IN THE CASE OF:  

		BOARD DATE:  14 May 2014

		DOCKET NUMBER:  AR20130014359


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 reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision promulgated in Docket Number AR20120020266, dated 13 June 2013.  Specifically, he requests correction of his DA Form 199 (Physical Evaluation Board (PEB) Proceedings) to show his retirement was based on a disability from an injury that was received in the line of duty as the 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.

2.  The applicant states:

* he has included documents that were not part of his prior application and a statement from a person with knowledge of his condition
* his history of back pain began after his deployment to Southwest Asia in support of Operation Desert Storm
* at the time, the medical community diagnosed his condition as a back spasm and he continued his normal routine 
* during his deployment to Iraq in 2003, his unit was required to perform convoy movements from Kuwait into Iraq
* these convoy movements were under extreme conditions and exerted an uncommon force on his back
* once in Iraq, his unit was subjected to constant mortar attacks at Forward Operating Base (FOB) Merez; these mortar attacks further aggravated his physical condition
* while at FOB Merez, he went on sick call numerous time; however, his doctors advised him his treatment would have to wait until after he redeployed to the U.S.
* his treatment and official diagnoses for his back pain did not occur until after he redeployed from Iraq in November 2004
* prior to that, he underwent numerous physical examinations; however, the medical community did not address any issues with his back
* no complaint of back issues was recorded until he deployed to Iraq and was engaged in combat operations, which aggravated his back issues

3.  The applicant provides the following documents in support of his request:

* ABCMR Docket Number AR20120020266, dated 13 June 2013
* Medical Evaluation Board (MEB) and PEB Proceedings from 2005-2006
* Permanent Orders Number 136-32, issued by the Headquarters, I Corps and Fort Lewis, Fort Lewis, WA on 16 May 2006
* a statement from a retired noncommissioned officer (NCO), with whom he served in Iraq in 2003-2004

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20120020266, dated 13 June 2013.

2.  The applicant provides his MEB and PEB Proceedings from 2005-2006, permanent orders that awarded him the combat action badge (CAB), and a statement from a retired NCO, with whom he served in Iraq in 2003-2004.  These documents constitute new evidence.  These new documents were not previously considered; therefore, this new evidence warrants consideration by the Board.

3.  On 14 June 1993, after 7 years, 5 months, and 14 days of enlisted service in the Regular Army, the applicant was appointed as a Reserve warrant officer of the Army with concurrent call to active duty.

4.  On 14 June 1995, he was promoted to the rank of chief warrant officer two, and on 1 May 2000, he was promoted to the rank of chief warrant officer three. 

5.  His record shows he deployed to Iraq, in support of Operation Iraqi Freedom, from 4 November 2003 through 27 October 2004.

6.  On 1 May 2005, he was promoted to the rank of chief warrant officer four (CW4).
7.  On or about 28 December 2005, the applicant underwent an MEB at Bassett Army Hospital, Fort Wainwright, AK.  

   a. His narrative summary (NARSUM) and DA Form 3947 (MEB Proceedings) reference his condition as chronic low back pain with radicular symptoms down his right leg.  

   b. Both the NARSUM and DA Form 3947 identify the proximate date of origin as 1990; neither document links the origin of his back pain to any injury/event sustained during any combat deployment, including Operations Desert Shield and/or Desert Storm.

c. The MEB referred him to a PEB.

8.  On 23 January 2006, an informal PEB convened at Fort Lewis, WA to consider his cited condition, chronic back pain since 1990.  The PEB rated him under the Department of Veterans Affairs (VA) Schedule for Rating Disabilities (VASRD) and granted him a 0-percent disability rating for codes 5299 and 5237.  The PEB determined he was unfit for duty, granted him a zero percent disability rating, and recommended his permanent disability retirement if otherwise qualified.  

9.  On 24 January 2006, he nonconcurred with the PEB's findings and recommendation but waived a formal hearing.

10.  On 27 January 2006, his case was reconsidered by the PEB, which determined him to be physically fit to perform the duties of his office, grade, rank, and military occupational specialty.  Additionally, he was found to be deployable within the limitations of his profile.

