IN THE CASE OF:	  

		BOARD DATE:	  14 May 2015

		DOCKET NUMBER:  AR20140009718 


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 reconsideration of his previous request to correct item 10a of his DA Form 199 (Physical Evaluation Board (PEB) Proceedings) to show his back injury was combat-related.  Additionally, he requests correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to reflect the same.

2.  The applicant states:

   a.  his DA Form 199, item 10a, should be corrected to reflect "The Soldier's retirement is based on a disability 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 while simulating war"; and

   b.  his request for reconsideration is based on incorrect information contained in the "Discussions and Conclusions" portion of the decisional document.  As a result, the applicant realized he did not provide enough information for the Board to fully understand the condition that his unit was in when his injury occurred in 1997. 

3.  The applicant provides:

* a self-authored statement
* Excerpts from Field Manual 6-50 (Tactics Techniques and Procedures for a Field Artillery Battery)
* High Mobility Multi-Purpose Wheeled Vehicle (HMMWV) Specifications
* M2 Aiming Circle Specifications
* M-35A3 Specifications

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120016319, on 4 June 2013.

2.  The applicant provides excerpts from an FM 6-50.  These excerpts were not previously reviewed by the ABCMR; therefore, they are considered new evidence and as such warrant consideration by the Board.

3.  Having prior enlisted service, on 14 August 2003, the applicant was appointed in the Army National Guard in the rank/grade of major in area of concentration 13A (Field Artillery).

4.  His record contains a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 16 July 1997, which shows while on active duty for training at Fort Carson, CO, he injured/strained his back muscles while crawling through a HMMWV during a hasty move.  The injury was incurred in the LOD and no formal LOD investigation was required.  In a sworn statement, dated 21 July 1997, the applicant claimed to have injured his back as a result of crawling through from the front of the vehicle to the back and then trying to orient himself while the vehicle was moving.

5.  Orders Number 352-075, State of Wyoming, Adjutant General's Office, Cheyenne, WY, dated 18 December 2003, ordered the applicant to active duty in support of Operation Iraqi Freedom for the period 3 to 6 January 2004.  These orders were subsequently amended by Orders Number 355-041 which amended the period from 3 January 2004 to 1 January 2005.

6.  A review of his available medical records shows he was seen on multiple occasions for back pain throughout the period October 2004 through April 2005.  A DA Form 2173, dated 11 November 2004 shows while he was deployed to Kuwait, he experienced long-term back pain following a section movement from Camp Arifjan to Camp Buehring.  The applicant sought treatment after 30 days and his magnetic resonance imaging showed he had bulging disks in his lower back.  He was prescribed physical therapy for treatment.  His injury was incurred in the LOD while on active duty; however, no formal LOD investigation was required.

7.  On 26 April 2005, he received a temporary profile for back pain.  On 29 June 2005, the applicant requested to be recalled to active duty to receive medical treatment for injuries incurred while mobilized.

8.  On 12 July 2005, the applicant was ordered to active duty to participate in the Reserve Component Medical Holdover Medical Retention Processing Program for completion of medical care and treatment.

9.  On 3 October 2007, a formal Physical Evaluation Board (PEB) rated him as follows:

* spinal fusion, Department of Veterans Affairs (VA) code 5241, 10 percent
* arthritis, degenerative, right (dominant) shoulder, VA code 5003, 0 percent

10.  The PEB found him physically unfit and recommended a combined rating of 10 percent.  He was advised of his options with regard to accepting disability severance pay and forfeiting his Reserve retirement or being placed in an inactive Reserve status and receive retired pay at age 60 by forfeiting disability severance pay.

11.  The applicant's DA Form 199 shows:

   a.  Item 8e (In LOD in time of national emergency or after 14 September 1978) is marked "Y" (Yes).

   b.  Item 10a states "The Soldier's 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 defined by law."

   c.  Item 10c states "The disability did not result from a combat-related injury as defined in Title 26, [U.S. Code], section 104." 

12.  On 20 November 2007, the applicant was honorably discharged due to disability with severance pay.

13.  On 10 August 2010, the Physical Disability Review Board (PDRB) reviewed the facts and circumstances surrounding the applicant's discharge and determined the regulations or guidelines relied upon by the PEB were inconsistent with the application of the VA Schedule for Rating Disabilities (VASRD) in effect at the time of adjudication.

14.  The PDRB recommended modification of the PEB findings which enabled him to receive a combined 30 percent disability rating and a re-characterization of his discharge to reflect a permanent disability retirement, effective the date of his prior medical discharge.

15.  The PDRB did not recommend changing item 10 of the applicant's                 DA Form 199.

16.  On 4 August and 20 October 2011, the Combat-Related Special Compensation (CRSC) Branch, U.S. Army Human Resources Command, Fort Knox, KY, denied the applicant's requests for CRSC.

17.  The PDBR's recommendations were accepted and the applicant's separation was re-characterized as a disability retirement.  On 8 February 2012, he was issued a DD Form 215 (Correction to DD Form 214) showing he was separated due to a permanent disability and that his name was placed on the Permanent Disability Retired List.

