permit final adjudication of his case.  The PEB recommended his retention on the TDRL for an additional period.  

12.  On 9 September 2011, a formal TDRL PEB convened and determined the applicant's medical conditions did not improve to the extent that he was considered fit for duty and that he remained unfit to reasonably perform the duties required by his previous grade and military specialty.  However, his conditions were considered sufficiently stable for final adjudication.  The PEB rated him under the VASRD and he was granted the following:

* Code 5242, degenerative arthritis of the thoracolumbar spine, 40%
* Codes 5242/8520, left lower extremity paresis, 40%
* Codes 5299/8620, right lower extremity paresis, 20%

13.  The PEB noted the applicant was injured while pulling perimeter security and having to jump from an M113 tank.  Injuries are a direct result of armed conflict and an instrumentality of war.  The PEB considered his medical condition of sleep apnea; however, this condition met retention standards and was not found to be unfitting and therefore it was not rated.  The PEB recommended a 
70% combined rating and the applicant's permanent retirement.  The applicant concurred and waived his right to a formal hearing.

14.  The applicant's formal TDRL DA Form 199 contains the following entries in item 10:

	a.  Item 10a – The Soldier's retirement is based on disability from injury or disease received in the 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.

	b.  Item 10c – The disability did result from a combat-related injury as defined in Title 26, U.S. Code, section 104.

15.  On 9 September 2011, the applicant concurred with the formal TDRL PEB findings and recommendation.  

16.  On 23 September 2011, the U.S. Army Physical Disability Agency published Orders 266-16 removing the applicant from the TDRL effective 23 September 2011 and permanently retiring him the next day by reason of permanent disability.  The orders stated:

   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 LOD during a period of war as defined by law:  Yes.
   
   b.  Disability resulted from a combat-related injury as defined in Title 26, U.S. Code, section 104:  Yes. 

17.  Army Regulation 635-40 establishes the 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 or her office, grade, rank, or rating.  It states a disability may be considered 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 LOD during a period of war.  A determination that a disability was caused by an instrumentality of war and incurred in the LOD 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.

18.  Paragraph 4-19 (PEB decisions – common criteria) states in:

	a.  Paragraph 4-19j (Armed Conflict – Instrumentality of War) certain advantages accrue to Soldiers who are retired for physical disability and later return to work for the Federal Government when it is determined that the disability for which retired was incurred under specific circumstances.  These advantages concern preference eligible status within the Civil Service system (Title 5, U.S. Code, section 3501).  One of those situations is when the disability is unfitting, was caused by an instrumentality of war, and was incurred in LOD during a period of war as defined by law. 

	b.  Paragraph 4-19k disability pay is awarded by reason of a combat-related injury.  Within the meaning of Title 26, U.S. Code, section 104, combat related injuries cover those disabilities attributable to the special dangers associated with armed conflict or the preparation or training for armed conflict.

	c.  Paragraph 4-19l a Soldier may be performing extra hazardous service even if not directly engaged in combat.  Extra hazardous service includes but is not limited to the following activities: Aerial flight duty, parachute duty, demolition duty, experimental stress duty, and diving duty.  Conditions simulating war include, but are not limited to, the following activities: performance of tactical exercises such as the squad or platoon in the assault; airborne operations; leadership reaction courses; grenade and live fire weapons practice; bayonet training; hand-to-hand combat training; repelling; and negotiation of combat confidence and obstacle courses.  In block 10c of the DA Form 199, the board will record its determination of whether the injury was combat-related as defined by Title 26, U.S. Code, section 104. 

	d.  Section II of the Glossary defines 

		(1)  Combat-related injury as a personal injury or sickness that a Soldier incurs under one of the following conditions: 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.

		(2)  Conditions simulating war as those circumstances of training so simulating conditions of war that a special personal risk attends the situation. The mere fact that training (calisthenics) was required, or that training (football) is sponsored by the military, does not equate with "conditions simulating war."

		(3)  Instrumentality of war is a device designed primarily 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.  There must be a direct causal 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.

19.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was referred to the PDES after surgery and rehabilitative efforts failed to improve his conditions.  He was considered by an MEB that referred him to a PEB.  The PEB recommended a 60% combined rating and the applicant's placement on the TDRL with reexamination during July 2009.  The applicant concurred and waived his right to a formal hearing of his case.  Accordingly, his TRDL retirement orders and subsequent DD Form 214 were published.  

2.  At the time he underwent a PEB in 2008, the source of his injuries was unknown.  His narrative summary did not indicate how he was injured and he provides no documentation of the source of his injuries.  As such, when his DA Form 199 was prepared, temporary retirement orders were published, and his DD Form 214 was processed, they all correctly indicated his injuries did not result from combat or an instrumentality of war.  

3.  When the applicant underwent a formal TDRL PEB in September 2009, the PEB noted the applicant was injured while pulling perimeter security and having to jump from an M113 tank.  Injuries are a direct result of armed conflict and an instrumentality of war.  The PEB recommended a 70% combined rating and the applicant's permanent retirement.  The applicant also concurred and waived his right to a formal hearing.

4.  Now that the cause of his injuries was known, his TDRL PEB and orders removing him from the TDRL clearly indicated his injuries are a direct result of armed conflict and an instrumentality of war.  Had all the information been available to the PEB in 2008, his DA Form 199, TDRL orders, and DD Form 214 would have indicated his injuries are a direct result of armed conflict and an instrumentality of war.  

5.  Therefore, as a matter of equity, his original PEB Proceedings, retirement orders, and DD Form 214 should be corrected to show his injuries are a direct result of armed conflict and an instrumentality of war.  

BOARD VOTE:

____X___  ____X___  ___X__ _  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  amending his DA Form 199, dated 4 January 2008: 

		(1)  adding to item 8b the entry "Soldier was injured while pulling perimeter security and having to jump from an M113 tank; injuries are a direct result of armed conflict and an instrumentality of war; 

		(2)  deleting from item 10a the entry the "Soldier's retirement is not based on disability from injury or disease received in the 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" and adding the entry Soldier's retirement is based on disability from an injury or disease received in the 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"; and 


		(3)  deleting from item 10c the entry "The disability did not result from a combat-related injury as defined in Title 26, U.S. Code, section 104" and adding the entry "The disability did result from a combat-related injury as defined in Title 26, U.S. Code, section 104."
	b.  Orders 025-0138, issued by Headquarters, III Corps and Fort Hood, Fort Hood, TX, on 25 January 2008:

		(1)  deleting the entry "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 LOD during a period of war as defined by law:  No" and adding the entry "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 LOD during a period of war as defined by law: Yes"; and 

		(2)  deleting the entry "Disability resulted from a combat-related injury as defined in Title 26, U.S. Code, section 104:  No" and adding the entry Disability resulted from a combat-related injury as defined in Title 26, U.S. Code, section 104:  Yes."  

	c.  amending the DD Form 214, ending on 15 April 2008, by adding the word "combat" to item 28 (Narrative Reason for Separation). 




      _______ _  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)                                         AR20130001661



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ABCMR Record of Proceedings (cont)                                         AR20130001661



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