IN THE CASE OF:	

		BOARD DATE:  31 March 2015	  

		DOCKET NUMBER:  AR20140008243


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 separation order 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 incurred in the LOD during a war period as defined by law during his service in Kosovo not Oklahoma.

2.  The applicant states:

   a.  He met the two qualifications to prove his case because his High Mobility Multipurpose Wheeled Vehicle (HMMWV) was an instrumentality of war and his service in Kosovo was the war period as defined by law.
   
   b.  He was stationed at Camp Monteith and at a Russian checkpoint leading into the Ground Safety Zone in the Republic of Kosovo in May 2001, where he periodically dealt with snipers, landmines, live firing, and live ordnance.
   
   c.  Late one night while in a convoy returning from the Russian checkpoint back to Camp Monteith, his HMMWV broke down in a terrorist town.
   
   d.  After he and other Soldiers pushed the HMMWV to the top of a hill, he felt a pop in his back making it impossible for him to walk or stand and causing him to lose urinary and fecal control immediately and physical and motor ability through today.
   
   e.  His disability was determined not in the LOD although "military.com" defines an instrumentality of war as a "vehicle, vessel, or device designated primarily for military service and intended for use in such service at the time of the occurrence or injury" and he was permanently disabled pushing a military HMMWV while conducting a military convoy to minimize the threat of the local populace awakening and potentially kidnapping his men or himself.
   
   f.  He does not know or understand why his injury is falsely shown as resulting from a car accident in Oklahoma when his medical records were clearly [created] in Landstuhl, Germany.  This is supported by the testimony of a fellow lieutenant.

3.  The applicant provides:

* self-authored statement
* three-page document (partially legible)
* email from the Office of Senator Jeanne Shaheen with attached separation and amendment orders
* United States Senate letter with a 14 page attachment

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 was appointed as a Reserve commissioned officer and entered active duty in the Regular Army on 29 May 1999.  He held and served in area of concentration 13A (Field Artillery-General.)

3.  His official military personnel file contains a DA Form 2173 (Statement of Medical Examination and Duty Status) completed on 13 August 1999.  It shows that, on 25 July 1999, while he was stopped at an intersection as a passenger in a vehicle, the vehicle was struck from behind.  He sustained "neck, muscular/skeletal pain and strain," and this injury was determined to be in the LOD on 19 August 1999.

4.  A second DA Form 2173 completed on 18 January 2002, shows that, on 
7 June 2001, while participating in a training mission in Kosovo, the applicant was pushing a HMMWV up a hill when he felt a pop, sustaining a back injury.  His injury was considered to have been in the LOD.

5.  On 24 July 2002, an informal Physical Evaluation Board (PEB) convened at Fort Sam Houston, Texas, and found the applicant's conditions prevented him from performing the duties required of his grade and specialty and determined he was physically unfit due to various conditions. The PEB rated him under VA Schedule Rating for Disabilities code 5293 due to chronic back pain and code 7332 for fecal incontinence with frequent slight soilage with borderline abnormal manometry.

6.  The PEB recommended the applicant's temporary retirement by reason of disability at a combined rating of 30 percent.  The DA Form 199 (PEB Proceedings) contains the following entries in item 10 (If Retired Because of Disability, the Board Makes the Recommended Finding That):

* the member's retirement is not based on disability from injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurring in the line of duty during a period of war as defined by law
* evidence of record reflects the Soldier was not a member or obligated to become a member of an Armed Force or a Reserve thereof, or the National Oceanic and Atmospheric Administration or the U.S. Public Health Service on 24 September 1975
* the disability did not result from a combat-related injury as defined in Title 26, U.S. Code, section 104

7.  On 26 July 2002, the applicant concurred with the findings and recommendations of the PEB and waived his right to a formal hearing of his case.  On 29 July 2002, his PEB was approved by the U.S. Army Physical Disability Agency on behalf of the Secretary of the Army.

8.  On 27 August 2002, Headquarters, 3rd Infantry Division and Fort Stewart, Georgia, published Orders Number 239-0004, directing the applicant's release from assignment and duty because of physical disability incurred while entitled to basic pay on 5 October 2002.  The orders placed him on the Temporary Disability Retired List in the rank and grade of first lieutenant/O-2 effective 6 October 2002.  Page 2 of this order stated:
* "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 war period as defined by law:  No"
* "Disability resulted from a combat-related injury as defined in Title 26, U.S. Code, section 104:  No"

9.  Accordingly, the applicant was honorably retired from active duty by reason of physical disability on 5 October 2002 in accordance with paragraph 4-24b(2) of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  His DD Form 214 shows in:

* item 26 (Separation Code), "SFK"
* item 28, "DISABILITY, TEMPORARY"

10.  The evidence in this case includes a Department of Veterans Affairs rating decision, dated 28 February 2013, that shows he was granted a service connected combined disability rating at 70 percent.

11.  Army Regulation 635-40 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.

12.  Army Regulation 635-40 states that 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 which is unfitting was caused by an instrumentality of war and was incurred in the line of duty during a period of war.  A determination that a disability was caused by an instrumentality of war and incurred in the line of duty 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.

13.  Army Regulation 635-40 states the term "instrumentality of war" refers to a device primarily designed 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.  
14.  Paragraph 4-19 of Army Regulation 635-40 states that 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:

	a.  The disability resulted from injury or disease received in the line of duty 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 –

		(1)  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

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

	b.  The disability is unfitting, was caused by an instrumentality of war, and was incurred in the line of duty during a period of war as defined by law.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his retirement order should be corrected to show his disability resulted from an injury or disease received in the line of duty as a direct result of an armed conflict or caused by an instrumentality of war and incurring in line of duty during a period of war as defined by law.  There is insufficient evidence to support this claim.

2.  The evidence of record confirms the applicant was appropriately evaluated by a PEB which found him unfit for continued service based on injuries that did not result from an injury or disease received in the line of duty as a direct result of an armed conflict or caused by an instrumentality of war and incurring in line of duty during a period of war as defined by law.  Further he admits that he was returning to camp when he stepped out of his HMMWV to push it up a hill after it broke down to prevent a potential kidnapping.  Although he was in theater in Kosovo during this event, the injury he incurred subsequent to the breaking down of the truck while he was helping to push it up the hill was not a direct result of an armed conflict or caused by an instrumentality of war.  Therefore, there is no basis upon which to grant the applicant's claim.


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)                                         AR20140008243





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ABCMR Record of Proceedings (cont)                                         AR20140008243



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