IN THE CASE OF:	  

		BOARD DATE:	  28 May 2015

		DOCKET NUMBER:  AR20140017249 


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 records to show he was retired by reason of disability caused by an instrumentality of war. 

2.  The applicant states based on Title 37, U.S. Code (USC), section 301, he believes he has been wrongly taxed on his retired pay.  He was permanently retired due to an injury that occurred during a combat parachute jump while simulating a combat exercise. 

3.  The applicant provides:

* Correspondence with a Member of Congress
* A letter response from his Member of Congress
* Letter from the Defense Finance and Accounting Service (DFAS) to the Member of Congress
* Secretary of the Navy Instruction (SECNAVINST) 1850.4E, dated 30 April 2002
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings) 
* Chronological Record of Medical Care
* Retirement orders 
* 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.  Having had prior service, the applicant enlisted in the Regular Army on 1 May 1979 and he held military occupational specialty 11B2P (Infantryman) with the Airborne identifier.  He was assigned to Company C, 4th Battalion, 23rd Infantry, Fort Richardson, AK.  He held the rank/grade of sergeant (SGT)/E-5.

3.  On 8 June 1980, he fell while parachuting, approximately 30 to 50 feet, while on duty on base.  He sustained a compression fracture to L1.  He was admitted for treatment at Elmendorf Hospital.  

4.  Following treatment and therapy, he was reassigned to the position of supply clerk within the same company on or around 8 September 1980 where he remained until his retirement in September 1982. 

5.  His narrative summary (NARSUM), dated 23 April 1982, states: 

	a.  He was involved in a parachute incident 2 years prior to the dictation of this NARSUM.  At the time he sustained a compression fracture of L1.  Since then, he had complained of recurrent left paraspinal spasms precipitated by prolonged sitting, standing, or activity.  His back spasms were unrelieved by physical training and medications.  His MRI showed symptoms consistent with chronic pain syndrome.  Further therapeudic intervention was not recommended. 

	b.  His complaint of pain did not consist of a radicular pattern but rather seemed related to a chronic pain syndrome from his L1 compression fracture.  Most compression fractures will become asymptomatic within a short period of time; however, occasional injuries such as this go on to develop a chronic pain syndrome with unpredictable course.  He was considered unfit in accordance with paragraph 3-14 of Army Regulation 40-501 (Standards of Medical Fitness). 

6.  On 30 April 1982, a medical evaluation board (MEB) convened and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found that the applicant had the medically unacceptable condition of chronic pain syndrome from L1 compression fracture.  The MEB recommended his referral to a PEB.  The applicant was counseled and indicated he did not desire to remain on active duty.  He also agreed with the findings and recommendations of the MEB.

7.  On 3 June 1982, an informal PEB convened and found the applicant's condition 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) Codes 5285/5295, status 2 1/2 years post L-1 vertebral compression fracture with persistent pain and limitations of motion and recurrent spasm, and rated this condition at 20 percent.   

	a.  The PEB noted that although some change in his medical condition may be anticipated, for administrative adjudication purposes, the disability is considered to have stabilized to the degree of severity above.   

	b   The PEB recommended the applicant's separation with entitlement to severance pay if otherwise qualified.  He was counseled but did not concur.  He did not concur and demanded a formal hearing of his case.   

8.  On 25 June 1982, a formal PEB convened and found the applicant's condition prevented him from performing the duties required of his grade and specialty and determined he was physically unfit.  The PEB rated him under the VASRD Codes 5285/5295, status 2 1/2 years post L-1 vertebral compression fracture with persistent pain and limitations of motion and recurrent spasm, and rated this condition at 30 percent.   

	a.  The PEB noted that although some change in his medical condition may be anticipated, for administrative adjudication purposes, the disability is considered to have stabilized to the degree of severity above.   

	b   The PEB recommended the applicant's permanent retirement from the service with a combined disability rating of 30 percent.  He was counseled and agreed with the PEB''s findings and recommendations.   

9.  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 member'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 incurred in the line of duty during a period of war as defined by law
* the evidence of record reflects the individual 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 result from a combat-related injury as defined in Title 26, U.S. Code, section 104

10.  On 30 July 1982, his PEB was approved by an official at the USAPDA on behalf of the Secretary of the Army.

11.  On 6 August 1982, the Physical Disability Branch, U.S. Military Personnel Center, Alexandria, VA:

	a.  Published Orders D152-9 retiring him effective 7 September 1982 and placing him on the retired list in his retired rank/grade of SGT/E-5 effective 8 September 1982 at a combined rating of 30 percent.  

	b.  Prepared and submitted a DA Form 2173 (Data for Retired Pay) listing the applicant's retirement at the rate of 30 percent, effective 8 September 1982, in accordance with Title 10, U.S. Code, section 1201.  The "Remarks" block of this form states "Excluded from provisions of Public Law 94-106" and "His disability was not caused by a combat-related injury."  

12.  On 23 August 1982, the Physical Disability Branch, U.S. Military Personnel Center, Alexandria, VA:

	a.  Published Orders D65-21, amending Orders 152-9, dated 6 August 1982, to show a different place of retirement and a different Movement Designator Code (MDC).  

	b.  Prepared and submitted an amended DA Form 2173 changing the place of retirement and the MDC.  

13.  On 23 August 1982, Headquarters, 172nd Infantry Brigade, Fort Richardson, AK, published Orders 163-54 retiring him effective 7 September 1982 and placing him on the retired list in his retired rank/grade of SGT/E-5 effective 8 September 1982 at a combined rating of 30 percent. 

