IN THE CASE OF:	  

		BOARD DATE:	  9 September 2014

		DOCKET NUMBER:  AR20140001368 


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 Orders D281-07, dated 8 October 2013, to show his disability was based on an injury or disease received in the line of duty (LOD) 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.

2.  The applicant states Orders D281-07 has a "No" after the statement "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 war period as defined by law."  This is incorrect and should have a "Yes" after the statement.  He has been part of the same training unit for his entire military career of 22 years.  The unit was tasked with training other units for war in Iraq and Afghanistan in mock villages and forward operating bases (FOBs) located at Camp Shelby, MS.  He was a trainer so his disabilities should be listed as a result of simulation of war.

3.  The applicant provides three DA Forms 2173 (Statement of Medical Examination and Duty Status), a doctor's statement, and two statements of support.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve (USAR) on 3 September 1991 and he held military occupational specialty 25U (Signal Support Systems Specialist).  He was assigned to the 1st Brigade, 87th Division, Birmingham, AL.  

2.  He was mobilized as a member of his USAR unit and entered active duty on 8 November 2004.  He attained the rank/grade of staff sergeant (SSG)/E-6 on 30 June 2005 and the rank/grade of sergeant first class (SFC)/E-7 on 15 March 2008.

3.  His record contains the following DA Forms 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)):

	a.  An annual NCOER covering the rating period December 2004 to November 2005 for his duties while serving as the Signal Support Systems NCO.  His unit is shown as the 1st Brigade, 87th Division, Birmingham.  This NCOER, in part, showed his duty description as "installs, operates, and maintains automation and telephone equipment used in Warfighters and battle command staff training (BCST) exercises.  This NCOER shows he passed the Army Physical Fitness Test (APFT) in October 2005.

	b. A change of rater NCOER covering the rating period December 2005 to August 2006 for his duties while serving as the Signal Support Systems NCO.  His unit is shown as the 1st Brigade, 87th Division, Birmingham.  This NCOER, in part, showed his duty description as "installs, operates, and maintains Battle Projection Group automation equipment used in BCST simulation exercises.  This NCOER shows he passed the APFT in April 2006.

	c.  An annual NCOER covering the rating period 1 September 2006 to 31 August 2007 for his duties while serving as the Signal Support Systems NCO.  His unit is shown as the 4th Brigade, 75th Division, Birmingham.  This NCOER, in part, showed his duty description as "installs, operates, and maintains automation and telephone equipment used in Warfighters and BCST exercises.  This NCOER shows he passed the APFT on 12 February 2007.

	d.  An annual NCOER covering the rating period 1 September 2007 to 31 August 2008 for his duties while serving as the Senior Observer Controller/Trainer (OC/T) NCO.  His unit is shown as the 4th Brigade, 75th Division, Birmingham.  This NCOER, in part, showed his duty description as "provides tactical and technical support in BCST exercises as an opposing force (OPFOR) controller; serves as a trainer in tactical OPFOR maneuver."  This NCOER shows he passed the APFT on 5 June 2008.

	e.  An annual NCOER covering the rating period 1 September 2008 to 31 August 2009 for his duties while serving as the Senior OC/T NCO.  His unit is shown as the 4th Brigade, 75th Division, Birmingham.  This NCOER, in part, showed his duty description as "provides tactical and technical support in BCST exercises as an OC/T in tactical maneuver."  This NCOER shows he passed the APFT on 5 April 2009.

	f.  An annual NCOER covering the rating period 1 September 2009 to 31 August 2010 for his duties while serving as the Senior OC/T NCO.  His unit is shown as the 4th Brigade, 75th Division, Birmingham.  This NCOER, in part, showed his duty description as "provides tactical and technical support in BCST exercises as an OC/T, serve[s] as a trainer in tactical maneuver."  This NCOER shows he passed the APFT on 8 November 2009.

