IN THE CASE OF:	  

		BOARD DATE:	  28 May 2015

		DOCKET NUMBER:  AR20140016982 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his disability status as combat-related.

2.  The applicant states:

* he was improperly provided severance pay for a medical disability that should been identified as incurred in the combat zone
* such designation would enable him to receive benefits that are not taxable and not offset by the Department of Veterans Affairs
* the available evidence supports his contention that his anxiety disorder is the result of his two combat tours in Iraq and should be combat related
* he was provided with incorrect information on the ramifications of agreeing with the findings of his physical disability board (PEB)
* he agreed with the PEB's findings and recommendations without obtaining advice from a military lawyer

3.  The applicant provides:

* Letter from the U.S. Physical Disability Agency (USAPDA) to his Member of Congress
* DA Form 3947 (Medical Evaluation Board (MEB) Proceedings)
* DA Form 199 (PEB Proceedings) (Informal and reconsideration)
* Appeal of PEB memorandum DD Form 214 
* Chronological Records of Medical Care 
* Orders placing him on the Temporary Disability Retired List (TDRL)
* DA Form 199 (TDRL PEB)
* Removal from the TDRL orders
* Statements of support from family members 

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army on 18 February 1999 and he held military occupational specialty 88M (Motor Transport Operator). 

2.  He served through multiple reenlistments in a variety of assignments including Iraq from 5 May 2003 to 24 July 2004 and 16 July 2005 to 17 February 2006.  He attained the rank/grade of staff sergeant (SSG)/E-6. 

3.  In the summer of 2007, he was transferred from his unit, 62nd Transportation Company to the Warrior Transition Battalion, in Alaska.  He was then transferred to the Warrior Transition Unit at Madigan Army Medical Center in January 2008 due to a suicide attempt and Idiopathic Thrombocytopenic Purpura (ITP).   He was seen at the Behavioral Health Clinic where he reported: 

* he had no friends and he was mostly lonely and kept to himself
* he characterized his parents as gypsies and that he had moved 10 to 20 times throughout his childhood
* he noted various step-dads throughout his childhood and reported his parents were divorced and his father was in jail
* he left high school due to failure to attend and he worked in food, telemarketing, and laboring prior to the military
* he reported childhood sexual abuse prior to teenage years and he also reported physical abuse including being shocked by a prod
* he noted his attempted suicide by attempting to cut his wrists and that he did so while drunk
* he noted significant childhood and military trauma with significant life stressors, changes (income, death of significant other, career change, finances, and pain)

4.  On 15 December 2008, an MEB convened and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found that the applicant had the below medically acceptable or unacceptable conditions.  The MEB recommended his referral to a PEB.  The applicant was counseled and although the back page of his MEB Proceedings is not available for review with this case, he appears to have indicated he did not desire to remain on active duty.  He also appears to have agreed with the findings and recommendations of the MEB:
Diagnosis
Met Retention Standards
Did Not Meet Retention Standards
1.  Anxiety disorder

X
2.  Chronic ITP
X

3.  Borderline personality disorder 
X

4.  Cervical neck pain
X

5.  Headaches
X

5.  On 17 February 2009, an informal PEB convened and found the applicant's condition (anxiety disorder) prevented him from performing the duties required of his grade and specialty and determined he was physically unfit.  The PEB rated him under the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) as follows VASRD Code 9413 at 10 percent.  

	a.  The PEB noted he had anxiety disorder with elements of PTSD and borderline personality disorder that cannot be considered for rating purposes.  Onset of conditions is from childhood abuse.  He was a functioning Soldier with promotion to SSG/E-6 at normal intervals until his second tour in Iraq.  His       de-compensation began when he faced marital stress on top of combat stress when he returned from his second tour. 

	b.  The PEB also noted that the psychiatrist reports current symptoms as anxiety, nightmares, intrusive memories, sleep disruptions, and episodic suicidal thinking.  His squad leader reports the applicant performed reasonably well if left alone but he had memory problems and reacted with verbal aggression when questioned about his performance and tasks.  The EPTS (Existed Prior to Service) factors are undetermined.  "Specific combat stressors are not verified and onset of condition was after the Soldier returned from Iraq and therefore condition is not considered combat-related."  

	c   The PEB also considered his other medical conditions as listed on the MEB; however, these conditions were not found to be unfitting and therefore they were not rated.  The PEB recommended the applicant's separation with entitlement to severance pay if otherwise qualified.  He was counseled but did not concur.  He elected to "waive a formal hearing" and present a written rebuttal. He did demand a formal hearing and he did not request a regularly appointed counsel to represent him.  

