IN THE CASE OF:	  

		BOARD DATE:	  21 November 2013

		DOCKET NUMBER:  AR20130003546 


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 DD Form 214 (Certificate or Release or Discharge from Active Duty) to show his narrative reason for separation as "Disability, Severance Pay, Combat Related."

2.  The applicant states he believes his disability is combat related.

3.  The applicant provides:

* DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 29 May 2009
* DD Form 214
* psychiatry clinic outpatient follow-up record, dated 2 January 2013
* Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim), dated 19 February 2013

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code (USC), 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 enlisted in the Regular Army on 7 June 2006.  He completed training and was awarded military occupational specialty 63B (Wheeled Vehicle Mechanic).  The highest rank/grade he attained while serving on active duty was private first class/E-3.

3.  His records contain a computer-generated Standard Form 502 (Medical Evaluation Board (MEB) Narrative Summary (NARSUM)) dictated on 15 March 2009 which shows:

	a.  His primary diagnosis was bilateral chronic hip pain.  The onset of this condition occurred in 2006 while he was in advanced individual training (AIT).  The NARSUM stated this condition did not meet retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-41e.

	b.  His additional diagnoses included an injury to his left ankle with subsequent left ankle instability which was corrected with surgery; a nasal septal deformity for which he underwent a septoplasty and turbinoplasty with no post-operative complications reported; and recurrent knee pain, which after extensive examinations was determined to be "overuse syndrome."

4.  His records show he underwent an MEB on 24 April 2009.

	a.  The MEB considered his bilateral chronic hip pain in accordance with Army Regulation 40-501, paragraph 3-41e.  The MEB determined this condition was incurred in 2006 while he was entitled to base pay and it did not exist prior to service.

	b.  The MEB considered his additional diagnoses, which did not cause him to fall below retention standards.  These conditions included left ankle instability which was corrected with surgery, a nasal septal deformity and possible mucous retention cyst in his left sphenoid sinus, and recurrent knee pain.

	c.  The MEB referred him to a PEB and he agreed with the MEB's findings and recommendations.

5.  His records show he underwent a PEB on 26 May 2009.  The PEB considered his chronic bilateral hip pain evaluated as degenerative arthritis and rated him as 10-percent disabled for his right hip and 10-percent disabled for his left hip.

	a.  The PEB determined the other conditions listed on his MEB (left ankle instability which was corrected with surgery, a nasal septal deformity and possible mucous retention cyst in his left sphenoid sinus, and recurrent knee pain) met retention standards.  Further consideration of these conditions by the PEB found the conditions to be not unfitting and, therefore, not ratable.

	b.  The PEB found him physically unfit, recommended a combined disability rating of 20 percent, and recommended his separation with severance pay.

	c.  The PEB also stated that his condition was not based on disability from 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 incurring in the LOD during a period of war as defined by law.  Additionally, the PEB stated the disability did not result from a combat-related injury and the disability was not incurred in a combat zone or incurred during the performance of duty in combat-related operations.

	d.  He concurred with the PEB's findings and recommendations and waived his right to a formal hearing of his case.

6.  He was honorably discharged on 23 August 2009 by reason of "Disability, Severance Pay, Non-Combat Related."  His DD Form 214 shows he completed 3 years, 2 months, and 17 days of net active service, of which 3 months and 10 days were credited as foreign service.

7.  He provided a psychiatry clinic outpatient follow-up record, dated 2 January 2013, which shows he was seen for an Operation Enduring Freedom (OEF)/Operation Iraqi Freedom (OIF) traumatic brain injury (TBI) polytrauma consult.  This medical document states the applicant reported he had been on a smoke break from moving sandbags.  He said he heard an explosion and saw a black cloud of smoke.  At the time of the explosion he went from a seated position to the ground but was not sure if he had lost consciousness.  He felt dazed after the explosion.  His superior officer informed him that this was a controlled detonation, but the applicant stated that he did not hear the routine warning signals.  After the incident the applicant felt sleepy.  The examining doctor diagnosed him as having a TBI.

8.  He provided a VA Form 21-4138, dated 19 February 2013, wherein he stated he was in Baghdad, Iraq.  He was taking a smoke break when there was an explosion near him.  The explosion caused him to go from a seated position on a bench to laying flat on his face on a wooded deck.  He looked up and saw black smoke and noted that the explosion had occurred approximately 30 meters away.  After the explosion he was extremely disoriented and had ringing in his ears.  He did not believe this was a controlled detonation because there were no warning sounds preceding the detonation.  He believed it to be a mortar strike.  After the detonation he left the smoking area and went to bed.  He slept for an undetermined amount of time.  He does not remember how he got to his sleeping quarters.  At some point, perhaps the next day, his supervisor told him that he needed to report to work on time; however, he did not realize he had been late for duty.  After realizing what had occurred, he reported the incident through his chain of command.

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the 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 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 line of duty (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.

	a.  Paragraph 4-19j (Armed Conflict – Instrumentality of War) states 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 in the LOD during a period of war as defined by law.

	b.  Paragraph 4-19k states disability pay may be 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 states 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; rappelling; 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.

10.  The Army Regulation 635-40 glossary explains abbreviations and special terms used.

	a.  A combat-related injury is defined 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 are defined 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.  An instrumentality of war is defined as 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.

11.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's medical records do not contain any evidence to show he suffered a TBI while serving in Iraq as a result of an explosion.  His records do not contain an LOD determination for a TBI.  The evidence documenting this incident was provided by the applicant and was the result of medical examinations that occurred well after his discharge.  Additionally, he did not mention a head injury or a TBI to the medical officials who examined him prior to his MEB and there is no mention of a TBI in his MEB NARSUM, MEB proceedings, or PEB proceedings.

2.  He appears to have suffered a hip injury (right and left) in 2006 during AIT.  This injury along with several others which were not disqualifying (left ankle instability which was corrected with surgery, a nasal septal deformity and possible mucous retention cyst in his left sphenoid sinus, and recurrent knee pain) led to his entry into the PDES.  He was considered by an MEB that referred him to a PEB.  The PEB rated him as 20-percent disabled and recommended his separation with entitlement to severance pay.  He concurred.

3.  The applicant does not meet the criteria to have this condition listed as combat related.  Conditions simulating war are those circumstances of training so similar to the conditions of war that a special personal risk attends the situation.  The onset of his condition occurred during AIT, not in a time of war.  Additionally, the evidence he provided showing he suffered a TBI almost 4 years after his discharge is not sufficient to change his narrative reason for separation.  There is no error or injustice in this case.  In view of the foregoing, there is insufficient evidence to grant 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 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)                                         AR20130003546



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ABCMR Record of Proceedings (cont)                                         AR20130003546



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