18.  The applicant provides a self-authored statement in which he states:

   a.  Reference the Discussion and Conclusions section, item 5 on page 7 of the decisional document which states:  "By his own admission in a sworn statement, the applicant states his back injury occurred while in lane training at Fort Carson, CO.  His condition manifested itself in the line of duty, but was not caused by combat or an instrumentality of war.  Crawling inside a HMMVEE is not simulating war or instrumentality of war.  The fact that a condition was incurred or aggravated in the line of duty not in a time of war or national emergency is not sufficient to change the findings of the PEB."

   b.  His original back injury happened in 1997 in a combat training environment simulating war.  His sworn statement that during Readiness Training Brigade (RTB) Lanes Training, he was required to make a hasty move is accurate.  The RTB was the unit that evaluated his unit during lanes training.  "Lanes Training" refers to Combat Lanes Training per Field Manuals and other pertinent Army doctrine of the period.  His unit, Battery B, 1st Battalion, 157th Field Artillery, was conducting live fire artillery training as part of battalion-level collective training.  He was the executive officer of the howitzer battery.

   c.  The condition of the unit was tactical, during daylight with camouflage netting deployed and vehicles arranged to minimize exposure and blend with terrain.  The unit included approximately 25 vehicles including M-109 A-5 self-propelled 155mm howitzers, M-35 trucks, and various HMMWVs.  All personnel had their assigned weapons and chemical masks.  The howitzers were engaged in live fire of high explosive munitions as missions were requested by the battalion headquarters.

   d.  The M998 HMMWV is a four-wheel drive military vehicle produced by AM General.  It is a tactical vehicle that has largely supplanted the roles originally performed by the original Jeep and older military light utility vehicles.  His HMMWV was a high-back or cargo-backed configuration.  He had the bulkhead removed and the canvas rolled up in a manner that allowed him to reach from the front compartment to the rear cargo compartment.  This HMMWV was configured with an AN-VRC radio and was the primary platform from which he commanded the activities of the artillery firing battery.  In this role the HMMWV was a system of combat systems and an instrumentality of war.

   e.  The "hasty move" that they made was in response to an opposing force (OPFOR) attack on their position.  The OPFOR employed smoke grenades and grenade simulators and engaged his unit with small arms (blank ammunition).  His unit then responded appropriately by firing back and moving to their alternative position area in a "hasty move."  Their main objective in response to an attack is to preserve the mission capability of the unit by moving to a pre-designated alternative position area. 

   f.  As the executive officer, he was the highest ranking individual in the perimeter area.  As a trained field artillery officer, his first responsibility was to begin the movement of all mission-essential equipment and personnel from the attacked area by issuing the "march order."  His second responsibility was to recover and safeguard the M2 Aiming Circle, (a mission critical instrument) following the march order.

   g.  The M2 Aiming Circle is a fragile, mission-essential piece of combat equipment.  The M2 Aiming Circle is used to transfer common direction to six howitzer sections in the cannon battery.  The M2 Aiming Circle as they used it on the day of his injury was an instrumentality of war.

   h.  He ordered his HMMWV driver to take him to the location of the M2 Aiming Circle, which was several hundred meters away.  He secured the Aiming Circle and brought it to the vehicle, the cover was on the instrument and the instrument was still connected to the tripod.  He slid the aiming circle assembly through the passenger door, between the seats of the front compartment into the rear component of the vehicle.  He laid it down as carefully as possible while quickly entering the vehicle.  While facing backward in his seat, he told the driver to "go."
   
   
   i.  The M2 Aiming Circle is a sensitive instrument that requires calibration if it suffers shock, he was being careful not to let the instrument get jarred or impacted while the HMMWV was getting to the main road.  He was trying to safeguard it while it was lying on the floorboard of the rear compartment of the high-back HMMWV as they drove out of the position area.  Still facing backward in his seat and reaching to the back compartment of the HMMWV he attempted to cradle the aiming circle while trying to push it more completely into the rear compartment while he was trying to reposition and safeguard the M2 Aiming Circle while the vehicle was moving on uneven terrain.  This leaning and reaching is what he meant by "crawling through the HMMWV."  He was wearing his Kevlar helmet, load bearing equipment, and gas mask.  As a result of this hasty movement and the care he was taking to protect the Aiming Circle, he twisted his body in an awkward way as the vehicle lurched forward over bumpy terrain.  He remembers being in pain but his adrenalin was flowing and he really did not realize how much it hurt at the time.

   j.  The injury occurred in the conduct of his duty during an active duty training event that simulated war.  He spent three days in pain before he sought treatment at a medical facility.  He never expected this issue to be life changing, but he did take several months to recover from this incident in 1997.  He did not have significant pain or loss of mobility between 1997 and 2004; the injury was not mobility limiting until 2004.