6.  In his rebuttal, he indicated that he did not agree with the 10 percent rating and the statement that is related to combat.  He believed his rating should be 30 percent and he attached a letter from his psychiatrist to show the severity of his condition.  The statement, in the form of chronological records of medical care, dated 4 February 2009, essentially repeats his childhood issues and adds that following his admittance at Madigan, his symptoms were consistent with post-traumatic stress disorder (PTSD) and his military experiences appeared to be the primary focus of his traumatic recollections, reliving, avoidance, and hyper-arousal.  His diagnosis was as follows: 

* Axis I: PTSD
* Axis II: No diagnosis
* Axis III: MMPs
* Axis IV: Social isolation, career change, medical board, financial difficulty, and unit requirements
* Axis V: Global Assessment of Functioning is 60 

7.  On 17 February 2009, the PEB reconsidered his condition in light of the psychiatric documents he provides.  Again, the PEB rated him under the VASRD Code 9413 but assigned a rating of 30 percent.   

	a.  The PEB again noted he had anxiety disorder with elements of PTSD and borderline personality disorder that cannot be considered for rating purposes.  Onset of conditions is from childhood abuse.  He was a functioning Soldier with promotion to SSG/E-6 at normal intervals until his second tour in Iraq.  His de-compensation began when he faced marital stress on top of combat stress when he returned from his second tour.  The psychiatrist reports current symptoms as anxiety, nightmares, intrusive memories, sleep disruptions, and episodic suicidal thinking.  His squad leader reports the applicant performed reasonable well if left alone but he had memory problems and reacted with verbal aggression when questioned about his performance and tasks.  The EPTS factors are undetermined.  Specific combat stressors are not verified and onset of condition was after the Soldier returned from Iraq and therefore condition is not considered combat-related.  

	b   The PEB also considered his other medical conditions as listed on the MEB; however, these conditions were not found to be unfitting and therefore were not rated.  The PEB recommended the applicant's placement on the TDRL with reexamination in September 2010.  He was counseled and agreed with the PEB''s findings and recommendations.   

8.  The applicant's DA Form 199 contains the following entries in item 10 (If Retired Because of Disability, the Board Makes the Recommended Finding that):

* the Soldier'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
* the evidence of record reflects the Soldier was not a member or obligated to become a member of an Armed Forces or Reserve thereof, or the National Oceanic or Atmospheric Administration (NOAA) or the U.S. Public Health Service (USPS) on 24 September 1975
* the disability did not result from a combat-related injury as defined in Title 26, U.S. Code, section 104

9.  On 25 February 2009, his PEB was approved by an official at the USAPDA on behalf of the Secretary of the Army.

10.  On 11 March 2009, Headquarters, Installation Management Command, Fort Lewis, WA, published Orders 070-0001 retiring him effective 26 March 2009 and placing him on the TDRL effective 27 March 2009.  The orders 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 incurring in the line of duty during a period of war as defined by law: No
* disability resulted from a combat related injury as defined in Title 26, U.S. Code, section 104: No

11.  On 26 May 2009, the applicant was retired and on 27 May 2009, he was placed on the TDRL in his retired rank/grade of SSG/E-6, in accordance with chapter 4 of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) by reason of temporary disability (no indication of combat related).  Item 26 (Separation Code) of his DD Form 214 shows the entry "SFK."

12.  On 16 June 2014, a TDRL PEB convened under the Integrated Disability Evaluation System (IDES) and determined his generalized anxiety disorder was in partial remission.  The TDRL PEB rated him under VASRD 9413 and assigned a rating of 10 percent.  The TDRL PEB recommended his separation with entitlement to severance pay.  He was counseled and concurred.  

13.  On 18 June 2014, the USAPDA published Orders D169-23 removing him from the TDRL effective 27 March 2014 and honorably discharging him with entitlement to severance pay.  

