IN THE CASE OF:	  

		BOARD DATE:	  10 February 2015

		DOCKET NUMBER:  AR20140009392 


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 item 10a (The Soldier's retirement is not based on disability from 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 incurring in LOD during a period of war as defined by law.) of his DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 25 October 2005, to show his disease and disability were a direct result of armed conflict or caused by an instrumentality of war and incurred in the LOD during a period of war as defined by law.
 
2.  The applicant states:

	a.  His asthma condition and back injury were incurred in the LOD while deployed to Iraq during the period 30 May 2003 to 15 July 2003.

	b.  The disease and injury were a direct result of armed conflict or caused by an instrumentality of war and incurred in the LOD during a period of war as defined by law.

	c.  He injured his back from a fall from a military trailer while conducting cargo operations at a trailer transfer point in Iraq.

	d.  He was diagnosed with asthma upon his return from deployment and he was unable to resume regular physical training activities due to coughing and shortness of breath.  No symptoms were present prior to his deployment.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 215 (Correction to DD Form 214)
* DA Form 2173 (Statement of Medical Examination and Duty Status)
* medical evaluation board (MEB) proceedings
* DA Forms 199, dated 25 October 2005 and 12 November 2008
* medical records

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 15 November 2002 and trained as a cargo specialist.  He served in Kuwait/Iraq from 30 April 2003 to 15 July 2003.

3.  He provided a DA Form 2173, dated 8 July 2004, which states he injured his back when he fell out of a trailer in Iraq on or about May 2003.  This form states the injury was incurred in the LOD.

4.  In June 2005, an MEB diagnosed him with the following conditions that were deemed to be medically unacceptable:

* asthma, moderate, persistent
* classic migraine
* mid-spine pain secondary to facet dysfunction
* mechanical low back pain
* cervicalgia
* major depressive disorder

5.  The MEB recommended his referral to a PEB.

6.  On 25 October 2005, a PEB found him physically unfit due to:

* asthma well controlled on present daily medications
* chronic neck and back pain with normal bone scan and normal cervical spine and lumbar spine radiographs

7.  The PEB recommended his placement on the Temporary Disability Retired List (TDRL).

8.  Item 10a of his DA Form 199, dated 25 October 2005, states his retirement is not based on disability from injury or disease received in the LOD as a direct result of armed conflict or caused by an instrumentality of war and incurring in the LOD during a period of war as defined by law.  Item 10c of this form states the disability did not result from a combat-related injury as defined in Title 26, U.S. Code, section 104.

9.  On 4 November 2005, he concurred with the PEB findings and waived his right to a formal hearing.

10.  He retired on 3 January 2006 by reason of temporary disability and was placed on the TDRL the following day.

11.  U.S. Army Physical Disability Agency Orders D326-06, dated 21 November 2008, show he was removed from the TDRL and permanently retired (60 percent).  These orders state:

	a.  "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 period of war as defined by law:  Not Applicable."

	b.  "Disability resulted from a combat-related injury as defined in 26 USC 104:  Not Applicable."

12.  Title 26, U.S. Code, section 104 states 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 under conditions simulating war, or caused by an instrumentality of war.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests correction of item 10a of his DA Form 199, dated 25 October 2005, to show his disease and disability were a direct result of armed conflict or caused by an instrumentality of war and incurred in the LOD during a period of war as defined by law.

2.  The DA Form 2173 he provided shows he injured his back when he fell out of a trailer in Iraq (a combat zone) on or about May 2003.

3.  The PEB determined his disabilities did not result from a combat-related injury and he concurred with the PEB findings and recommendation on 4 November 2005.

4.  There is no evidence in the available records and he has not provided sufficient evidence which shows his disabilities were incurred as a direct result of armed conflict, while engaged in extra hazardous service under conditions simulating war, or caused by an instrumentality of war.  Therefore, there is insufficient evidence with which to amend his DA Form 199.

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 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)                                         AR20140009392



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140009392



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1