IN THE CASE OF:	 

		BOARD DATE:	     5 February 2014

		DOCKET NUMBER:  AR20130004657 


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 record to show:

* all updates directed as a result of an approved recommendation of the Physical Disability Board of Review (PDBR)
* all awards he is authorized
* the appropriate entries on his DA Form 199 (Physical Evaluation Board (PEB) Proceedings) to indicate he was retired due to a combat-related disability incurred in the line of duty (LOD)

2.  If relief is granted, he requests, in effect, that the Defense Finance and Accounting Service (DFAS) be directed to audit his pay records to determine if any adjustments should be made.

3.  He states:

* his record has not been updated per the order of the Deputy Assistant Secretary of the Army (Review Boards) (DASA(RB))
* he went before a medical board for injuries incurred in the LOD as the result of a High Mobility Multipurpose Wheeled Vehicle (HMMWV) accident in 1991
* by definition, his injuries were combat-related as an HMMWV is an instrumentality of war and his DA Form 199 should reflect this in items 10a and 10c
* he is a [Title 10, U.S. Code,] Chapter 61 retiree due to service-connected/combat-related injuries
* the only action taken subsequent to the DASA(RB) order has been to change his current organization to reflect the Permanent Disability Retired List (PDRL)

4.  He provides:

* letters from the Department of Veterans Affairs (VA)
* VA Rating Decision
* self-authored statement he submitted to the DOD PDBR
* PDBR Record of Proceedings
* memorandum, subject:  DOD PDBR Recommendation for [Applicant]
* letter from the DASA(RB) to a Member of Congress
* memorandum, subject:  [Current Organization] Change
* letter from DFAS
* e-mail

CONSIDERATION OF EVIDENCE:

1.  On 2 May 2012, the DASA(RB) approved the recommendation of the PDBR that the applicant's separation should be re-characterized as permanent disability retirement with a combined disability rating of 60 percent (%).  The DASA(RB) directed, in part:

	a.  correction of the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was separated by reason of permanent disability retirement effective the date of his original medical separation for disability with severance pay;

	b.  issuance of orders showing the applicant was retired with permanent disability effective the date of the original medical separation with severance pay; and

	c.  adjustment of his pay and allowances accordingly, to include accounting for recoupment of severance pay and payment of permanent retired pay at 60% effective the date of his original medical separation for disability with severance pay.  

2.  On 14 May 2012, the Military Personnel Division, Headquarters, U.S. Army North (Fifth Army), Fort Sam Houston, TX, issued orders accomplishing the applicable portion of the DASA(RB)'s directive.  On 27 March 2013, a DD Form 215 (Correction to DD Form 214) was issued correcting his DD Form 214 as directed.  He provides a letter from DFAS indicating that agency has taken appropriate action to recoup his severance pay and adjust his pay and allowances as directed.  The updates directed as a result of the approved PDBR recommendation have been accomplished.  Therefore, this matter will not be discussed further in this Record of Proceedings.

3.  On 25 July 1990, he enlisted in the Regular Army.  After completing initial entry training, he was awarded military occupational specialty 91W (Health Care Specialist).  

4.  His DA Form 2-1 (Personnel Qualification Record) shows in

* item 5 (Oversea Service), in part, he served in Korea from 7 January 1991 through 6 January 1992
* item 9 (Awards, Decorations and Campaigns), in part, he was awarded the Army Good Conduct Medal (AGCM) (4th Award) in 2002.

5.  A review of his record shows he was awarded the Army Commendation Medal (ARCOM) by permanent orders on three occasions for:

* service from 8 January 1992 to 3 April 1995 
* achievement for an unspecified period in 1997
* service from 21 May 1998 to 1 March 2003

6.  A memorandum, subject:  LOD Determination on [Applicant], dated 31 October 2002, shows the Chief, Mortuary Affairs and Casualty Support Division, Total Army Personnel Command (now called the U.S. Army Human Resources Command (HRC)), informed the Commander, U.S. Army Physical Disability Agency (USAPDA) that a presumptive finding of in LOD had been made in the applicant's case for his right hand and wrist and neck injury and concussion.  The memorandum states he sustained injuries in an HMMWV accident on 13 May 1991 at Camp Casey, South Korea.