14.  He provides: 

	a.  A statement, dated 11 August 2014, from his sister.  She states she can attest to the changes in his behavior and attitude after his return for the Iraq war in 2008.  She knows first-hand that he displayed several changes to his behavior and attitude that she had never seen him display as a child or at any other time in his life up to that point.  She finds it rather appalling, as a wife to a 10-year veteran herself, that the military would try to make a claim that all the changes he has gone thru since then, are somehow related to his childhood even though up until his return in 2008 he never displayed said behaviors and to her knowledge had a clean military record.  She hopes this letter will help the Board come to realize that [Applicant's] major behavior and attitude changes came from the time he spent serving his country in Iraq and the experiences he had there. 

	b.  A statement, dated 27 August 2014, from his father.  He states the applicant, as a child, never had the mental problems as he did after returning from his second tour of duty in Iraq.  After his first tour of duty in Iraq he transferred into a new unit that had their full year off between tours of duty and was being deployed back to Iraq.  He was stationed in Germany when he did his first tour in Iraq and when he returned from his first tour in Iraq he transferred to Fort Carson, CO.  That unit was being deployed back to Iraq for their second tour in Iraq.  The Army wasn't going to give him time to receive all his goods from Germany before deploying him.  If it wasn't for his mother going to the base Chaplain to get him some time to take care of his goods that were being sent from Germany he wouldn't have been given the time to take care of it.  Not to mention the Army didn't allow him a year off between deployments to Iraq.  He feels the applicant did have some unjust hardship put on him while serving in the Army that has affected his mental health.  He served his time in the Army well with a good record and did make the rank of SSG.  It appalls him that the Army is trying to blame his mental problems on his childhood only and not the time he served in the Army.

	c.  A statement, dated 11 September 2014, from his brother.  He states he has been a nurse's aid for 23 years and has cared for many veterans in his years of work.  He finds it discouraging the way that our country treats the medical and mental care of those who have fought so bravely for our country.  He knows that his brother did not have the problems that he now has prior to severing for his second time in Iraq.  His brother served his country with honor and never got into trouble during his service to his knowledge.  After his second tour in Iraq he returned and was not the same again.  He was always a happy person, looking out for others, and thankful to be alive.  Now on more than one occasion he has witnessed his brother saying that he just wishes that he was not alive because he wants it all to end that he can't deal with it anymore.  This is usually when he needs to have the level of his medication adjusted.  As a child, his brother never said these things.  His brother and he used to be very close and now they have drifted apart.  He finds it very sad that the military is trying to say that all of this is somehow attributed to his childhood and not something that happened to him during his time in service of our country. 

	d.  A statement, dated 12 September 2014, from his sister.  She states the issues that her brother has are not from his childhood.  He did not have these problems until he returned from his second tour in Iraq.  He served his country bravely and did not get into any trouble during his time of service to her knowledge.  She finds it disturbing how the military expects its Soldiers to see their best friends die in front of them and then say that their mental problems are from their childhood.  

15.  Army Regulation 635-40 establishes the PDES 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 or her office, grade, rank, or rating.  The regulation in effect at the time stated 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.  Appendix D of Army Regulation 635-40 provides instructions for completion of the DA Form 199.

	a.  Block 9:  Select recommendations for disposition of the Soldier from the following statements: "Permanently retired from the service"; "Placed on the TDRL (Temporary Disability Retired List) with reexamination during (month and year)"; "Separated from the military service without entitlement to disability benefits from the service"; "Separate from the service with severance pay if otherwise qualified"; "Retained on the TDRL with reexamination during (month and year)"; "Revert to retired status"; or “Other (specify).”

	b.  Item 10a:  Make the entry according to the provisions of paragraph 4–19j. Make the entry in all cases other than those on the TDRL although the entry pertains only to Soldiers who will be retired.  For a Soldier on the TDRL, make an entry only if the DA Form 199 placing the Soldier on the TDRL did not indicate a finding.

	c.  Item 10b:  Make the entry in all cases even though block 10b addresses only Soldiers who will be retired.  Check "was" if, on 24 September 1975, the individual was a member of the armed force of any country or Reserve Component (RC) of the armed force; the NOAA; the USPHS; or under a binding written commitment to become such a member.  For a Soldier on the TDRL, make the proper entry only if the DA Form 199 placing him on the TDRL after 24 September 1975 does not indicate a finding.

	d.  Item 10c:  Make the entry in all cases even though block 10c addresses only Soldiers who will be retired.  Refer to paragraph 4–19k and the Glossary to decide which block to check.

	e.  Item 10d:  A new entry, make the entry whether the disability was or was not incurred in a combat zone or incurred during the performance of duty in combat-related operations as designated by the Secretary of Defense under National Defense Authorization Act (NDAA) 2008, section 1646.

16.  Paragraph 4-19j 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 or her 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.

