IN THE CASE OF:
BOARD DATE: 14 August 2014
DOCKET NUMBER: AR20130020226
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 his retirement orders to show his disability resulted from combat operations in Iraq.
2. The applicant states:
a. His retirement orders state: "Disability 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 and incurred in the LOD during a war period as defined by law: NO" and "Disability resulted from a combat related injury as defined in 26 USC 104 [Title 26, U.S. Code, section 104]: NO."
b. His medical evaluation board (MEB) paperwork included LOD determinations for the specified injuries and all injuries incurred while in Iraq in 2003.
3. The applicant provides:
* physical evaluation board (PEB) documents
* retirement orders
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 U.S. Army Reserve on 18 September 1985. He was ordered to active duty in support of Operation Enduring Freedom on 10 February 2003. He served in Kuwait/Iraq from 20 April 2003 to 29 April 2004.
3. He provided a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 18 March 2004, which states he sustained a head injury while driving through rough terrain in a military vehicle, causing pain to his head, neck, back, shoulders, left wrist, bilateral ear pain, and extracted abscessed tooth in August 2003 in Iraq. This form states the injury was incurred in the LOD.
4. He was released from active duty to the control of the U.S. Army Reserve on 29 April 2004.
5. He was promoted to staff sergeant on 28 October 2005.
6. On 1 November 2005, he was assigned a permanent physical profile for cervical degenerative disc disease, radiculopathy; left shoulder pain, decreased mobility; left wrist fracture; migraines; and post-traumatic stress disorder (PTSD).
7. He provided a DA Form 2173, dated 26 December 2007, which states:
a. He was on a convoy mission on 15 August 2003 and an improvised explosive device (IED) exploded.
b. He sustained injuries and was sent for medical treatment and returned to duty the same day.
c. He was sent to Kuwait for additional medical treatment and an evaluation on 16 October 2003, but his condition continued to get worse.
d. He was seen by medical authorities on 26 February 2004 and this was the first indication the psychological factors related to the IED attack, addressed his physical injuries, and that he suffered from PTSD.
e. The injury was incurred in the LOD.
8. On 15 May 2008, he was assigned a permanent physical profile for chronic neck, back, bilateral shoulder, and left wrist pain, and PTSD.
9. On 8 July 2008, an MEB diagnosed him with the following conditions that were deemed to be medically unacceptable:
* chronic PSTD
* cervical disc degeneration and post C5-C6 fusion with chronic neck pain
* lumbar intervertebral disc degeneration with chronic low back pain
* bilateral shoulder acromial arthropathy with shoulder pain
* post-fracture left ulnar styloid with radiocarpal degenerative changes and chronic wrist pain
* history of T9 compression fracture, stable with residual rib pain
10. The MEB recommended his referral to a PEB.
11. On 21 July 2008, a PEB found him physically unfit due to:
* spinal fusion, cervical (C5-6)
* PTSD diagnosed in 2004
* degenerative arthritis, lumbar spine with a history of T9 compression fracture
* left shoulder impingement with acromioclavicular arthropathy
* left wrist pain following a closed ulnar styloid fracture in 2003
12. The PEB recommended a combined 50-percent disability rating and permanent retirement.
13. His DA Form 199 (PEB Proceedings) states his retirement is not based on disability from injury or disease received in the LOD as a direct result of armed conflict or caused by an instrumentality of war and incurring in the LOD during a period of war as defined by law, and the disability did not result from a combat-related injury as defined in Title 26, U.S. Code, section 104.
14. On 22 July 2008, he concurred with the PEB findings and waived his right to a formal hearing.
15. On 11 August 2008, the U.S. Army Physical Disability Agency approved the PEB's findings.
16. U.S. Army Physical Disability Agency Orders D224-02, dated 11 August 2008, retired the applicant because of physical disability and placed the applicant on the Retired List effective 16 September 2008. These orders state:
a. "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 the LOD during a period of war as defined by law: NO."
b. "Disability resulted from a combat related injury as defined in 26 USC 104: NO."
17. 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 caused by an instrumentality of war.
DISCUSSION AND CONCLUSIONS:
1. The applicant requests correction of his retirement orders to show his disability resulted from combat injuries incurred in Iraq.
2. Notwithstanding the DA Form 2173, dated 26 December 2007, provided by the applicant which states he was injured during a convoy mission on 15 August 2003 when an IED exploded, contemporaneous medical evidence (DA Form 2173, dated 18 March 2004) provided by the applicant shows his unfitting conditions were incurred while driving in a military vehicle through rough terrain in Iraq, a combat zone.
3. The PEB determined his disabilities did not result from a combat-related injury and he concurred with the PEB findings and recommendation on 22 July 2008.
4. There is no evidence in the available records and he has not provided sufficient evidence which shows his disabilities were incurred as a direct result of armed conflict, while engaged in extra hazardous service under conditions simulating war, or caused by an instrumentality of war. Therefore, there is insufficient evidence with which to amend his retirement orders.
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 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) AR20130020226
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ABCMR Record of Proceedings (cont) AR20130020226
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