IN THE CASE OF:	  

		BOARD DATE:	  5 September 2013

		DOCKET NUMBER:  AR20130001878 


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 retirement orders to show his disability is (instead of is not) based on injury or disease received in the line of duty (ILOD) as a direct result of Armed Conflict or cause by an instrumentality of war and incurred ILOD during a war period as defined by law. 

2.  The applicant states the orders should have stated "Yes" instead of "No" to show his disability was based on an injury or disease received ILOD as a direct result of Armed Conflict or cause by an instrumentality of war and incurred ILOD during a war period as defined by law. 

3.  The applicant provides:

* Orders 241-0001, dated 29 August 2005
* A DA Form 2173 (Statement of Medical Examination and Duty Status)
* Department of Defense (DOD) Physical Disability Board of Review (PDBR) decision
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Orders 058-809 (Retired Reserve orders)
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings)
* DA Form 3947 (Medical Evaluation Board (MEB) Proceedings)





CONSIDERATION OF EVIDENCE:

1.  Having had prior service in the U.S. Army Reserve and Regular Army, the applicant enlisted in the Army National Guard (ARNG) on 10 February 2003 and he held military occupational specialty 88M (Motor Transport Operator). 

2.  He was ordered to active duty on 18 December 2003 in support of contingency operations.  He appears to have been assigned to the 1171st Transportation Company.

3.  His records contain a DA Form 2173, dated 18 April 2005, that shows in April 2004, while wearing his rucksack, he slipped and fell off a 5-ton truck.  He landed on his right shoulder.  He was examined in an outpatient status at the troop medical clinic, Fort Stewart, GA.  He later entered the Army physical disability evaluation system (PDES).

4.  On 21 July 2005, an MEB convened and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed as having the medically-unacceptable condition of chronic right shoulder impingement syndrome with mild arthritis of the right acromioclavicular joint, pain moderate and constant.  He also had two other conditions that met retention standards - pes planus and hearing loss.  The MEB recommended referral to a PEB.  He agreed with the MEB's findings and recommendation.

5.  On 3 August 2005, an informal PEB convened and found the applicant's condition prevented him from performing the duties required of his grade and military specialty and determined he was physically unfit due to right shoulder pain secondary to impingement syndrome, not requiring daily narcotics.  The PEB rated him at 10 percent.  The PEB also considered his other medical conditions as listed on the MEB; however, these conditions met retention standards and were not found to be unfitting and therefore they were not rated.  The PEB recommended the applicant's separation with entitlement to severance pay.  He concurred and waived his right to a formal hearing.

6.  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 injury or disease received ILOD as a direct result of armed conflict or caused by an instrumentality of war and incurred ILOD during a period of war as defined by law.

	b.  Item 10b – 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 (USC), section 104.

7.  On 29 August 2005, Headquarters, Fort Stewart and Hunter Army Air Field, Fort Stewart, GA, published Orders 241-0001 ordering the applicant's discharge from active duty effective 30 August 2005, by reason of physical disability.  The orders stated: "Disability is based on injury or disease received ILOD as a direct result of Armed Conflict or cause by an instrumentality of war and incurred ILOD during a war period as defined by law: No." 

8.  On 30 August 2005, the applicant was honorably discharged from active duty in accordance with paragraph 4-24B(3) of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) by reason of disability.  Item 26 (Separation Code) of his DD Form 214 shows the entry "JFL."

9.  On 15 March 2013, the DOD PDRB considered his case and reviewed his disability rating.  Based on that review, the PDRB determined his separation disability rating was accurate.  

10.  An advisory opinion was obtained from the U.S. Army Physical Disability Agency on 8 March 2013 in the processing of this case.  The advisory official recommended no change to the applicant's PEB findings or final order separating him.  This official stated:  

	a.  The applicant requests that his disability discharge orders be changed to indicate that his injury was incurred ILOD by an instrumentality of war.  It is unclear if the applicant simply wants to have the orders reflect that his condition was incurred ILOD or if he is requesting some sort of combat relationship to his incurred disability.  His 2005 MEB narrative summary indicated that his injury was incurred when he fell off a truck preparing for training.  His DA Form 2173, LOD findings, (included in the MEB case file) indicated the same thing. 

	b.  On 3 August 2005, an informal PEB found the applicant unfit due to right shoulder pain 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 ILOD it was compensable and he was authorized separation with severance pay.  On 5 August 2005, after being counseled concerning his rights, the applicant concurred with the PEB findings and waived his right to a formal hearing.

	c.  On 29 August 2005, orders 241-0001 were issued authorizing the applicant's separation from the military with disability compensation for an ILOD disability.  Instruction (d) simply indicates the disability was not incurred ILOD as a direct result of armed combat or an instrumentality of war.  A reading of the entire sentence clearly reveals that it does not 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 Department of the Army order found in Army Regulation 600-8-105 (Military Orders).  It does not mean that the applicant's condition was not ILOD.  There is no evidence that the condition was incurred as a direct result of armed combat or by an instrumentality of war.  The applicant has provided no evidence of any error in the PEB finding.

11.  On 19 March 2013, the applicant submitted a rebuttal wherein he stated that his shoulder injury was caused by an instrumentality of war.  While training on a night live fire combat confidence course, he and his squad were reacting to an enemy ambush during the live fire exercise.  While dismounting, he tripped over a cargo strap and landed on his shoulder.  The DA Form 2173 paraphrased the event that occurred.   

12.  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 ILOD during a period of war.  A determination that a disability was caused by an instrumentality of war and incurred ILOD 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.  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, USC, section 3501).  One of those situations is when the disability is unfitting, was caused by an instrumentality of war, and was incurred ILOD 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, USC, 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, USC, section 104. 

13.  Section II of the Glossary in Army Regulation 635-40 defines:

	a.  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.

	b.  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."

	c.  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.


14.  Title 26 USC, 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.

ISCUSSION AND CONCLUSIONS:

1.  The applicant injured his shoulder when he slipped and fell off a 5-ton truck in April 2004.  This injury led to his entry into the PDES.  He was considered by an MEB that referred him to a PEB.  The PEB rated him 10% disabled and recommended his separation with entitlement to severance pay.  He concurred. 

2.  The applicant does not meet the criteria to have this condition listed as combat-related.  Conditions simulating war are those circumstances of training so simulating conditions of war that a special personal risk attends the situation. The mere fact that he fell from a 5-ton truck does not equate with "conditions simulating war."  He could have fallen off any other large truck and sustained a similar injury.  The fact that his condition occurred ILOD in a time of war during training is not sufficient to change item 10c of his PEB or the resultant separation orders. There is no error or injustice in this case.  

3.  In view of the circumstances in this case, there is insufficient evidence to grant him the 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)                                         AR20130001878



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ABCMR Record of Proceedings (cont)                                         AR20130001878



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