14.  On 7 September 1982, the applicant retired and on 8 September 1982, he was placed on the retired list in his retired rank/grade of SGT/E-5 in accordance with chapter 4 of Army Regulation 635-200 (Personnel Separations) [Instead of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation)] by reason of disability (no indication of combat related).  Item 26 (Separation Code) of his DD Form 214 shows the entry "WFJ."

15.  He provides: 

	a.  SECNAVINST 1850.4E, dated 30 April 2002, that defines a combat-related injury as one that includes having been incurred as a direct result of armed conflict, incurred while engaged in extra hazardous service (aerial flight duty, parachute duty, demolition duty, experimental stress duty, or diving duty) or incurred under conditions simulating war (disabilities resulting from military training, such as war games, practice alerts, tactical exercises, airborne operations) or caused by an instrumentality of war.  

	b.  A letter, dated 9 June 2014, from DFAS to the applicant's Member of Congress.  A DFAS official states the applicant was permanently retired on 8 September 1982.  Certain disability is exempt from federal taxes if the injury or sickness 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.  The U.S. Army Physical Disability Agency determined upon the applicant's placement on the permanent retired list that the disability for which he was retired is not combat-related; therefore, his retired pay is subject to taxes.  

16.  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.  Armed conflict and instrumentality of war.  A member whose retirement or separation from the service is based on disability resulting from injury or disease received in line of duty as a direct result of armed conflict, or caused by an instrumentality of war and incurred in line of duty during a period of war will have the block "is" checked in item 10 of the DA Form 199.  

		(1)  Armed conflicts.  A disability may be considered a direct result of armed conflict (Appendix A) if (a) It was incurred while the member was engaged in armed conflict or an operation or incident involving armed conflict or the likelihood of armed conflict, or while interned as a prisoner-of-war or detained against his will in the custody of a hostile or belligerent force or while escaping or attempting to escape from such prisoner-of war or detained status, and (b) A direct causal relationship exists between the armed conflict or the incident or operation and the disability.  A determination that a disability resulted from injury or disease received in line of duty as a direct result of armed conflict will be appropriate only when it is also determined that the disability so incurred in itself renders the member physically unfit.

		(2)  Instrumentality of war.  A determination that a disability was caused by an instrumentality of war (Appendix A) and incurred in 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, i.e., (World War II, 7 December 1941 to 31 December 1946); any period of continuous service performed after 31 December 1946 and before 26 July 1974, if such period began before 1 January 1947; Korean War (27 June 1950 to 31 January 1955); and Vietnam Era (5 August 1964, and ending on such date as shall thereafter be determined by Presidential proclamation or concurrent resolution of the Congress.  (It should be noted that the "Dominican Intervention" occurred during this period).  

	b.  Appendix A makes further definitions as follows: 

		(1)  Instrumentality of war.  A device primarily designed for military service and intended for use in such service at the time of the occurrence of the injury or a device not designed primarily for military service, but the use of or occurrence involving such device subjects the individual to a hazard peculiar to military service as distinguished from such use or occurrence under similar circumstances in civilian pursuits. 

		(2)  Armed conflict.  An armed conflict may include a war, expedition, occupation, battle, skirmish, raid, invasion, rebellion, insurrection, guerrilla action or insurgency, etc., in which American military personnel are engaged with a hostile or belligerent nation, faction or force.

17.  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.  SPD Code WFJ applies to Soldiers retired by reason of permanent disability.

18.  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.




DISCUSSION AND CONCLUSIONS:

1.  The applicant sustained an injury during an airborne/parachute jump in January 1980 that resulted in a compression fracture.  He continued to experience pain as a result of that injury.  Two years later, medical authorities determined his condition failed retention standards.  He underwent an MEB that referred him to a PEB.  The informal PEB determined he was physically unfit for further military service and recommended his separation with entitlement to severance pay.  He did not concur and demanded a formal hearing.  

2.  A formal PEB convened and increased his rating to 30 percent.  The formal PEB recommended his permanent retirement.  He was counseled, concurred, and retired on 7 September 1982 by reason of disability.  When the informal PEB was completed, his DA Form 199 indicated that his disability did result from a combat-related injury as defined in Title 26, USC, section 104.  Likewise, when his formal PEB was completed it indicated the same.  

3.  When the DA Form 3713 was prepared, it inadvertently indicated that "his disability was not caused by a combat-related injury."  This is in error.  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.

4.  Because his injury resulted from a parachute/airborne landing, he was performing extra hazardous service (aerial flight duty, parachute duty, demolition duty, experimental stress duty, or diving duty) and/or incurred under conditions simulating war (disabilities resulting from military training, such as war games, practice alerts, tactical exercises, airborne operations).  Thus, for the purpose of Title 26, USC, section 104, his injury was combat-related.   Therefore, he should be entitled to correction of his retirement orders to show the entry "disability did result from a combat related injury as defined in Title 26, USC, section 104." 

BOARD VOTE:

____X____  ___X_____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending Orders D152-9, issued by the Physical Disability Branch, U.S. Military Personnel Center, Alexandria, VA, on 6 August 1982, to show the entry "Disability resulted from a combat related injury as defined in Title 26, USC, section 104: Yes." 



      _______ _   __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)                                         AR20140017249





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140017249



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1