BOARD DATE:	  12 March 2015

		DOCKET NUMBER:  AR20140012328 


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, in effect, correction of her:

	a.  DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 3 October 2008, to show her disability resulted from a combat-related injury as defined in Title 26, U.S. Code, section 104.

	b.  retirement orders, dated 20 October 2008, to show her disability was caused by an instrumentality of war incurred in the line of duty (LOD) during a period of war as defined by law.

2.  The applicant states:

	a.  She was fit for duty and due to what she experienced on active duty, she was medically retired.

	b.  The record is in error because she was not properly briefed during the medical board or permanent retirement process nor did she understand the documentation that she signed stating that she agreed to the recommendations.
 
	c.  She was medically discharged due to injuries that occurred while training for combat.  These issues started with the training involving rappelling from the tower.  She was harassed and traumatized by the treatment she received after spraining and fracturing her ankles.  Her commanding officers called her names and continued to command her to perform tasks that caused further injury.  Currently, she experiences problems with her legs, knees, back, and hips which impact her daily living.  She is not the person she was before her enlistment in the Army.

	d.  Although she was treated poorly, she still pushed and tried to complete training.  She was later transferred to the Physical Training and Rehabilitation Program (PTRP) where she was supposed to rehabilitate and return to training.  The unit experienced several changes in leadership and during the changes poor treatment of the Soldiers who were injured continued.  Due to the command to stand 20 minutes with her weapon over her head, she experienced back spasms and had to be given 10 treatments of electrical shocks.  She went through hell trying to recover and when she was retired she did not notice the medical evaluation board (MEB) recommendation did not connect the whole medical discord to her discharge.

	e.  After her discharge, she found out her base was under a Congressional inquiry for the treatment of Soldiers in training.  She has nightmares, insomnia, emotional instability, and physical issues that impact her every day.  Sometimes the pain feels so unbearable and makes her suicidal.  She also tries to dismiss thoughts of hurting others because that is not going to help her situation.

	f.  She was on crutches for 6 months.  She still has problems with walking, standing, and sitting for long periods of time.  She can't perform sexually and that has cost her two marriages.

	g.  She went in as a "fit for duty" Soldier and came out "unfit for duty" through no fault of her own.

3.  The applicant provides:

* PTRP physical profile
* DA Form 4856 (Developmental Counseling Form)
* DA Form 199
* service medical records
* Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim)
* MEB narrative summary
* retirement orders, dated 20 October 2008
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

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 2 April 2008 for 5 years in pay grade E-4.  She completed her training and was awarded military occupational specialty 68K (medical laboratory specialist).  

3.  On 27 August 2008, an MEB diagnosed her with:

* chronic right hip pain due to healing proximal femoral stress fracture
* chronic left hip pain due to overuse
* chronic bilateral knee pain due to proximal tibial metaphysical stress fractures
* chronic left wrist pain due to flexor tendonitis
* chronic right wrist pain
* chronic lower back pain

4.  The MEB narrative summary stated:

	a.  In April 2008 while in basic training, the applicant was crawling on rocks and began to experience pain in both knees.

	b.  She had chronic lower back pain beginning in April 2008.  In that month she was required to carry a weapon overhead for long periods of time and also had to complete a road march.  Afterward she experienced progressively-worsening lower back pain.

	c.  She complained of hip pain beginning in June 2008.  In that month she was engaged in physical training and long exercises.  Afterward she began to experience progressively-worsening hip pain.

	d.  She complained of hand pain beginning in April 2008.  In that month she was involved in weapons qualification.  Afterward she experienced pain in her hands radiating to her wrists, which has remained. 

5.  The MEB recommended referral to a PEB.

6.  On 3 October 2008, a PEB found her physically unfit due to:

* chronic bilateral knee pain due to proximal tibial metaphysical stress fractures
* healing proximal femoral stress fracture of the right hip
* chronic left hip pain due to overuse
* chronic left (non-dominant) wrist pain due to flexor tendonitis
* chronic lower back pain without history of trauma

7.  The PEB determined the medical diagnosis of chronic right wrist pain was not unfitting and not rated.  The PEB recommended a 50-percent disability rating and placement on the Temporary Disability Retired List (TDRL).

8.  Her DA Form 199 also states her 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 incurred in the LOD during a period of war as defined by law, and the disability did not result from a combat-related injury as defined in Title 26, U.S. Code, section 104.

9.  On 7 October 2008, the applicant concurred with the PEB findings and waived a formal hearing.

10.  On 17 October 2008, the U.S. Army Physical Disability Agency approved the PEB's findings.

11.  Headquarters, U.S. Army Basic Combat Training Center of Excellence, Fort Jackson, SC, Orders 294-1321, dated 20 October 2008, retired the applicant on 22 October 2008 because of physical disability and placed her on the TDRL effective 23 October 2008.  These orders state:

	a.  "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 incurring in the line of duty during a period of war as defined by law:  No."

	b.  "Disability resulted from a combat related injury as defined in 26 USC 104:  No."

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 PEB determined the applicant's disabilities did not result from a combat-related injury.  She concurred with the PEB findings on 7 October 2008.

2.  She now contends she was not properly briefed during the medical board or permanent retirement process nor did she understand the documentation she signed stating that she agreed to the recommendations.  However, there is no evidence and the applicant provided no evidence to support this contention.

3.  The applicant requests correction of her DA Form 199 and retirement orders to show her disability resulted from a combat-related injury.

4.  Medical evidence of record shows:

	a.  In April 2008, while in basic training, the applicant was crawling on rocks and began to experience pain in both knees.

	b.  Her chronic lower back pain began in April 2008.  In that month she was required to carry a weapon overhead for long periods of time and she also had to complete a road march.  Afterward she experienced progressively-worsening lower back pain.

	c.  She complained of hip pain beginning in June 2008.  In that month she was engaged in physical training and long exercises.  Afterward she began to experience progressively-worsening hip pain.

	d.  She complained of hand pain beginning in April 2008.  In that month she was involved in weapons qualification.  Afterward she experienced pain in her hands radiating to her wrists, which has remained.

5.  There is no evidence showing her medical conditions were combat-related or incurred under conditions simulating war.

6.  Her remaining contentions were carefully considered.  However, there is no evidence in the available records and the applicant has not provided sufficient evidence showing her 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 the applicant's DA Form 199 or retirement orders.



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)                                         AR20140012328



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ABCMR Record of Proceedings (cont)                                         AR20140012328



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