IN THE CASE OF:	  

		BOARD DATE:	  13 May 2014

		DOCKET NUMBER:  AR20140003486 


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 (Informal Physical Evaluation Board (PEB) Proceedings), dated 29 October 2013, to show his disability was combat-related.

2.  The applicant states:

   a.  On 12 June 2003, while conducting a casualty evacuation under fire, he was in the process of transferring an enemy insurgent from his vehicle to a medical personnel carrier.  The driver of the personnel carrier placed the vehicle in reverse and did not realize that he was in the back of the vehicle attempting to open the door.  He got hit in the head while wearing his helmet but the impact injured a vertebrae in his neck.
   
   b.  At the time of the incident he felt a little pain.  The next day he went to the medic and he received some medication; however, as time passed his pain got worse.  He has been treated with all types of therapy with no improvement until November 2012 when his neurosurgeon recommended elective surgery.
   
   c.  The PEB and Department of Veterans Affairs (VA) rated his injuries as:
   
* Cervical spondylosis, 40 percent disabling
* Right C5, C6, and C7 radiculopathy, 30 percent disabling


   d.  He desired to continue to serve in the military and he used pain medication and physical therapy to cope with his injuries until he was no longer able to perform his duties.  He discreetly sought psychiatric therapy treatment for the past 5 years and continues receiving psychiatric treatment through the Wounded Warrior Support Center in Colorado Springs.  He was prescribed prazosin for insomnia and citalopram for depression.  His conditions were not negatively observed in his work environment and his performance was rated outstanding.  He found ways to block his personal obstructions.

3.  The applicant provides:

* self-authored statements
* DA Form 199
* Orders Number 323-0020, issued by the Installation Management Command, Fort Carson, CO, dated 19 November 2013
* medical record extracts
* Army Commendation Medal (ARCOM) Certificate
* VA rating decision, dated 21 October 2013

CONSIDERATION OF EVIDENCE:

1.  After having prior periods of honorable service, the applicant reenlisted in the Regular Army on 25 October 1998 for an indefinite period of service.

2.  On an unknown date, the applicant submitted a Traumatic Servicemen's Group Life Insurance (TSGLI) claim.  On 5 April 2013, his claim was returned due to insufficient documentation and the application required corrections.

3.  On 24 April 2013, the applicant resubmitted his TSGLI claim.

4.  On 21 October 2013, the VA evaluated the applicant for a disability determination under the Disability Evaluation System Pilot Program, a joint initiative between the Department of Defense and the VA. 

   a.   After review of the evidence, the VA proposed a combined 70 percent disability rating of the applicant's unfitting conditions as follows:

* cervical invertebral disc syndrome with right side radiculopathy (also diagnosed as cervical degenerative disc disease and C4, C5/6, C6/7 discectomy/fusion, 40 percent
* right C5, C6, C7 cervical radiculopathy, right side, 30 percent
* left knee degenerative changes, 10 percent
* degenerative arthritis, right knee, 10 percent
   b.  The VA granted the applicant a 100 percent disability rating for the above unfitting conditions and other service-connected disabilities.

5.  His DA Form 199, dated 29 October 2013, shows the onset of the applicant's neck pain was traced to Iraq in 2004 where he was struck in the head by an ambulance as it backed up.  He was treated with physical therapy, traction, and surgical C4-C6 foraminotomy.  Despite rehabilitative efforts, he failed to improve sufficiently to return to unrestricted duty.  His condition was unfitting for his military occupational specialty of 19Z (Armor Senior Sergeant) because it prevented the performance of one or more common Soldier tasks (such as wearing a Kevlar helmet) and meeting the physical requirements of his specialty.  Section V (Administrative Determinations) of his DA Form 199 shows:

   a.  his disability disposition 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.  his disability did not result from a combat related-injury under the provisions of Title 26, U.S. Code, section 104 or Title 10, U.S. Code, section 10216.

