BOARD DATE: 25 November 2014
DOCKET NUMBER: AR20140004826
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 retirement orders to show that his 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.
2. The applicant states he was, at the time of his injuries, on duty in combat on guard in Iraq in full combat gear in a 15 foot tower. After the shift change, he was climbing down the tower steps in the dark and missed a step and fell about 12 feet to the ground. He goes on to state that he knows he should not get a Purple Heart, but he should get combat injury in the line of duty. He also states that at the time he did not know he would be entitled to additional benefits due to a combat injury.
3. The applicant provides copies of his retirement orders, his Medical Evaluation Board (MEB) Narrative Summary (NARSUM), documents from his medical records, and his Department of Veterans Affairs (VA) Rating Decision.
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 on 18 January 2007. He completed one-station unit training as an infantryman.
3. He deployed to Iraq during the period 20071126 20090101. On
7 November 2008 at approximately 2100 hours, he fell down the steps of a guard tower. He was seen by medical personnel and prescribed Percocet and Naproxen. His injury was deemed a non-battle injury that was not battle related.
4. He has not provided and the available records do not contain his Physical Evaluation Board (PEB) Proceedings. However, he has provided a copy of his MEB NARSUM, which shows he was diagnosed as having lumbar spondylosis and he was deemed unfit for retention.
5. On 24 July 2011, he was honorably retired under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separations), chapter 4, by reason of disability, permanent (enhanced) with a 40 percent (%) disability rating. He served 4 years, 6 months and 7 days of active service. His retirement orders indicate his disability was not based on injury or disease received in the line of duty as a direct result of enemy conflict or caused by an instrumentality of war, and his disability did not result from a combat-related injury as defined in Title 26, U.S. Code (USC), section 104.
6. On 27 July 2011, he was granted a 60% service-connected combined disability rating and on 9 May 2013, he was granted a 100% disability rating effective 5 October 2012.
7. Title 26, U.S. Code, section 104 provides special rules for combat-related injuries. It provides, in pertinent part, that 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 contention that his medical condition was sustained while participating in combat operations has been carefully considered. However, the evidence fails to show his condition was the result of a combat-related action. Without evidence to establish a direct, causal relationship to the applicants disability to war or the simulation of war, there is an insufficient basis in which to grant his request.
2. While the applicant was in a combat zone when he missed a step on the stairs while exiting a guard tower and fell down the steps and injured himself, there is no evidence of enemy activity associated with that incident. It appears that it was simple accident and was not related to any criteria associated with a combat-related injury.
3. Therefore, in the absence of evidence to show otherwise, there appears to be no basis to grant his 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) AR20140004826
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