BOARD DATE:	  17 April 2014

		DOCKET NUMBER:  AR20130011774 


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 DA Form 199 (Physical Evaluation Board (PEB) Proceedings) to reflect his disability of post-traumatic stress disorder (PTSD) as having occurred as a direct result of an instrumentality of war and/or while engaged in extra hazardous service as defined in Title 26, U.S. Code, section 104.

2.  The applicant states he was in Kuwait on 12 March 2001 with the 707th Explosive Ordnance Company (EOD) when one day friendly aircraft dropped a bomb on an observation post at the Uderi Bombing Range, killing five men, including three members of his unit.  He was involved in the cleanup and he witnessed the grizzly scene created by this training accident that simulated war.  His PTSD stressors were the direct result of a simulated training event.  He witnessed the blood, guts, and human remains.  He was assigned to a team which deployed to the site of the bombing and he was heavily involved in the clean-up of the site on two different occasions: the night of the bombing and the next day.  On the night of the bombing, he was ordered with two other members to be with the bodies of at least two of the dead for approximately 12 hours.  Despite statements from others who were not involved in the accident, they cleared up bodies and watched out for explosives.  

3.  The applicant provides:

* DA Form 3349 (Physical Profile)
* Statement from a social services worker
* Statement from his former commander
* DA Form 3947 (Medical Evaluation Board (MEB) Proceedings)
* DA Form 199
* Narrative Summary (NARSUM)
* Addendum to MEB NARSUM
* DD Form 214 (Certificate of Release or Discharge from active Duty) 
* DD Form 215 (Correction to DD Form 214)

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, 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 5 October 1994 and held military occupational specialty (MOS) 55D (Explosive Ordnance Disposal (EOD) Specialist).  He reenlisted on 27 May 1998.

3.  He served in a variety of stateside and overseas assignments, including Kuwait from 29 November 2000 to 1 June 2001, and he attained the rank/grade of staff sergeant (SSG)/E-6.

4.  His NARSUM, dictated on 25 March 2002, shows he reported being in his usual state of wellbeing until 12 March 2001 when he was involved in a training accident which occurred at Udari Training Range in Kuwait.  He was performing his duties as an EOD specialist when an F-18 aircraft accidentally dropped bombs on his crew.  Although he was physically uninjured, five others were killed in the accident.  It was his responsibility to secure the area, verify that there was no unexploded ordnance, and collect the body parts of his friends.  Due to the delay in the arrival of individuals from Graves Registration, he was required to remain with the bodies all night and to collect the body parts of his buddies.  He claimed that "they gave me the rake and had me rake up my buddies guts."  He has since experienced flashbacks, intrusive recollections, and depressive symptoms that haunted him.  His diagnosis was:

* Axis I: PTSD, chronic with marked impairment of social and occupational functioning 
* Axis II: Deferred
* Axis III: Tension headaches, asthma, tachycardia, and degenerative disc disease
* Axis IV: Current psychological stressors include military duty, difficulty with peers, and financial difficulties secondary to PTSD
* Axis V: Global Assessment of Functioning score is 60

5.  On 11 April 2002, an 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 condition of PTSD, chronic.  The MEB recommended his referral to a PEB.  He was counseled by a PEB Liaison Officer (PEBLO).  He agreed with the MEB's findings and recommendation and indicated he desired to continue serving on active duty. 

6.  On 25 April 2002, the PEB President returned his case to the military treatment facility seeking additional information.  The PEB President stated:

	a.  The NARSUM appeared to have been prepared by someone other than a psychiatrist.  A psychiatrist evaluation or concurrence was required and a supervisory psychiatrist must personally evaluate the case and prepare an independent report.  

	b.  The PEB had investigated the case further by contacting the commander of the Soldier's former unit initially to determine if the applicant was entitled to have his condition coded as combat-related.  The information the former commander gleaned from the members present at the time of the incident varied substantially from the information reported by the applicant on the NARSUM.  The applicant was not present when the bomb exploded but he was called to clear any unexploded ordnance.  He was not ordered to stand guard but participated in a voluntary vigil with other Soldiers.  He saw the bodies and carnage but he did not participate in the recovery of remains.  Under this criteria he may not even fit the criteria for PTSD.  The variance in details requires independent investigation. 

7.  An Addendum to the NARSUM was dictated on 24 June 2002 by the Chief, Department of Mental Health.  This NARSUM indicated there were perceived inaccuracies in the history of the present illness as it was written in the original NARSUM.  The items in question dealt with whether or not the applicant was ordered to stand guard over the Soldiers who were killed in the incident and whether he participated in the recovery of their remains.  The Chief indicated he had reviewed the full medical board summary as originally written and interviewed members of the applicant's unit who had direct contact with the applicant at the time of the incident.  Both individuals indicated the applicant was not present when the bombs exploded and he was called to clear any unexploded ordnance.  He was not ordered to stand guard but it was an honor and highly sought privilege to do so.  According to the two witnesses, team members were virtually fighting for the honor of standing vigil over the Soldiers and the applicant was included among them.  He did see bodies and the carnage; however, his participation in the recovery of the remains was that of helping to load the caskets on the plane.  He seemed to be affected by the incident the most because one of the dead was a subordinate whom he had previously treated harshly as part of his discipline or motivational technique.   