6.  The PEB found him physically unfit, recommended a disability rating of 70 percent, and a permanent disability retirement.  His unfitting conditions were rated as follows:

* cervical spondylosis, 40 percent
* right C5, C6, C7 radiculopathy, 30 percent
* left knee degenerative arthritis, 10 percent
* right knee degenerative arthritis, 10 percent

7.  On 19 November 2013, Installation Management Command, Headquarters, U.S. Army Garrison, Fort Carson, Fort Carson, CO, published Orders Number 323-0020 ordering the applicant's separation from active duty effective 12 February 2014, by reason of a permanent physical disability.  The orders stated: "Disability is based on injury or disease received in the line of duty (ILOD) as a direct result of Armed Conflict or cause by an instrumentality of war and incurred ILOD during a period of war as defined by law: No."  His orders further show "No disability resulted from a combat-related injury as defined in Title 26, U.S. Code, section 104."


8.  The applicant provides self-authored statements indicating his injury occurred while under direct fire in 2003.  He also provides a copy of his DA Form 199, Orders Number 323-0020, medical record extracts, ARCOM Certificate, and VA rating decision.

9.  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/her office, grade, rank, or rating.  It states in paragraph 4-19j:

	a.  A disability may be considered to be 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 ILOD during a period of war.  A determination that a disability was caused by an instrumentality of war and incurred ILOD will be appropriate only when it is also determined that the disability so incurred in itself renders the member physically unfit and was incurred during one of the periods of war as defined by law.

	b.  In making a determination whether a disability should be classified as being incurred during an armed conflict or due to an instrumentality of war, the following must be considered:

		(1)  The disability resulted from injury or disease received ILOD as a direct result of armed conflict and which itself renders the Soldier unfit.  A disability may be considered a direct result of armed conflict if:

		(a)  the disability 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, while the Soldier was interned as a prisoner of war or detained against his will in the custody of a hostile or belligerent force, or while the Soldier was escaping or attempting to escape from such prisoner of war or detained status; and

		(b)  a direct causal relationship exists between the armed conflict or the incident or operation and the disability.

		(2)  The disability is unfitting, was caused by an instrumentality of war, and was incurred ILOD during a period of war as defined by law.

10.  A document published by the U.S. Army Physical Disability Agency entitled Disabilities Resulting from:  Armed Conflict, Instrumentality of War, Conditions Simulating War, and Disabilities Incurred in a Combat Zone, dated 24 October 2011, provides guidance to PEB's for making determinations on the entries on the DA Form 199.

	a.  The document lists injuries sustained in a routine auto accident in a uniquely military vehicle as an example of injuries sustained by an instrumentality of war.

	b.  Unless the written rationale (on the DA Form 199) concerning the injury or disease is one that clearly describes a particular type of "combat related" classification, the PEB should indicate, after each unfitting condition, whether the condition was "combat related" and, if so, what particular combat-related conditions caused it.

11.  Army Regulation 635-40 states in paragraph 4-19k:

	a.  One of two conditions listed below must be satisfied for military disability retired or severance pay to be exempt from Federal taxation under Title 26, U.S. Code, section 104:

		(1) On 24 September 1975, the individual was a member of the armed forces of any country, the National Oceanic and Atmospheric Administration (NOAA and formerly the Coast and Geodetic Survey), the U.S. Public Health Service, or was under binding written agreement to become such a member. 

		(2) The 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.

	b.  The injury resulting from an instrumentality of war need not have occurred during a period of war as defined by law.

12.  Title 26, U.S. Code, section 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.

13.  Department of Defense (DOD) Instruction 1332.38 (Physical Disability Evaluation) implements policy, assigns responsibilities, and prescribes procedures under DOD Directive 1332.18 (Separation or Retirement for Physical Disability) and Title 10, U.S. Code.  Paragraph E3.P5.2.2 states a physical disability shall be considered combat-related if it makes the member unfit or contributes to unfitness and was incurred under the following circumstances:

    (1)  as a direct result of armed conflict,

    (2)  while engaged in hazardous service,

    (3)  under conditions simulating war, or

    (4)  caused by an instrumentality of war.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for correction of his records to show that his injury or disease was received ILOD as a direct result of "armed conflict" was carefully considered.

2.  Although the applicant was in a combat zone at the time of his injury, by his own admission, his injury was the result of an accident.  More importantly, his description of events shows his injuries were not a direct result of armed conflict.

3.  Regrettably, in view of the circumstances in this case there is insufficient evidence to grant him 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)                                         AR20140003486



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ABCMR Record of Proceedings (cont)                                         AR20140003486



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