4.  The applicant provides the following DA Forms 2173 that all show his unit as A Company, Warrior Transition Battalion, Fort Benning, GA:

	a.  One that stated he was seen as an out-patient on 9 April 2010 at Fox Army Health Clinic, Huntsville, AL, for a complaint of right shoulder pain.  He was examined, x-rayed, and diagnosed with joint pain localized in the right shoulder.  It was signed by the LOD clerk on 21 September 2010 and by the company commander on 23 September 2010.  It shows his injury was considered to have been incurred in the LOD.

	b.  One that stated he was seen as an out-patient on 6 August 2010 at Martin Army Community Hospital (MACH), Fort Benning, for a complaint of low back pain.  He was examined, x-rayed, and diagnosed with facet syndrome lumbar/thoracic spondylosis/acquired deformity of the spine.  It was signed by the LOD clerk on 21 September 2010 and by the company commander on 23 September 2010.  It shows his injury was considered to have been incurred in the LOD.

	c.  One that stated he was seen as an out-patient on 6 August 2010 at MACH, Fort Benning, for a complaint of neck pain that radiated to his arm and shoulder.  He was examined, x-rayed, and diagnosed with cervicalgia.  It was signed by the LOD clerk on 21 September 2010 and by the company commander on 23 September 2010.  It shows his injury was considered to have been incurred in the LOD.

5.  The applicant provides a doctor's statement, dated 6 January 2011, wherein Dr. TMO, Nexus Pain Center, Columbus, GA, stated the applicant was seen on that date for a complaint of neck pain that radiated into his shoulder, the right greater than the left, and he noted increasing muscle weakness in his arms and neck, as well as numbness and tingling in his arms.

6.  He was honorably released from active duty on 29 June 2011 by reason of completion of required active service to the control of his USAR unit.  He completed 6 years, 7 months, and 22 days of creditable active service during this period of service.

7.  On 27 November 2012, a medical evaluation board (MEB) convened at William Beaumont Army Medical Center, El Paso, TX, and diagnosed the applicant with the conditions of cervicalgia, right shoulder osteoarthritis, and degenerative disc disease (DDD) lumbar spine that failed retention standards.  The MEB also found the conditions of hypertension, right hamstring strain, muscle spasms of both shoulders, allergic rhinitis, and history of vertigo did meet retention standards.  The MEB recommended his referral to a physical evaluation board (PEB).

8.  On 10 September 2013, an informal PEB convened at Joint Base Lewis McChord, WA, and confirmed his unfitting disabilities of cervicalgia, right shoulder osteoarthritis, and DDD lumbar spine.  The PEB found the applicant's conditions prevented him from performing the duties required of his grade and specialty and determined that he was physically unfit due to those disabilities.  The PEB recommend he be permanently retired by reason of disability with a combined rating of 30 percent (%).

9.  The DA Form 199 (Informal PEB Proceedings), in part, shows he was rated under the Department of Veterans Affair Schedule for Rating Disabilities (VASRD) codes as follows:

	a.  Code 5243-5237 for cervicalgia and assigned a 10% disability rating.  The PEB found although the condition stretched back to 2008, the applicant first reported neck pain during demobilization at Fort Benning in 2010.  There was no specific trauma causing event but the applicant had been seen consistently for non-radicular neck pain since July 2010 (emphasis added).

	b.  Code 5201-5019 for right shoulder osteoarthritis and assigned a 10% disability rating.  The PEB found although the condition stretched back to 2005, the applicant first reported right shoulder pain during demobilization at Fort Benning in 2010.  There was no specific trauma causing event but the applicant had been seen consistently for right shoulder pain since July 2010.

	c.  Code 5243-5237 for DDD lumbar spine and assigned a 10% disability rating.  The PEB found although the condition stretched back to 2008, the applicant first reported back pain during demobilization at Fort Benning in 2010.  There was no specific trauma causing event but the applicant had been seen consistently for non-radicular back pain since July 2010.

