BOARD DATE:	  12 February 2014

		DOCKET NUMBER:  AR20130008493 


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 her removal from the Temporary Disability Retired List (TDRL) orders to show:

* her disability was incurred in a combat zone or combat-related 
* her address was Fort Wainwright, Alaska not Fort Hood, TX  

2.  She further requests that she be paid an enlistment bonus in the amount of $26,000.00.        

3.  The applicant states:

	a.  on 26 March 2010, the Physical Evaluation Board (PEB) determined her injury did not occur in a combat zone.

	b.  after passing physical fitness tests she deployed to Iraq because she was fit for deployment.  A service medical record, dated 8 October 2008, states her injury is a new injury.  A sprain in 2007 has nothing to do with the new injury.  Her injury did occur in a combat zone.

	c.  after she was evacuated from Iraq she was stationed at Fort Wainwright, Alaska from 4 November 2008 to 24 June 2010.

	d.  from the time she began receiving medical attention in Kuwait until after surgery almost 2 years later she was on strong medication.

	e.  the military indicates her injuries are not combat-related.  However, she was medically retired by the Army due to her condition, her pay went down drastically, and her credit was destroyed.  

   f.  her household goods were sent from Fort Hood, TX to Miami, FL, but she received no travel pay because her orders were not amended.  Her bonus was not paid right either.

	g.  she is still suffering financially and mentally due to her medical conditions sustained in a combat zone in Iraq and she needs help.      

4.  The applicant provides:

* Retirement orders, dated 19 December 2011
* Service medical records
* Letter, dated 18 April 2013, from a Member of Congress 

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 17 January 2007 for a period of 6 years and 18 weeks.  Her enlistment contract shows she enlisted for a bonus in the amount of $26,000.00.  Item 4 (Statement and Conditions which apply to ALL Incentive Programs Above) of her contract states "I further acknowledge and understand that my incentive is subject to the following condition:  I must stay qualified in my incentive MOS (military occupational specialty (MOS)) for the duration of my initial enlistment, unless otherwise directed by Headquarters, Department of the Army."    

2.  She completed her training and was awarded MOS 88M (motor transport operator).  She arrived in Kuwait on 20 August 2008.

3.  She provides a service medical record, dated 6 October 2008, which shows she was diagnosed with a right knee MCL (medial collateral ligament) sprain.  This record also states "R (right) knee arthroscopy Nov (November) 2007, now new injury, medial knee pain & instability."

4.  She provides a Patient Movement Record, dated 24 October 2008, which shows she injured her knee on 17 September 2008 while running (athletics) in Kuwait. 

5.  She departed Kuwait on 4 November 2008.


6.  Her Medical Evaluation Board is not available for review.  On 19 March 2010, a PEB found her physically unfit due to:

	a.  right knee instability residuals of tibial plateau fracture.  Unfitting for an 88M as she is unable to drive a vehicle.  Unstable as condition may change with response to treatments for complex regional pain syndrome (CRPS).  Not combat-related.  Did not occur in an area of combat.

	b.  right knee loss of motion with osteoarthritis, residual of tibial plateau fracture.  Unfitting for an 88M as she is unable to drive a vehicle.  Unstable as condition may change with response to treatments for CRPS.  Not combat-related.  Did not occur in an area of combat.

	c.  right calf neural abnormality associated with complex regional pain syndrome of the right leg.  Unfitting for an 88M, motor transport operator, as she is unable to mount/dismount vehicles or lift greater than 30 pounds.  Unstable as the course of complex regional pain syndrome is variable with improvement with recent treatments.  Non-combat related.  Not in area of combat.

	d.  right thigh neural abnormality associated with complex regional pain syndrome of the right leg.  Unfitting for an 88M, motor transport operator, as she is unable to mount/dismount vehicles or lift greater than 30 pounds.  Unstable as the course of complex regional pain syndrome is variable with improvement with recent treatments.  Non-combat related.  Not in area of combat.     

7.  Her DA Form 199 (PEB Proceedings) states "Keep the US Army Physical Disability Agency (USAPDA) informed of your current mailing address.  Failure to do so will result in a termination of your retired pay."

8.  The PEB recommended a combined rating of 40% and that she be placed on the TDRL with reexamination during October 2011.  On 23 March 2010, the applicant concurred with the findings and recommendations and waiver a formal hearing.

9.  On 26 March 2010, the USAPDA approved the PEB's findings.

10.  On 24 June 2010, she was honorably retired and placed on the TDRL the following day.  She completed 3 years, 5 months, and 8 days of creditable active service.




11.  Item 18 (Remarks) of her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the entry "ENLISTMENT BONUS PAID: $26,000.00, 20070701 (1 July 2007)."  A DD Form 215 (Correction to DD Form 214), dated 26 May 2011, amended item 18 of her DD Form 214 by deleting the entry "$26,000.00" and adding the entry "$19,600.00."     

12.  Orders 353-10, USAPDA, dated 19 December 2011, show an address in Fort Hood, TX.  These orders removed the applicant from the TDRL and permanently retired her on 19 December 2011 and state:

	a.  "Disability is based on injury or disease received in LOD (Line of Duty) as a direct Result of Armed Conflict or caused by an instrumentality of war period as defined by law:  Not Applicable."

	b.  "Disability resulted from a combat related injury as defined in 26 USC 104:  Not Applicable."

13.  Defense Finance and Accounting Service (DFAS) records show she was paid an initial installment of $10,000.00 in 2007 for her enlistment bonus and installments of $3,200.00 each in 2008, 2009, and 2010 for a total of $19,600.00.  No further payments were authorized upon or after her discharge.

14.  Title 26, U.S. Code, section 104, states 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 under conditions simulating war, or which is caused by an instrumentality of war.
 
DISCUSSION AND CONCLUSIONS:

1.  The applicant requests her removal from the TDRL orders be corrected to show her disability was incurred in a combat zone or combat-related.

2.  Medical evidence provided by the applicant shows she injured her right knee while running (athletics) in Kuwait, a combat zone.  There is no evidence to show this injury was combat-related.

3.  The PEB determined her disabilities were not combat-related and did not occur in an area of combat.  She concurred with the PEB findings on 23 March 2010.   



4.  There is no evidence in the available records and she has not provided sufficient evidence which shows her disabilities were incurred as a direct result of armed conflict, while engaged in extra hazardous service under conditions simulating war, or was caused by an instrumentality of war.  Therefore, there is insufficient evidence on which to amend her removal from the TDRL orders to show her disability was incurred in a combat zone or combat-related.

5.  Her request to amend her address from Texas to Alaska on her 2011 removal from the TDRL orders was noted.  However, by her own admission, she states she was stationed at Fort Wainwright, Alaska from 4 November 2008 to 24 June 2010.  She was removed from the TDRL and permanently retired in December 2011.  Since it was her responsibility to keep the USAPDA informed of her current mailing address, there is insufficient evidence on which to base amending her address on these orders.

6.  She contends she was not paid the entire amount ($26,000.00) of her enlistment bonus.  The evidence shows she was paid $19,600.00 of the original amount of her enlistment bonus.  Although she enlisted for a bonus in the amount of $26,000.000, she also enlisted for a period of 6 years and 18 months.  She was discharged after completing 3 years, 5 months, and 8 days of creditable active service.  It appears her bonus was prorated because she failed to stay qualified in her incentive MOS for the duration of her enlistment per her enlistment contract.  Although it is acknowledged that her disability separation was through no fault of her own, there is insufficient evidence on which to base granting her request to be paid the entire amount of the enlistment bonus.

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)                                         AR20130008493



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ABCMR Record of Proceedings (cont)                                         AR20130008493



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