IN THE CASE OF:	  

		BOARD DATE:	    7 May 2014

		DOCKET NUMBER:  AR20130015153 


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 the documents below to show his Post-Traumatic Stress Disorder (PTSD) was a combat-related disability:  

* DA Form 3947 (Medical Evaluation Board (MEB) Proceedings), dated 
24 July 2001
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 
17 October 2001
* Record of Proceedings (ROP) Physical Disability Board of Review (PDBR), dated 1 November 2012
* Retirement orders
* DD Form 214 (Certificate of Release or Discharge from Active Duty) 

2.  The applicant states he is not refuting the findings of the PDRB.  He is appealing to the Army Board for Correction of Military Records (ABCMR) to correct the above documents to show his PTSD was a combat-related disability.  He believes the records showing his disability was non-combat related contain typographical errors.  Every Army and Department of Veterans Affairs (VA) doctor who examined him stated that his PTSD was combat-related.  His PTSD was a direct result of his service in Desert Storm.  

3.  The applicant provides in addition to the above documents he requests to be corrected:

* Orders Number 323-0001, dated 19 November 2001
* Memorandum, undated
* Letter, dated 19 November 2012
* Orders Number 081-0318, dated 22 March 2013
* Orders Number 081-0319, dated 22 March 2013
* Orders Number 086-0324, dated 27 March 2013
* Orders Number 086-0325, dated 27 March 2013
* VA rating decision, dated 29 March 2013
* Memorandum, dated 6 June 2013
* Orders Number 161-0322, dated 10 June 2013
* Letter, dated 11 June 2013
* Orders Number D162-09, dated 11 June 2013
* Self-authored statement, dated 20 July 2013
* Excerpt, Title 26, U.S. Code (USC), Section 104 (Compensation for injuries or sickness)

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 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 ABCMR does not have the authority to amend or correct PDBR ROPs because PDBR decisions are final.  As such, correcting the PDBR ROP will not be addressed further in this case.

3.  The Interactive Web System (IWS)-Total Army Personnel Data Base (TAPDB) shows the applicant's initial entry date as 1 June 1988 and his basic active service date (BASD) as 5 October 1989.  However, his Army Military Human Resource Record (AMHRR) does not contain any records from this period of service.

4.  The Gulf War Deployment Roster is a record of Soldiers who participated in Desert Shield/Storm and served in Southwest Asia in support of military operations during the period 2 August 1990 through December 1995.  This roster shows the applicant served in Southwest Asia from 15 December 1990 to 28 April 1991. 

5.  After having previous enlisted service, the applicant enlisted in the Regular Army (RA) on 4 October 1993 and served through a series of reenlistments.  He served in a variety of assignments, held military occupational specialties 31U (Signal Support Systems Specialist) and 63D (Self-Propelled Field Artillery Systems Mechanic), and attained the rank/grade of sergeant (SGT)/E-5.

6.  His record contains an MEB Narrative Summary (NARSUM), dated 18 May 2001, which shows the applicant had a permanent S-3 profile due to complaining of panic attacks, nightmares, anger, anxiety, and depression.  The NARSUM stated:

	a.  The applicant was deployed with his unit to Saudi Arabia from 
15 December 1990 until June of 1991 to provide Corps fire support for the 2nd Cavalry and 1st Infantry Divisions.  During this period he was involved in a number of life-threatening situations, including an incident where he had to drive a truck through a mine field with black smoke all around, episodes of seeing fellow Americans in body bags, two days of shelling followed by a drive through the region where his unit had just been doing the shelling, and rides in trucks with gunfire exchange occurring.  His physician concluded that during his service in Saudi Arabia he was exposed to multiple traumatic events that caused him to experience fear for his life, witnessed others dying, and the results of destruction to which he felt he had contributed.  He was fearful and hopeless during much of this time.  

	b.  He reported that, after his service in Saudi Arabia, he began pulling away from others and not desiring to discuss what happened to him.  He began living in the cab of his truck about 3 months after his return from Saudi Arabia and continued to live there for a period of about 6 months.  After his RA service he served in the National Guard for 14 months and during this period he began having nightmares and would awaken in cold sweats; however, he wished to continue on active duty.