7.  A DA Form 199 shows a PEB convened on 20 February 2003 to consider his condition as described in the records.  The PEB found he was unfit based on the following diagnoses with the ratings shown:

* chronic neck, back, knee, tibial hip, and shoulder pain rated as moderate and constant – 20%
* obstructive sleep apnea with good response to continuous positive airway pressure (CPAP) – 0%

	a.  Item 10A shows the PEB made the recommended finding that "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 incurring in LOD during a period of war as defined by law."

	b.  Item 10B shows the PEB made the recommended finding that "the disability did not result from a combat related injury as defined in 26 USC 104 [Title 26, U.S. Code, Section 104]."

8.  On 24 February 2003, he concurred with the PEB findings and recommendations and waived a formal hearing of his case.  The PEB findings and recommendations were approved for the Secretary of the Army on 25 February 2003.  

9.  On 18 March 2003, Headquarters, U.S. Army Medical Department Center and School and Fort Sam Houston, Fort Sam Houston, TX, issued Orders 077-0100 assigning the applicant to the U.S. Army Transition Point, Fort Sam Houston, TX, with a reporting date of 20 April 2003.  The orders show he was to be discharged on the same date with disability severance pay.  The "Additional instructions" section of the orders shows the following entries:

* "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 the LOD during a war period as defined by law:  No."  
* "Disability resulted from a combat related injury as defined in 26 USC 104:  No."

10.  On 20 April 2003, he was honorably discharged for disability with severance pay in the rank/pay grade of sergeant first class/E-7.  He completed 12 years, 8 months, and 26 days of net active service this period.  His DD Form 214 shows he was awarded or authorized the:

* Army Lapel Button
* ARCOM (2nd Award)
* Army Achievement Medal (3rd Award)
* Army Superior Unit Award
* AGCM (3rd Award)
* National Defense Service Medal (2nd Award)
* Armed Forces Service Medal
* Noncommissioned Officer Professional Development Ribbon with numeral 3
* Army Service Ribbon
* Overseas Service Ribbon (2nd Award)
* NATO Medal
* Expert Field Medical Badge
11.  On or about 12 August 2011, the applicant applied to the PDBR to request a review of his disability rating.  On 16 April 2012, the PDBR convened to review his case.  The PDBR recommended modification of the approved PEB findings and recommendations to show the applicant had a combined 60% disability rating based on the following conditions:

* obstructive sleep apnea with CPAP (50%)
* chronic back pain (10%)
* chronic right shoulder pain (10%)

The PDBR found that chronic left shoulder, neck, knee, tibia, and hip pain were not unfitting.  The PDBR did not comment on the matter of whether his disability was based on injury or disease received in the LOD as a direct result of armed conflict or instrumentality of war during a war period as defined by law or whether his disability resulted from a combat-related injury as defined in 26 USC 104. 

12.  On 2 May 2012, the DASA(RB) approved the PDBR recommendation and directed the necessary actions to amend his record to show he was retired for permanent disability.

13.  On 14 May 2012, the Military Personnel Division, Headquarters, U.S. Army North (Fifth Army), Fort Sam Houston, TX, revoked his discharge orders and issued Orders 135-0103 retiring him effective 20 April 2003 and placing him on the Retired list the following day.  The orders include the following statements:

* "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 the LOD during a war period as defined by law:  No."  
* "Disability resulted from a combat related injury as defined in 26 USC 104:  No."

14.  On 18 September 2012, the Combat-Related Special Compensation (CRSC) Branch, HRC, notified him his CRSC claim had been approved.  He was awarded CRSC for several conditions rated by the VA including cervical spine strain and right shoulder tendonitis.  The notification letter shows the basis for the award of CRSC was documentation verifying his disability as combat-related due to a vehicle accident in South Korea.

15.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System 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 in paragraph 4-19j:
	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 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.

	b.  The periods of war as defined in Title 38, USC, Sections 101 and 301 are:

		(1) World War II – the period beginning 7 December 1941 and ending 31 December 1946 and any period of continuous service performed after 
31 December 1946 and before 26 July 1947 if such period began before 
1 January 1947; 

		(2) Korea – the period beginning 27 June 1950 and ending 31 January 1955; and

		(3) Vietnam – the period beginning 5 August 1964 and ending 7 May 1975.

	c.  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 LOD 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 LOD during a period of war as defined by law.

