IN THE CASE OF:  	  

		BOARD DATE:  23 September 2014  	  

		DOCKET NUMBER:  AR20140001150 


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), item 10 (If Retired Because of Disability, The Board Makes the Recommended Finding That:) to show his medical retirement is based on disability from an injury received in the line of duty (LOD) and was caused by an instrumentality of war.

2.  He states, in effect, he was retired from military service based on a spine injury resulting in degenerative joint disease of his lumbar spine.  He maintains that his injury was sustained during the Gulf War period.  The injury occurred during a field training exercise in 2000 while engaged in the performance of duty under conditions simulating war.  He adds the 5-ton truck that caused his injury is an "instrumentality of war" as defined in Title 26, U.S. Code, section 104.  He further states his spine injury required two spine surgeries that resulted in a number of secondary related conditions which include chronic testicular and abdominal pain that rendered him unfit for duty.  

3.  He provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Medical Narrative Summary
* Compensation and Pension Exam Report, dated 24 March 2009
* U.S. Army Human Resources Command (HRC) letter, dated 17 November 2009
* DA Form 199

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 (RA) on 20 January 1999 and he held military occupational specialty 92G (Food Service Specialist).  

3.  In the applicant's medical narrative summary from Fort Belvoir, VA, the Medical Evaluation Board (MEB) physician provided a history of the applicant's present illness.  He stated that a 30-year old sergeant first class (SFC) sustained an injury to his lower back in 2000 when he was hit in the head by the tailgate of a 5-ton truck during a simulated attack in a field training exercise.  When the applicant bent down to pick-up a box of rations the Soldiers holding the tailgate unintentionally dropped it on the applicant's head while attempting to take cover from a simulated mortar round.  He further exacerbated the initial injury when he fell again while lifting a 300-pound block of ice during the course of normal duty.

4.  The applicant's Compensation and Pension Exam Report, dated 24 March 2009, shows he suffered with testicular pain that was listed as secondary to spinal surgical trauma.  The report also stated that the abdominal and testicular pain continued since the laminectomy on 1 October 2007.  

5.  On 27 May 2009, a PEB was convened and considered the applicant's conditions of herniated discectomy, chronic radiculopathy lumbar spine, and chronic testicular and abdominal pain.  The PEB found these conditions were unfitting but stable.  The board stated the conditions independently prevented the applicant from performing the most basic Soldier tasks, as well as most individual, collective and leadership tasks, required of a 92G.  The PEB recommended the applicant receive permanent disability retirement with a combined rating of 60 percent (%).  Item 10, of his DA Form 199 states:

   a.  The Soldier's retirement is NOT based on disability from an injury or disease received in the LOD as a direct result of armed conflict or caused by an instrumentality of war and incurring in LOD during a period of war as defined by law.

   b.  The evidence of record reflects the Soldier was not a member or obligated to become a member of an armed force or Reserve thereof, or the National Oceanic and Atmospheric Administration or the U.S. Public Health Service on 
24 September 1975.

	c.  Disability did not result from a combat-related injury as defined in Title 26, U.S. Code, section 104 and for purposes of Title 10, U.S. Code, section 10216(G).

6.  On 27 May 2009, he concurred with the PEB findings and waived his right to a formal hearing.

7.  On 7 September 2009, he was retired accordingly.  His DD Form 214 shows the narrative reason for separation as "Disability, Permanent (Enhanced)".  He was retired in the rank of SFC and he was credited with 10 years, 7 months, and 18 days of active service. 

8.  The applicant's official military personnel file is void of a LOD investigation. 

9.  On 17 November 2009, HRC, responded to the applicant's request for Combat-Related Special Compensation (CRSC).  The representative verified his condition of Degenerative Joint Disease L Spine was combat-related with a total combat-related disability rating of 40%. 

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System 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 office, grade, rank, or rating.  The regulation defines instrumentality of war as 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.

11.  Title 26, U.S. Code, section 104 states that 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.

12.  Department of Defense Instruction 1332.38.(Physical Disability Evaluation), paragraph E3.P5.2.2 states that combat-related covers those injuries and diseases attributable to the special dangers associated with armed conflict or the preparation or training for armed conflict.  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 circumstances listed below:

* As a direct result of armed conflict
* While engaged in hazardous service
* Under conditions simulating war
* Caused by an instrumentality of war

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was hit in the head when someone dropped the tailgate of a 5-ton truck when he was picking up some rations.  The medical narrative summary indicates he was on a field training exercise when the injury occurred.

2.  The applicant's LOD investigation is not available.  Picking up rations is not combat training and a tailgate on a military vehicle is not considered an instrumentality of war.  As explained in paragraph 10b above, an instrumentality of war injury must be incurred incident to a hazard or risk of service.  This does not simply mean the injury was incurred in the LOD, but it also requires the incident to be something that normally a civilian would not be subjected to.

3.  Further, as defined in paragraph 10b of this document, the use of occurrence of the object that caused the injury must differ from "the use or occurrence under similar circumstances in civilian pursuits."  For the injury to be considered combat related training it must be "attributed to the special dangers associated with armed conflict or the preparation or training for armed conflict."  There were no special dangers associated with picking up supplies near a military vehicle.  Other than his own history, as listed in the narrative summary, there is no evidence to show the tailgate was unintentionally dropped while they were attempting to take cover from a simulated mortar round.

4.  It is unclear of the exact date the injury that actually caused his present condition occurred since his medical narrative summary reported that he fell again while lifting a 300-pound block of ice during the course of normal duty.  Nevertheless, the applicant does not meet the criteria to have item 10 of his DA Form 199 corrected.  There is no evidence and he has not provided any to show that his back condition was the direct result of armed combat, caused by an instrumentality of war, or was the result of combat training.  

5.  In view of the foregoing, there is an insufficient evidentiary 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)                                         AR20140001150



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ABCMR Record of Proceedings (cont)                                         AR20140001150



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