	c.  Once back on active duty he found it difficult to return to his old duties.  He became angry and intense at times, and decided it would be best that he remove himself from leadership positions.  He also began drinking to alleviate his anxiety 
but he was able to control the condition prior to requiring formal treatment.  He limited his options for career advancement because of fears about combat.

	d.  In late 1996 he received a Desert Storm physical and was found to have symptoms consistent with PTSD.  Since that time he had been followed in a clinic at Fort Polk, LA and continued to serve in an active duty capacity.  He continued to limit his duties and advancement attempts in an effort to avoid stressors.  In the jobs he did perform he was able to work well, which limited command knowledge of his condition.  He continued to have difficulties with active duty service and experienced extreme anxiety with formations, the presence of military symbols including uniforms, and being around large crowds of people (especially if these people were in uniform).  He found dental appointments and barber shops particularly stressful due to the symbolic helplessness involved in such procedures.  He would avoid appointments and formations or simply leave in the middle of them because of feelings of panic.  

	e.  During his treatment, the applicant brought in a qualitative journal listing times and severity of his panic attacks.  During a 15-day period he noted only two days without attacks.  These days were both noted to be on the weekends while he was at home and he, in fact, felt "uneasy" during the second of these two days, which prompted him to retire early and go to bed.  His attacks were mostly related to being around many people with qualitative measurements given about 4-6 on the scale from 1-10 during these attacks.  Some attacks were related to very large numbers of people, resulting in 7s on that same scale.  One attack, while he was getting his hair cut, was rated at 9 and he wrote, in addition, "really bad."

	f.  Most recently he served as a web page designer and had little contact with the rest of the military.  Despite his low contact he continued to have anxiety attacks, nightmares and distressing recollections of the events in Saudi Arabia.  He also complained of difficulties concentrating, recurrent depression, and anxiety.  In 1998 and 2000 he began drinking alcohol uncontrollably.  He did not receive formal treatment but was able to eventually recover on his own and was alcohol free at the time the NARSUM was completed.  Although he has been able to perform limited duties, the anxiety which he experiences when exposed to military symbols and unit activities has created a tense atmosphere for the applicant which greatly disabled him at work.  He had irritability, difficulty with sleeping, and difficulty with concentrating since serving in Saudi Arabia.  

   g.  Based on these symptoms, this Service Member meets criteria for the diagnosis of PTSD.  In addition, he has been anxious, worried and irritable with restlessness and difficulty sleeping.  These symptoms have persisted for over a year, causing both occupational and personal problems.  As such, this service member suffers from Generalized Anxiety Disorder as well.

   h.  He was diagnosed with a Generalized Anxiety Disorder and PTSD and the diagnosing physician indicated that these conditions did not exist prior to service and were in the line of duty (LOD) – Yes.  


7.  His record contains a DA Form 3947 dated 24 July 2001 showing the MEB considered his disorder of PTSD and determined it occurred while he was entitled to basic pay, that it had not existed prior to service, and that it had been permanently aggravated by service.  He was referred to a PEB and the applicant agreed with the MEB's findings and recommendations.  The DA Form 3947 does not contain a section referring to whether or not a medical condition is combat-related.  

8.  His record contains a NARSUM addendum, dated 10 September 2001, wherein the applicant's physician stated the applicant had been followed in the Fort Polk, LA clinic since 1997 and had been given various treatments for his PTSD.  His treatments included the use of individual supportive therapy, group therapy in a PTSD group, and Eye Movement Desensitization and Reprocessing. Additionally, medication therapy had been used for various symptoms related to the disorder including anxiety, insomnia, and depression.  Attempts had been made at using Trazodone and Serzone as well as selective serotonin reuptake inhibitor agents.  The applicant had shown some improvement over time with these treatments; however, he continued to suffer from the manifestations of PTSD.  His physician noted that it was likely that he would continue to require treatment for these symptoms throughout his life.

9.  His record contains a DA Form 199, dated 1 October 2001, which shows the PEB considered his condition of Generalized Anxiety Disorder with associated PTSD.  The PEB determined the applicant was physically unfit and recommended a combined rating of 10 percent (%).  

	a.  The PEB indicated that the condition was incurred or aggravated while he was entitled to basic pay and was considered to be in LOD.  The PEB also determined that his condition was not based on a disability from 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.  The PEB further determined that his disability did not result from a combat related injury as defined by Title 26, USC, Section 104.

	b.  The applicant concurred with the PEB's findings and recommendations and waived his right to a formal hearing.