16.  Army Regulation 635-40 states in paragraph 4-19k:

	a.  One of two conditions listed below must be satisfied for military disability retired or severance pay to be exempt from Federal taxation under 26 USC 104:

		(1) On 24 September 1975, the individual was a member of the armed forces of any country, the National Oceanic and Atmospheric Administration (NOAA and formerly the Coast and Geodetic Survey), the U.S. Public Health Service (USPHS), or was under binding written agreement to become such a member. 

		(2) The disability pay is awarded by reason of a combat-related injury. Within the meaning of 26 USC 104, combat-related injuries cover those disabilities attributable to the special dangers associated with armed conflict or the preparation or training for armed conflict.

	b.  The injury resulting from an instrumentality of war need not have occurred during a period of war as defined by law.

17.  Army Regulation 635-40 defines "instrumentality of war" 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.

18.  Title 26, USC, 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.

19.  Title 10, USC, Section 1413a provides the statutory authority for CRSC.

	a.  It defines combat-related disability as a disability that is compensable under the laws administered by the Secretary of Veterans Affairs and that is attributable to an injury for which the member was awarded the Purple Heart; or was incurred (as determined under criteria prescribed by the Secretary of Defense):

		(1)  as a direct result of armed conflict;

		(2)  while engaged in hazardous service;

		(3)  in the performance of duty under conditions simulating war; or

		(4)  through an instrumentality of war.

20.  A document published by the USAPDA, entitled Disabilities Resulting from:  Armed Conflict, Instrumentality of War, Conditions Simulating War, and Disabilities Incurred in a Combat Zone, dated 24 October 2011, provides guidance to PEB's for making determinations on the entries items 10a and 10c on the DA Form 199.  

	a.  The document lists the HMMWV as a unique military vehicle considered to be an instrumentality of war.  It also lists injuries sustained in a routine auto accident in a uniquely military vehicle as an example of injuries sustained by an instrumentality of war.

	b.  The document also lists an additional period of war that is not listed in Army Regulation 635-40.  It states this period is 2 August 1990 to an undetermined date.  The period was established by Executive Order 12711 on 2 August 1990, and it has been extended each year by the President.  

	c.  The document also states that if more than one disability is listed on the DA Form 199, the designations in 10a and 10c do not automatically apply to all listed unfitting disabilities.  Unless the written rationale (on the DA Form 199) concerning the injury or disease is one that clearly describes a particular type of "combat related" classification, the PEB should indicate, after each unfitting condition, whether the condition was "combat related" and, if so, what particular combat-related conditions caused it.

21.  CRSC program guidance available on the HRC website states a combat-related disability is a disability with an assigned medical diagnosis code from the VA Schedule for Rating Disabilities that was incurred:

	a.  as a direct result of armed conflict;

	b.  while engaged in hazardous service;

	c.  in the performance of duty under conditions simulating war; or

	d.  through an instrumentality of war.

22.  Attachment 1-1 to the CRSC program guidance states the following criteria apply when making combat-related determinations for disabilities incurred through an instrumentality of war: 

Incurrence during an actual period of war is not required.  However, there must be a direct causal relationship between the instrumentality of war and the disability.  The disability must be incurred incident to a hazard or risk of the service.

23.  Army Regulation 600-8-22 (Military Awards) states the Korea Defense Service Medal is authorized for award to members of the Armed Forces of the United States who have served on active duty in support of the defense of the Republic of Korea.  The period of eligibility is 28 July 1954 to a date to be determined by the Secretary of Defense.

DISCUSSION AND CONCLUSIONS:

1.  A review of the applicant's record shows he was awarded the AGCM (4th Award) and the ARCOM (3rd Award).  It would be appropriate to amend his DD Form 214 to show these awards.

2.  He served in Korea during the period of eligibility for the KDSM.  He is entitled to correction of his DD Form 214 to show this award.