17.  Section II of the Glossary in Army Regulation 635-40 defines:

	a.  Combat-related injury as a personal injury or sickness that a Soldier incurs under one of the following conditions: as a direct result of armed conflict; while engaged in extra hazardous service; under conditions simulating war; or which is caused by an instrumentality of war.

	b.  Conditions simulating war as those circumstances of training so simulating conditions of war that a special personal risk attends the situation. The mere fact that training (calisthenics) was required, or that training (football) is sponsored by the military, does not equate with "conditions simulating war."

	c.  Instrumentality of war is a device designed primarily 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.  There must be a direct causal relationship between the use of the instrumentality of war and the disability and the disability must be incurred incident to a hazard or risk of the service.

18.  Title 26 U.S. Code, section 104, states 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.

19.  The FY 2008 NDAA which became Public Law 110-181, on 28 January 2008, authorized an enhancement of disability severance pay for members of the armed forces.  The law mandated that the Secretaries of Military Departments identify and certify members with a disability incurred in a line of duty in a combat zone tax exclusion area or incurred during performance of duty in combat-related operations as designated by the Secretary of Defense.  The determination of "incurred during performance of duty in combat-related operations" shall be made consistent with the criteria of the law.  This provision applies to members not disability separated or retired as of 28 January 2008.  Military Departments shall ensure the appropriate severance pay is calculated in accordance with
Title 10, U.S. Code, section 12, and is paid.

20.  Title 26 USC, section 104, states 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.

21.  The Under Secretary of Defense memorandum, dated 13 March 2008, established four new Separation Program Designator (SPD) codes, one for standard use and one for use by the DES (Disability Evaluation System) Pilot "Enhanced".  The new SPD codes reflect the categorization of combat-related disability directed by Public Law 101-181 and will be utilized on the DD Form 214 of all service members with disabilities incurred in a combat-related operation. 

22.  Army Regulation 635-5-1 (Separation Program Designator Codes) states that the SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The primary purpose of SPD codes is to provide statistical accounting of reasons for separation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's primary disabling condition was anxiety disorder. 

	a.  According to the available evidence, the onset of the applicant's condition was from childhood abuse.  He was a functioning member with promotion to SSG/E-6 at normal intervals until his second tour in Iraq.  His de-compensation began when he faced marital stress on top of combat stress when he returned from his second tour.  The psychiatrist reported his symptoms at the time as anxiety, nightmares, intrusive memories, sleep disruptions, and episodic suicidal thinking.  His squad leader reported him as performing reasonably well if left alone but he had memory problems and reacted with verbal aggression when questioned about his performance and tasks.  

	b.  The statements authored by his family members are noted and considered.  However, competent and credentialed medical authorities at the time determined the pre-existing factors for his condition were undetermined.  The specific combat stressors were not verified and onset of condition was after he returned from Iraq and therefore condition is not considered combat-related.  

2.  His anxiety disorder that led to his initial temporary retirement is not in question.  Likewise, his service to our country is also not in question.  However, this condition began after his return from his second Iraq tour.  Because this condition failed retention standards, he underwent an MEB that referred him to a PEB.  The PEB determined he was physically unfit for further military service and recommended his separation.  He was counseled and submitted a statement in rebuttal.  A second PEB convened and although increased his rating, reached the same determination with respect to his condition being non-combat related.  He ultimately concurred with the PEB's findings and recommendations and, accordingly, he was retired.

3.  The PEB determined that the DA Form 199 in Item 10D should state "No."  This determination and entry on the DA Form 199 was relatively new at the time of the applicant's separation and was made subsequent to the FY 2008 NDAA.  Based on DOD guidance, in order for the applicant's specific injury to be a "Yes," the injury must have occurred or been sustained during combat or in a combat zone, otherwise the injury is categorized as non-combat related.  

4.  When the FY 2008 NDAA specified potential benefits for those being medically separated with severance pay, four new SPD codes were created.  Under the 2008 NDAA, in order to differentiate injuries and establish specific entitlements to certain programs, the DOD established specific SPDs for each type of injury.  In the applicant's case, his anxiety disorder occurred in line of duty and it was aggravated by service.  However, the injury did not occur in a combat zone or incurred during the performance of duty in combat-related operations as designated by the Secretary of Defense.  Therefore, he retired in 2009 as a result of a disability that did not occur in a combat zone which is correctly shown on his DD Form 214.

5.  The applicant’s physical disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the recommendation of the PEB.  There is no error or injustice in this case.  The applicant was appropriately assigned a narrative reason for separation as "disability, temporary" without the entry "combat-related."  In view of the circumstances in this case, there is insufficient evidence to grant him the requested relief.

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)                                         AR20140016982



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ABCMR Record of Proceedings (cont)                                         AR20140016982



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