IN THE CASE OF:
BOARD DATE: 9 April 2015
DOCKET NUMBER: AR20140013934
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 his retirement orders, dated 18 June 2008, to show:
a. his disability was based on 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 period of war as defined by law and
b. his disability resulted from a combat-related injury as defined in Title 26, U.S. Code, section 104.
2. The applicant states, in effect:
a. His retirement orders state his disability was not based on an 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 war period as defined by law. This should be "Yes."
b. His retirement orders state his disability did not result from a combat-related injury as defined in Title 26, U.S. Code, section 104. This should be "Yes."
3. The applicant provides no additional evidence.
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 Army National Guard (ARNG) on 7 August 1974.
3. His medical evaluation board is not available for review.
4. On 19 January 2007, a physical evaluation board (PEB) found him physically unfit due to:
* vascular dementia with depressed mood status post-cerebrovascular accident in March 2004
* coronary artery disease
5. The PEB recommended his placement on the Temporary Disability Retired List (TDRL).
6. Item 10 (If Retired Because of Disability, the Board Makes the Recommended Finding That) of his DA Form 199 (PEB Proceedings), dated 19 January 2007, 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
* the disability did not result from a combat-related injury as defined in Title 26, U.S. Code, section 104
7. On 23 January 2007, he concurred with the PEB findings and waived his right to a formal hearing.
8. On 18 February 2007, he was discharged from the ARNG in the rank of sergeant first class and placed on the TDRL.
9. On 2 June 2008, a PEB found him physically unfit due to vascular dementia following a cerebrovascular accident. The PEB recommended a 50-percent disability rating and permanent retirement. He concurred with the PEB findings on 5 May 2008.
10. On 17 June 2008, the U.S. Army Physical Disability Agency (USAPDA) approved the formal PEB's findings.
11. USAPDA Orders D170-05, dated 18 June 2008, show he was removed from the TDRL and permanently retired with a 50-percent disability rating. 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 LOD during a war period as defined by law: Not Applicable."
b. "Disability resulted from a combat related injury as defined in 26 USC 104 [Title 26, U.S. Code, section 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 PEB determined the applicant's disability was not based on 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 and his disability did not result from a combat-related injury as defined in Title 26, U.S. Code, section 104. He concurred with the PEB findings and recommendation on 23 January 2007.
2. There is no evidence in the available records and the applicant has not provided sufficient evidence showing his disability was 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 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) AR20140013934
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ABCMR Record of Proceedings (cont) AR20140013934
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