3.  The available evidence indicates the PEB made an error in items 10a and 10c on his DA Form 199.  His original disability rating was for chronic neck, back, knee, tibial hip, and shoulder pain.  The PEB had before it a determination from HRC stating a presumptive finding of in LOD had been made for the applicant's neck injury (and other injuries that were not rated by the PEB).  HRC noted that he sustained the injuries in an HMMWV accident in 1991.  The version of Army Regulation 635-40 in effect when the PEB was conducted provided criteria for making a combat-related determination for injuries caused by an instrumentality of war that were incurred during a period of war; however, the regulation did not list the period beginning 2 August 1990 as a period of war.  

4.  Based solely on the regulation, the PEB would have logically determined that the applicant's disability was not 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 the LOD during a war period as defined by law.  It is unclear why the PEB determined his disability did not result from a combat-related injury as defined in 26 USC 104.

5.  The approved PDBR decision superseded much of the information on his DA Form 199; however, the decision, taken together with the CRSC determination, emphasizes that two of the applicant's three disabling conditions were related to an injury received in the LOD caused by an instrumentality of war.  Under current USAPDA guidance, which includes an updated list of periods of war, this is cause to identify his chronic neck and back pain, for which he also receives CRSC, as combat-related resulting from an HMMWV accident and to show:

	a.  his 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 incurring in LOD during a period of war as defined by law and 

	b.  the disability resulted from a combat-related injury as defined in 26 USC 104.

6.  As a matter of equity, it would be appropriate to amend the DA Form 199 to reflect the conditions that existed subsequent to the PDBR and CRSC decisions by adding the following statements:

On 2 May 2012, the Deputy Assistant Secretary of the Army (Review Boards) approved a Physical Disability Board of Review recommendation to recharacterize the individual's separation as permanent disability retirement with a combined disability rating of 60% based on the following conditions:

* obstructive sleep apnea with CPAP, VA Code 6847, 50%
* chronic back pain, VA Code 5292, 10% (combat-related, instrumentality of war, HMMWV accident, Korea, 1991)
* chronic right shoulder pain, VA Code 5024-5003, 10% (combat-related, instrumentality of war, HMMWV accident, Korea, 1991)

Item 10a is amended to read, "The Soldier's retirement is 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 line of duty during a period of war as defined by law."

Item 10c is amended to read, "The disability resulted from a combat-related injury as defined in 26 USC 104."


7.  As a related matter, the orders assigning him to the PDRL should be amended to show the following statements:

* "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 the LOD during a war period as defined by law:  Yes."  
* "Disability resulted from a combat related injury as defined in 26 USC 104:  Yes."

8.  Once these corrections to his record have been accomplished, it would be appropriate for DFAS to audit his pay records to determine if he is entitled to any adjustments.  

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 DD Form 214 to:

		(1) delete the ARCOM (2nd Award) and AGCM (3rd Award) and

		(2) add the:

* ARCOM (3rd Award)
* AGCM (4th Award)
* KDSM

	b.  amending his DA Form 199 to add the following statement:

On 2 May 2012, the Deputy Assistant Secretary of the Army (Review Boards) approved a Physical Disability Board of Review recommendation to recharacterize the individual's separation as permanent disability retirement with a combined disability rating of 60% based on the following conditions:

* obstructive sleep apnea with CPAP, VA Code 6847, 50%
* chronic back pain, VA Code 5292, 10% (combat-related, instrumentality of war, HMMWV accident, Korea, 1991)
* chronic right shoulder pain, VA Code 5024-5003, 10% (combat-related, instrumentality of war, HMMWV accident, Korea, 1991)

Item 10a is amended to read, "The Soldier's retirement is 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 line of duty during a period of war as defined by law."

Item 10c is amended to read, "The disability resulted from a combat-related injury as defined in 26 USC 104."

	c.  amending Orders 135-0103 to show 

* "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 the LOD during a war period as defined by law:  Yes."  
* "Disability resulted from a combat related injury as defined in 26 USC 104:  Yes."

	d.  directing that DFAS audit the applicant's pay records based on these corrections. 




      ___________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)                                         AR20130004657





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ABCMR Record of Proceedings (cont)                                         AR20130004657



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