IN THE CASE OF:	  

		BOARD DATE:	  2 July 2014

		DOCKET NUMBER:  AR20130016656 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was discharged because of a combat-related event instead of a non-combat related event. 

2.  The applicant states he began having problems with his lower back while deployed in Iraq.  He was seen only once for this injury while deployed.  He had blood in his urine at the time so he thought the back pain was from some other issue.  The doctor conducted a urine test but found nothing wrong and told him that it was probably due to dehydration.  He never saw anyone about the pain again because he believed it to be soreness from wearing full combat gear, since it began during deployment.  However, he was treated for his injury following his deployment to make sure it was not just from overuse.  He wanted to see how not wearing his gear, getting rest, and getting proper strength training would affect his back.  Since he was a medic in the Army, he knew the steps and what the plan of action for lower back pain was.  He believes that his injury being noted as not related to combat is an error since the injury began during his deployment.

	a.  He further states "I was told that it did not matter what my injury said," having it changed would result in a restart of the medical evaluation board (MEB)/physical evaluation board (PEB) process and that he had nothing to gain from it.  However, he recently learned that if his injury was found to be combat-related he would not have to repay all of his severance pay.

   b.  He further explains why he believes his back injury was combat incurred in a self-authored statement.  

3.  The applicant provides:

* a self-authored statement
* Combat Action Badge orders
* statement of service
* two Standard Forms 600 (Health Record - Chronological Record of Medical Care)
* Joint Base Lewis-McChord Orders 119-0008
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 256A (Honorable Discharge)
 
CONSIDERATION OF EVIDENCE:

1.  On 17 January 2007, the applicant enlisted in the Regular Army.  He completed training and was awarded military occupational specialty 68W (Health Care Specialist).  

2.  Permanent Order 106-093 issued by Headquarters, Multi-National Corps-Iraq, dated 16 April 2008, awarded him the Combat Action Badge for actively engaging or being engaged by the enemy on 6 March 2008.

3.  A Standard Form 600 shows on 3 October 2008, while he was deployed, he was seen for blood in his urine and during that same visit he indicated "he had generalized lower back pain a week ago."  There is no indication he incurred trauma to his back during his period of deployment to a combat zone.

4.  A Standard Form 600, dated 8 December 2008, shows he was seen at a Fort Lewis, WA, medical clinic on this date due to lower back pain.  He was released without limitations.

5.  The MEB Narrative Summary and DA Form 199 (PEB Proceedings) are not available for review with this case.

6.  A Physical Disability Information Report, dated 24 June 2011, shows he was assigned a 10 percentage disability rating.  It shows his disability was not based on an injury or disease received in the line of duty 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 in law.  It further shows that his disability was not incurred in a combat zone or incurred during the performance of duty in combat-related operations as designated by the Secretary of Defense National Defense Authorization Act (NDAA) 2008 Section 1646.

7.  On 29 April 2011, Headquarters, Joint Base Lewis-McChord, issued orders 119-0008 discharging him effective 26 June 2011.  The Additional Instructions section of the orders shows in:

	a.  paragraph d, "Disability is based on injury or disease received in the line of duty 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:  No";

	b.  paragraph e, "Disability resulted from combat related injury as defined in 26 USC 104 [Title 26, U.S. Code, Section 104]:  No"; and

	c.  paragraph g, "Disability was incurred in a combat zone or incurred during the performance of duty in combat-related operations as designated by the Secretary of Defense (NDAA 2008 [Section] 1646):  No."

8.  On 26 June 2011, he was honorably discharged after completing 4 years, 5 months, and 10 days of net active service.  His DD Form 214 shows in:

* item 18 (Remarks) – he served in Iraq from 15 November 2007 through 1 November 2008 and he was authorized $16,000 disability severance pay in accordance with Section 1208 of Title 10, U.S. Code
* item 25 (Separation Authority) – Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4
* item 28 – "DISABILITY, SEVERANCE PAY, NON-COMBAT (ENHANCED)"

9.  His record is void of documentation showing his disability was incurred while serving in a combat zone or while performing duty in a combat-related operation so designated by the Secretary of Defense.

10.  The FY 2008 NDAA, which became Public Law 110-181 on 28 January 2008, authorized an enhancement of disability severance pay for members of the armed forces.  The law mandated that the Secretaries of Military Departments identify and certify members with a disability incurred in a line of duty in a combat zone tax exclusion area or incurred during performance of duty in combat-related operations as designated by the Secretary of Defense.  The determination of "incurred during performance of duty in combat-related operations" shall be made consistent with the criteria of the law.  This provision applies to members not disability separated or retired as of 28 January 2008.  The statute provides that there will be no deduction from compensation of severance pay for disabilities incurred in combat zones or incurred during performance of duty in combat-related operations as designated by the Secretary of Defense.

11.  Department of Defense Instruction 1332.38, subject:  Physical Disability Evaluation, states a physical disability evaluation shall include a determination and supporting documentation on whether the member's physical disability compensation is excluded from Federal gross income under Title 26 USC 104.  A physical disability shall be considered combat-related if it makes the member unfit or contributes to unfitness and was incurred under any of the following circumstances:

* as a direct result of armed conflict
* while engaged in hazardous service
* under conditions simulating war
* caused by an instrumentality of war

12.  The Department of Defense Financial Management Regulation, Volume 7a, chapter 35, states that the Department of Veterans Affairs (VA) deducts disability severance compensation from any VA compensation for the same disability to which the member or member’s dependents become entitled under any law administered by the VA.  As an exception, no deduction will be made in the case of disability severance pay received by a member for a disability incurred in the line of duty in a combat zone or incurred during performance of duty in combat-related operations as designated by the Secretary of Defense.

13.  Title 26 USC 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 evidence of record does not support the applicant's request for correction of his record to show his disabling condition was combat-related.

2.  The MEB/PEB proceedings are not available for review.  However, based on the Physical Disability Information Report it appears the PEB determined he was physically unfit for further military service and recommended separation with entitlement to severance pay.  In the absence of evidence showing otherwise it is presumed that the PEB proceedings were completed in accordance with regulatory policy and law.

3.  There is no history of trauma to his back during his period of deployment to a combat zone or other evidence of record to show his disabling condition was the result of an injury that occurred or was sustained during combat or in a combat zone.  As such, the evidence shows his disabling condition was properly categorized as non-combat related.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20130016656



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ABCMR Record of Proceedings (cont)                                         AR20130016656



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