10.  The DA Form 199 also shows the PEB found:
   a.  His disability was not based on a disease or injury incurred in the line of duty in combat with an enemy of the United States and 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.
   
   b.  The disability did not result from a combat-related injury under the provisions of Title 26 U.S. Code (USC) 104 or Title 10 USC 10216.
   
11.  On 20 September 2013, after being counseled as to the findings and recommendations of the informal PEB, the applicant waived his right to a formal hearing of his case and concurred with the PEB findings and determination.

12.  Orders D281-07, dated 8 October 2013, issued by the U.S. Army Physical Disability Agency, released him from duty because of physical disability incurred while entitled to basic pay and under conditions that permit his retirement for permanent physical disability and placed him on the Retired List effective 12 November 2013 with 30 percent disability.  This order show, in part:  

* 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
* disability resulted from combat related injury as defined in 26 USC 104 - NO

13.  The applicant provides two statements of support, dated 12 January 2014 and 13 January 2014, wherein SFC HJM, USAR (Retired) and Lieutenant Colonel AB, USAR, respectively, stated the applicant suffered an injury to his lower back while removing computer equipment off a truck during a tactical mission at Camp Shelby during January 2005.  He continued with the mission because the team was understaffed and sought medical treatment once the team returned to their home station in Birmingham. 

14.  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 or her office, grade, rank, or rating.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.

15.  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 26 USC 104.  A physical disability shall be considered combat-related if it makes the member unfit or contributes to unfitness and was incurred a direct result of armed conflict, while engaged in hazardous service, under conditions simulating war, or caused by an instrumentality of war.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was mobilized as a member of his USAR unit and entered active duty on 8 November 2004.  His records show while serving on active duty, he was promoted to SSG on 30 June 2005 and to SFC on 15 March 2008.  It appears he performed all his assigned duties, and he passed the APFT in October 2005, April 2006, February 2007, June 2008, June 2009, and November 2009.  

2.  He provides three DA Forms 2173, all dated 23 September 2010, wherein they stated he was seen on 9 April 2010 for right shoulder pain, and on 6 August 2010 for complaints of low back pain and neck pain.  He was subsequently diagnosed with joint pain (right shoulder pain), facet syndrome lumbar/thoracic spondylosis/acquired deformity of the spine, and cervicalgia.

3.  He was released from active duty on 29 June 2011 by reason of completion of required active service.

4.  On 10 September 2013, an informal PEB confirmed his unfitting disabilities of cervicalgia, right shoulder osteoarthritis, and DDD lumbar spine.  The PEB found he was physically unfit due to those disabilities and recommended he be permanently retired by reason of disability with a combined rating of 30%.  In addition, the PEB also found that none of his disabilities were caused by a specific trauma causing event.  The applicant concurred with the findings and recommendations of the PEB.

5.  Orders D281-07 retiring him by reason of permanent disability correctly show his disabilities were not 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.  In order for this to be a "Yes" the disabilities/injuries must have occurred in combat, while performing duties simulating combat conditions, or while performing especially hazardous duties such as parachuting or scuba diving.

6.  Although he may have received treatment for right shoulder pain, low-back pain, and neck pain in 2010, and he was subsequently diagnosed with, cervicalgia, right shoulder osteoarthritis, and DDD lumbar spine, this only shows these conditions may have been aggravated by his service, may be service-related, and may have progressed over time.  He has not submitted any conclusive evidence that shows these conditions occurred under conditions simulating war.  Unloading computer equipment during a tactical exercise does not constitute a condition simulating war.

7.  Without conclusive evidence to establish a direct, causal relationship of the applicant's conditions of cervicalgia, right shoulder osteoarthritis, and DDD lumbar spine, to the simulation of war, there is an insufficient evidentiary 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 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)                                         AR20140001368





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ABCMR Record of Proceedings (cont)                                         AR20140001368



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