   k.  In 2004, he sought medical attention three weeks after sustaining an injury in Kuwait.  In 2004, Kuwait was designated a combat zone, he was deployed for a combat mission and received combat pay.  He was moving tactical equipment including weapons in weapon racks (M-16A2 and M-9) when the injury occurred. The movement was from Camp Arifjan to Camp Buehring, Kuwait and both camps were temporary deployment camps in the rear area of operations of Operation Iraqi Freedom.  His mission was to set up and establish forward deployment operations by rebuilding Camp New York 12km south of the Iraq border in support of onward movement of tactical units.  Moving this equipment involved loading it into a tactical 2 and a half ton truck, the M-35 A-3.  The M-35 is specified and intended for service in combat.  Each piece of equipment he was moving especially the weapons are deemed an instrumentality of war.

   l.  He understands that there are countless heroic ways that many brave fellow Soldiers have sustained injuries, and he does not want to elevate the conditions of his injuries in any manner that reduces the significance of wounding resulting from combat action.  Ultimately, he believes his injuries meet the criteria of "combat related" as written because he was first in a combat training environment simulating war in 1997 when his injury was documented as occurring in the LOD.  The second more debilitating occurrence of this same back injury happened in 2004, in a combat zone, and he was only there as a result of the War on Terrorism and Operation Iraqi Freedom as documented on his orders.

   m.  In conclusion, he requests reconsideration of the previous findings dated   5 June 2013.  He requests his DA Form 199, item 10A be corrected to reflect, "The Soldier's retirement is based on disability received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war incurred in the line of duty while simulating war." 

19.  Title 26, U.S. Code, Section 104 states, in pertinent part, that 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. 

20.  Army Regulation 635-40 (Personnel Separations - Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-19j, 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 an injury or disease received in the LOD 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.

          (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 LOD during a period of war as defined by law.  

   c.  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.

21.  The U.S. Army Physical Disability Agency has established that:

     a.  for an injury sustained from an instrumentality of war to be designated as such, it must have been incurred during a period of war defined by law;  

     b.  "incurred" means the LOD condition had its medical origin while the Soldier was in the combat zone; and

     c.  conditions that have been diagnosed or determined to have had their inception prior to deployment to a combat zone are normally not considered to have been incurred in the combat zone even if the condition may appear worse if first diagnosed after deployment.

22.  Department of Defense Instruction 1332.38 (Physical Disability Evaluation) defines the term under conditions simulating war, in general, as disabilities resulting from military training, such as war games, practice alerts, tactical exercises, airborne operations, leadership reaction courses; grenade and live fire weapons practice; bayonet training; hand-to-hand combat training; rappelling; and negotiation of combat confidence and obstacle courses.  It does not include physical training activities, such as calisthenics and jogging or formation running and supervised sports.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for reconsideration of his earlier petition has been carefully examined, evaluated, and considered.  The applicant contends that the entry in block 10 of his DA Form 199, dated 1 October 2007, should be corrected to read "the Soldier's retirement is based on disability received in the LOD as a direct result of armed conflict or caused by an instrumentality of war incurred in the LOD while simulating war."  He further requests his DD Form 214 be corrected to reflect the same.

2.  The evidence of record shows while on active duty for training at Fort Carson, CO, in July 1997, the applicant injured/strained his back muscles while crawling through a HMMWV during a hasty move.  In a sworn statement, dated 21 July 1997, the applicant claimed to have injured his back as a result of crawling through from the front of the vehicle to the back and then trying to orient himself while the vehicle was moving.

3.  The applicant states it took several months to recover from the incident; however, he did not have significant pain or loss of mobility between 1997 and 2004, and the injury was not mobility limiting until 2004.  

4.  The applicant was ordered to active duty in support of Operation Iraqi Freedom in January 2004.  A DA Form 2173, dated 11 November 2004, shows that while he was deployed to Kuwait, he experienced long-term back pain following a section movement from Camp Arifjan to Camp Buehring.  The applicant states he was moving tactical equipment when the injury occurred.  Moving the equipment involved loading it into a tactical truck specifically intended for service in combat. 

5.  The applicant contends he was injured by an instrumentality of war related to the aftereffects of a pre-existing back injury incurred while performing his duties as the executive officer of a howitzer battery conducting lane training.  After approximately 7 years, his back condition worsened while moving equipment in Kuwait specifically intended for service in combat.  

6.  The applicant was subsequently referred to a PEB and later to the PDRB which ultimately resulted in the applicant receiving a combined 30 percent disability rating and a re-characterization of his discharge to reflect a permanent disability retirement.  However, the PDRB did not recommend changing item 10 of the applicant's DA Form 199.

7.  While it is clear that he disagrees with the PDRB and the ABCMR's previous decisions, he has not provided convincing evidence or argument to amend his DA Form 199.  The evidence of record confirms that although the applicant's back injury occurred while he was serving on active duty and may be service connected, there remains insufficient evidence to show his injury was caused by an instrumentality of war and/or is combat related.  In light of the foregoing, there remains insufficient evidence to support correcting item 10a of the applicant's DA Form 199 or his DD Form 214.  

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 to amend the decision of the ABCMR set forth in Docket Number AR20120016319, dated 4 June 2013.



      _______ _   __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)                                         AR20140009718



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ABCMR Record of Proceedings (cont)                                         AR20140009718



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