IN THE CASE OF:	  

		BOARD DATE:	  25 November 2014

		DOCKET NUMBER:  AR20140003668 


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 his disability was a combat-related injury which was caused by an instrumentality of war.

2.  The applicant states:

	a.  There is an approved line of duty (LOD) investigation as proof regarding the injury during mobilization.

	b.  He believes this to be an oversight on the part of personnel filling out his "documents."

	c.  This is an important detail that affects his disability benefits.

	d.  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.

	e.  All medical documents, the LOD investigation, and various other documents clearly demonstrate his injury was due to an instrumentality of war.


3.  The applicant provides:

* DA Form 2173 (Statement of Medical Examination and Duty Status), dated 25 February 2009
* Medical Record Progress Notes, dated 3 March 2009
* LOD Investigation Approval, dated 24 March 2009
* DA Form 2173, dated 23 March 2009
* Memorandum, Subject:  Delegation to Act as Final Approval Authority for LOD Investigations, dated 9 July 2008
* DA Form 3349 (Physical Profile), dated 25 February 2009
* Medical Evaluation Board (MEB)-Medical Record Report, dated 
12 January 2011

CONSIDERATION OF EVIDENCE:

1.  With prior enlisted Army National Guard and U.S. Army Reserve (USAR) service, the applicant accepted an appointment in the USAR, on 24 April 2007, in the rank of warrant officer one (WO1).

2.  The applicant was ordered to active duty for mobilization in support of Operation Iraqi Freedom.  The orders state that he was to report to 1186 TC TML USA TRANS TML (W8JCCA), 31 Pecan Street, Jacksonville, Florida on 7 March 2008.  He was to report to Camp Shelby, Building 1001 Lee Avenue, Hattiesburg, Mississippi on 9 March 2008.  His orders were subsequently amended to show he was to report to Camp Shelby, Building 1001 Lee Avenue, Hattiesburg, Mississippi on 7 March 2008.

3.  The applicant's DA Forms 2173 shows he injured his back on 10 March 2008 while unloading a vehicle with unit equipment when he caught a wooden box falling from the vehicle at Camp Shelby, Mississippi.  His injury worsened during his deployment with day to day strenuous activity.

4.  The available evidence shows the applicant's dates of deployment to Kuwait/Iraq were from 22 April 2008 to 24 February 2009.

5.  Augusta Department of Veterans Affairs Medical Center Progress Notes, dated 3 March 2009, show he sustained his injury when he caught a 200 pound box while unloading a truck in Iraq (in effect, at Camp Shelby) in March 2008.

6.  An LOD Investigation was conducted into the applicant's injury and it was determined to have been incurred in the LOD.


7.  An MEB-Medical Record Report, dated 12 January 2011, shows the applicant was mobilized for deployment at the time of his injury.  He was at Camp Shelby, Mississippi preparing for deployment when he injured his back while trying to keep a crate from falling out of a vehicle.

8.  On 18 April 2012, Orders 109-0022 were published releasing the applicant from assignment and duty because of physical disability incurred while entitled to basic pay and under conditions that permitted retirement for permanent physical disability.  The orders show an effective date of 26 June 2012 and contain the following statements:

* 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 LOD during a period of war as defined by law: "NO"
* Disability resulted from a combat related injury as defined in 16 United States Code 104: "NO"

9.  The applicant's DD Form 214 shows he was honorably retired on 26 June 2012 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, due to disability, permanent (enhanced).

10.  Army Regulation 635-40 states a disability may be considered 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 was caused by an instrumentality of war and was incurred in the LOD during a period of war.  Paragraph 4-19 (Physical Evaluation Board decisions – common criteria) states in:

	a.  Paragraph 4-19j (Armed Conflict – Instrumentality of War), certain advantages accrue to Soldiers who are retired for physical disability and later return to work for the Federal Government when it is determined that the disability for which retired was incurred under specific circumstances.  These advantages concern preference eligible status within the Civil Service System (Title 5, USC, section 3501).  One of those situations is when the disability is unfitting, was caused by an instrumentality of war, and was incurred in the LOD during a period of war as defined by law. 

	b.  Paragraph 4-19k, disability pay is awarded by reason of a combat-related injury.  Within the meaning of Title 26, USC, 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.

	c.  Paragraph 4-19l, a Soldier may be performing extra hazardous service even if not directly engaged in combat.  Extra hazardous service includes but is not limited to the following activities:  Aerial flight duty, parachute duty, demolition duty, experimental stress duty, and diving duty.  Conditions simulating war include, but are not limited to, the following activities:  performance of tactical exercises such as the squad or platoon in the assault; airborne operations; leadership reaction courses; grenade and live fire weapons practice; bayonet training; hand-to-hand combat training; repelling; and negotiation of combat confidence and obstacle courses.  In block 10c of the DA Form 199, the board will record its determination of whether the injury was combat-related as defined by Title 26, USC, section 104. 

11.  Section II of the Glossary in Army Regulation 635-40 defines:

	a.  Combat-related injury as a personal injury or sickness that a Soldier incurs under one of the following conditions: as a direct result of armed conflict; while engaged in extra hazardous service; under conditions simulating war; or which is caused by an instrumentality of war.

	b.  Conditions simulating war as those circumstances of training so simulating conditions of war that a special personal risk attends the situation. The mere fact that training (calisthenics) was required, or that training (football) is sponsored by the military, does not equate with "conditions simulating war."

	c.  Instrumentality of war is 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.

12.  Title 26 USC, section 104, states 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.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.  His supporting evidence has been considered.  There is no instrumentality of war here that caused his back injury.  There are no parachute landings, no jumping in and out of a military tank that is unique to the military, and no diving equipment that is also unique to the military that caused his injury.  There is no evidence his back injury was caused by a vehicle, vessel, or device designed primarily for military service and intended for use in such service at the time of the occurrence of the injury.

2.  The applicant was mobilized, but he had not deployed to Kuwait/Iraq at the time that he sustained his back injury.  He was at Camp Shelby, Mississippi when he sustained his back injury on 10 March 2008.  He did not deploy until
22 April 2008.

3.  While the applicant's injury was incurred in the LOD, his disability cannot be classified as resulting from conditions simulating war.  Conditions simulating war are those circumstances of training wherein a special personal risk attends the situation.  The mere fact that a member injuries himself during training does not equate with "conditions simulating war."  The applicant could have sustained a similar injury had he not been in the military.

4.  The applicant's injury did not occur in a combat zone nor was it incurred during the performance of duty in combat-related operations as designated by the Secretary of Defense.  Therefore, he was discharged as a result of a disability that was not combat related.

5.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20140003668



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ABCMR Record of Proceedings (cont)                                         AR20140003668



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