10.  Orders Number 323-0001, issued by Headquarters, Joint Readiness Training Center, Fort Polk, LA, dated 19 November 2001, show the applicant's scheduled date of separation was 12 December 2001.  Additionally, these 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 during a war period as defined by law:  No
* Disability resulted from a combat related injury as defined in Title 26, USC, Section 104:  No

11.  His DD Form 214 shows he was honorably discharged from active duty on 12 December 2001 by reason of disability, severance pay.  

12.  His record contains a PDBR ROP, dated 1 November 2012, which shows the applicant stated the PEB should have rated him at 30% with a medical retirement.  

	a.  The ROP outlined the information contained in the NARSUM and stated "The PEB adjudicated the disability as Generalized Anxiety Disorder with associated PTSD… and rated at 10%.  It is unclear why the PEB proceedings document annotates that the [applicant's] disability did not result from a combat related injury."

	b.  The PDBR recommended the applicant's "prior separation be recharacterized to reflect that, rather than discharge with severance pay, the [applicant] was placed on [temporary disability retired list] TDRL at 50% for a period of 6 months (IAW VASRD §4.129) and then permanent disability retirement, at 30%, effective as of the date of his prior medical separation."  The PDBR further recommended that the applicant's prior determination be modified effective as of the date of his prior medical separation to show he was placed on the TDRL with a combined disability rating of 50% and then permanently retired with a combined disability rating of 30%.

13.  Orders Number 081-0319, issued by Headquarters, Joint Readiness Training Center, Fort Polk, LA, on 22 March 2013, rescinded Orders Number 323-0001, dated 19 November 2001.

14.  Orders Number 086-0325, issued by Headquarters, Joint Readiness Training Center, Fort Polk, LA, on 27 March 2013 as amended by Orders Number 161-0322 dated 27 March 2013 show the applicant was placed on the TDRL on 13 December 2001.  These orders also state:

* 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 during a war period as defined by law:  No
* Disability resulted from a combat related injury as defined in Title 26, USC, Section 104:  No
15.  Orders Number D162-09, issued by the U.S. Army Physical Disability Agency on 11 June 2013 show he was removed from the TDRL and permanently retired with a 30% disability rating on 12 June 2002.  These orders also state:  

* 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 during a war period as defined by law:  No
* Disability resulted from a combat related injury as defined in Title 26, USC, Section 104:  No

16.  On 11 June 2013, he was issued a DD Form 215 (Correction to DD Form 214) which shows he was retired due to a temporary disability.

17.  He provided a VA rating decision, dated 29 March 2013 showing his percentage of disability had increased from 50% to 70%.

18.  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 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 of 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) 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 Line of Duty during a period of war as defined by law. 

	b.  Paragraph 4-19k states 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 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. 

	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.

19.  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 Gulf War Deployment Roster confirms that the applicant participated in Desert Storm and served in Southwest Asia (Saudi Arabia) in support of military operations from 15 December 1990 to 28 April 1991.  Nevertheless, his AMHRR does not contain any military records prior to his enlistment on 4 October 1993.  Additionally, as indicated in his NARSUM, he did not seek treatment for his PTSD until 1997.

2.  The evidence of record shows the applicant told medical officials that he had to drive a truck through a mine field with black smoke all around, he saw fellow Americans dying and in body bags, he had to endure 2 days of shelling followed by a drive through the region where his unit had just been doing the shelling, and he was a passenger in trucks when gunfire exchange occurred.  

3.  His statement of what happened is insufficient evidence in of itself to emphatically prove that his PTSD was combat-related.  His record did not contain, and he did not provide evidence such as military reports, additional medical records, or statements from other Soldiers who confirm and irrefutably link each of the incidents he mentioned to his PTSD.  As such, there is insufficient evidence to show he meets the criteria to have this condition listed as combat-related or as a result of an instrumentality of war.  

4.  Based on the foregoing evidence, 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 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)                                         AR20130015153



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ABCMR Record of Proceedings (cont)                                         AR20130015153



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