11.  On 30 January 2006, he concurred with the PEB's findings.

12.  On 5 November 2010, an MEB convened and considered the applicant's conditions (chronic low back pain with radiculopathy, Type II diabetes requiring medications, diabetic neuropathy, and many other ailments that were found to meet retention standards) under the provisions of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  The MEB recommended the applicant be referred to a PEB.  

13.  On 8 November 2010, the findings and recommendations of the MEB were approved.  On 10 November 2010, the applicant was informed and agreed with the approved findings and recommendations of the MEB.

14.  On 7 December 2010, an informal PEB convened and considered the applicant's cited conditions.  The PEB determined he was fit for duty in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 3-1.

15.  On 9 December 2010, the applicant nonconcurred with the findings and recommendations of the PEB and requested a formal hearing of his case.

16.  On 27 December 2010, a PEB convened and reconsidered his cited conditions.  The PEB found him unfit for further service because of:

   a. Low back pain with radiculopathy – noncombat related.  The PEB findings stated the back pain onset was reported by the applicant (emphasis added) during the first Gulf War in 1991.

   b. Type II diabetes mellitus with residual of neuropathy – noncombat related – noncombat zone.  

17.  On 14 January 2011, a PEB again reconsidered his cited conditions.  The PEB found him unfit for further service because of 

   a. Type II diabetes mellitus with residual of neuropathy – noncombat related – noncombat zone.  

   b. Bilateral neuropathy, lower extremities, non-combat related, non-combat zone.

c. Low back pain with radiculopathy – noncombat related.

The PEB reviewed all available medical records and determined the applicant's medical conditions prevented performance of duty in his grade and specialty.  The PEB found the applicant physically unfit and recommended a combined rating of 40 percent and that he be retired due to permanent disability.  The PEB noted the applicant's retirement was not 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 the line of duty during a period of war as defined by law.  His disabilities did not result from a combat related injury.

18.  On 26 January 2011, the applicant concurred with the findings and recommendations of the PEB, waived a formal hearing of his case, and indicated he did not request reconsideration of his VA ratings.

19.  On 30 April 2011, he was honorably retired from the Army in the rank of CW4, under the provisions of Army Regulation 635-40, chapter 4, for permanent (enhanced) disability.

20.  The applicant's record is void of any evidence and he has not provided any evidence showing he ever participated in actual combat or that he sustained an injury as the result of participating in combat.

21.  Army Regulation 635-40 establishes the Army 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/her office, grade, rank, or rating.  It states:

   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 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.

   b. The term "instrumentality of war" refers to a device primarily designed 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.

   c. In paragraph 4-19j, that 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 line of duty 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 line of duty during a period of war as defined by law.

22.  Title 26, U.S. Code, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for correction of his PEB Proceedings to show his disability resulted from an injury he sustained during Operations Desert Shield and Desert Storm was carefully considered.

2.  He contends his injury was sustained during his participation in Operations Desert Shield and Desert Storm; however, the evidence of record does not support his contention.

3.  Both his NARSUM and MEB Proceedings identify the proximate date of origin of his lower back pain as 1990; neither document links the origin of his back pain to any injury/event sustained during any combat deployment, including Operations Desert Shield and/or Desert Storm.

4.  Later MEB and PEB Proceedings identify the proximate date of origin of his lower back pain as 1991; however, these documents attribute that date to the applicant, and not any other source document that supports it.

5.  Unfortunately, there is no documentary evidence of record, and he has not provided any evidence, that convincingly shows his injury was received in the line of duty, as the 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.

6.  In view of the foregoing, there is an insufficient basis for granting the applicant's 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 to amend the decision of the ABCMR set forth in Docket Number AR20120020266, dated 13 June 2013.





      ___________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)                                         AR20110003129



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ABCMR Record of Proceedings (cont)                                         AR20130014359



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