8.  On 11 July 2002, an informal PEB (IPEB) convened and found the applicant's condition prevented him from performing the duties required of his grade and specialty and determined he was physically unfit due to PTSD.  The PEB rated him under the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) and awarded him a 10 percent (%) disability rating for VASRD code 9411.  Furthermore, the IPEB noted:  

	a.  His PTSD is attributed to a training accident that occurred on 12 March 2001, in Kuwait, in which his group received "friendly fire" bombs said to have killed five of his unit personnel.  He was directly involved in guard operations and he subsequently experienced guilt over his treatment of his troops, sleep disturbance, flashbacks, hypervigilance and marked aversion to his job as an EOD specialist.  

	b.  His functional limitations in maintaining the appropriate level of adaptability caused by the physical impairments recorded above made him medically unfit to perform the duties required of his rank and primary specialty.  

	c.  The IPEB recommended a 10% combined rating and the applicant's separation from active duty with entitlement to severance pay if otherwise qualified.  The applicant was again counseled by the PEBLO about his rights.  He concurred and waived his right to a formal hearing of his case.

9.  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 in the line of duty (LOD) as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty 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 (NOAA) or the U.S. Public Health Service (USPS) 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.

10.  On 25 July 2002, Headquarters, U.S. Army Air Defense Artillery Center, Fort Bliss, TX, published Orders 206-0020 discharging him from active duty on         29 July 2002 by reason of disability.  The orders stated:

* 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
* Disability resulted from a combat-related injury as defined in Title 26, U.S. Code, section 104: No 
* Member of an Armed Force on 24 September 1975: No

11.  He was honorably discharged from active duty on 29 July 2002 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."  He completed a total of 7 years, 9 months, and 25 days of active service.

12.  On 8 January 2013, the DOD Physical Disability Board of Review reviewed his case and recommended a change to the disposition of his case by recommending a disability rating of 50% for his PTSD.  The Board approved this recommendation.  

13.  Accordingly, on 20 May 2013, he was issued a DD Form 215 that changed his disposition as follows: 

* from discharge to retirement
* from Army Regulation 635-40, paragraph 4-24b(3) to paragraph 4-24b(2)
* from Separation Code JFL to SFX
* from disability severance pay discharge to temporary retirement

14.  He provides: 

	a.  Statement, dated 7 January 2002, from a social work services official who states the applicant attended counseling for anger management and that he experienced depression and had symptoms of PTSD. 
	b.  Statement, dated 11 April 2002, from his former commander who commented on the limitations of the applicant's duty performance as a result of his mental issues at the time. 

15.  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 line of duty during a period of war.  A determination that a disability was caused by an instrumentality of war and incurred in the line of duty 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.

16.  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 Line of Duty 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; 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, 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.

17.  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 undoubtedly in Kuwait in March 2001 when the incident happened.  However, the preponderance of the evidence record clearly shows three things: 

* the applicant was not present when the bombs exploded but he was called to clear any unexploded ordnance
* the applicant was not ordered to stand guard over the dead; he considered it an honor and a privilege to stand vigil over the dead
* the applicant did not participate in the recovery of the remains; he helped load caskets on to the plane

2.  He was considered by an MEB that referred him to a PEB.  The PEB recommended a 10% combined rating and the applicant's separation with entitlement to severance pay, if otherwise qualified.  The applicant concurred and waived his right to a formal hearing of his case.  Accordingly, he was discharged.

3.  At the time his initial NARSUM was submitted, it contained inconsistencies and he was not seen by a psychiatrist for the mental issue of PTSD.  When the PEB considered his case, further investigation was not only needed but also required. The further research clearly identified the source of his mental status, which was clearly neither combat nor an instrumentality of war.  As such, when his DD Form 199 was prepared, separation orders were published, and DD Form 214 was processed, they all correctly indicated his injuries did not result from combat or an instrumentality of war.  Even with the change of his discharge to a medical retirement, the facts of the source of his PTSD did not change.

4.  The applicant does not meet the criteria to have this condition listed as combat-related or as a result of an instrumentality of war.  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 was in Kuwait and later brought to the scene of carnage/bombing and helped load caskets to a plane does not equate with "conditions simulating war."  His argument here does not bring any new medical evidence or facts to necessitate a change to the disposition of his case.  

5.  There is no error or injustice in this case.  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)                                         AR20130011774





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ABCMR Record of Proceedings (cont)                                         AR20130011774



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