IN THE CASE OF:	  

		BOARD DATE:	  25 June 2015

		DOCKET NUMBER:  AR20140018082 


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 retirement orders to show his disability did (instead of did not) result from a combat-related injury.

2.  The applicant states:

* His Line of Duty (LOD) established that his injuries occurred during deployment to Operation Iraqi Freedom (OIF) from 2005 to 2006
* They occurred in a combat situation and should be considered combat-related and in direct result of armed conflict/war
* His retirement orders state that his injuries were not combat-related; he retired in February 2011 by reason of permanent disability

3.  The applicant provides:

* Orders D108-11 (retirement orders)
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings)
* Approved LOD for Bilateral Contusions/Development of Post-Traumatic Patellofemoral Arthritis
* Approved LOD for C5-C6 Disc Herniation with Cervical Radiculopathy, Post-Traumatic Patellofemoral Joints, Left AC joint, Left Wrist, and Navicular Fracture/Non-Union, Wright Wrist Arthritis
* Medical Evaluation Board (MEB) Narrative Summary (NARSUM)


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 was born in December 1961.  He enlisted in the Puerto Rico Army National Guard (PRARNG) on 11 January 1989 and he held military occupational specialty 45B (Small Arms Repairer).  

3.  He served through multiple extensions in a variety of assignments and he attained the rank/grade of sergeant (SGT)/E-5.  

4.  On 25 August 2005, he was ordered to active duty in support of OIF.  He served in Iraq from 22 November 2005 to 20 October 2006.  He was honorably released from active duty on 30 November 2006 to the control of the PRARNG. 

5.  In September 2005, PRARNG constructed a DA Form 2173 (Statement of Medical Examination and Duty Status).  This form states he suffered a contusion of the knee on 15 October 2006 in Iraq.  During demobilization on 31 October 2006, he reported back pain and joint pain.  He reported that on 15 October 2006 he was on a mission, fully geared and when he dropped out of the 2 1/2 ton truck, and he felt pain in his knees. 

6.  On 2 October 2009, the NGB issued two memoranda approving LOD determination as follows: 

* Approved LOD for Bilateral Contusions/Development of Post-Traumatic Patellofemoral Arthritis
* Approved LOD for C5-C6 Disc Herniation with Cervical Radiculopathy, Post-Traumatic Patellofemoral Joints, Left AC joint, Left Wrist, and Navicular Fracture /Non-Union, Wright Wrist Arthritis

7.  He underwent a medical examination on 8 August 2010.  His NARSUM dated 27 August 2010 shows he was ordered to active duty on 25 August 2005 for OIF and he completed mobilization training at Fort Bragg, NC.  He then deployed to Iraq.  He stated that due to his routine daily duties and use of helmet, LBE, and full body gear, he developed recurrent neck pain, lower back pain, and knee pain, shoulder pain, and wrist pain.  His MEB is not available for review with this case; however, according to his NARSUM his diagnosis was as follows: 
Condition
Meets Retention Standards
Does Not Meet Retention Standards 
1.  Degenerative disc disease, lumbar spine

X
2.  Herniated disc disease C5-C6

X
3.  Right knee degenerative joint disease 

X
4.  Left knee degenerative joint disease 

X
5.  Right shoulder AC joint arthropacy

X
6.  Left shoulder AC joint arthropacy 

X
7.  Bilateral carpel tunnel syndrome
X

8.  It appears in August 2010 an MEB convened and after consideration of clinical records, laboratory findings, and physical examinations the MEB found that the applicant had the above medically acceptable or unacceptable conditions.  The MEB presumably recommended his referral to a PEB.  The applicant would have been counseled and would have indicated he did not desire to remain on active duty.  He appears to have agreed with the findings and recommendations of the MEB.

9.  On 16 December 2010, an informal PEB convened and found the applicant's conditions prevented him from performing the duties required of his grade and specialty and determined he was physically unfit.  The PEB rated him under the VA Schedule for Rating Disabilities (VASRD) as follows: 

	a.  VASRD Code 5261, right leg limitation of extension, with right knee degenerative joint disease, incurred or aggravated by service, rated at 30 percent.  

	b.  VASRD Code 5261, left leg limitation of extension with left leg degenerative joint disease, incurred or aggravated by service, rated at 30 percent. 

	c.  VASRD Codes 5099/5003, Bilateral AC joint degenerative changes, incurred or aggravated by service, rated at 20 percent.

	d.  VASRD Code 5242, degenerative arthritis, lumbosacral spine described as degenerative disc disease, lumbar spine, without significant neurological abnormality, incurred or aggravated by service, rated at 20 percent.

	e.  VASRD Code 5243, intervertebral disc syndrome, cervical spine, described as herniated disc disease C5-C6, incurred or aggravated by service, rated at 10 percent. 

	f.  The PEB also considered his other medical condition (Bilateral Carpel Tunnel Syndrome) as listed on the MEB; however, this condition was not found to be unfitting and therefore it was not rated.  

	g.  The PEB recommended the applicant's permanent disability retirement at a combined rating of 80 percent.  He was counseled, concurred with the PEB's findings and recommendations, and waived his right to formal hearing of his case.  

10.  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

11.  His PEB was reviewed and approved by an official at the U.S. Army Physical Disability Agency (USAPDA) on behalf of the Secretary of the Army.

12.  On 18 January 2011, USAPDA published Orders D-18-11 releasing him from duty because of physical disability incurred as a result of injury while entitled to basic pay and "Placed on the Temporary Disability Retired List" in 

the rank of SGT, effective 22 February 2011, at a combined rating of 80 percent.  The orders stated: 

* 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 the LOD during a war period as defined by law:  No
* member of an armed force on 24 September 1975: No
* Disability resulted from a combat related injury as defined in Title 26, U.S. Code, section 104: No

13.  On 21 February 2011, the applicant was honorably discharged from the ARNG and on 22 February 2011, he was placed on the temporary disability retired list. 

14.  On 22 May 2015, an official at the USAPDA indicated that amendment orders would be published by USAPDA to correct the error in his retirement orders.  The amendment would permanently retire the applicant instead of placing him on the temporary disability retired list in the rank of SGT, effective 22 February 2011.

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: Make the entry whether make 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.  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.

18.  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 (emphasis added).  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's injuries (right knee degenerative joint disease, left leg degenerative joint disease, bilateral AC joint degenerative changes, lumbosacral spine degenerative arthritis, and herniated disc disease) were clearly aggravated by service but none of these conditions specifically occurred in a combat zone or during combat operations.    

2.  His injuries appear to have been caused by routine daily duties, the wear of a helmet, LBE, and body gear, and/or natural progression.  He deployed to Iraq where his injuries appear to have been aggravated.  He returned to the continental United States and despite intervention, therapy, and medications, he continued to experience pain.  He underwent an MEB that referred him to a PEB. The PEB determined he was physically unfit for further military service and recommended his permanent retirement.  He was counseled and concurred with the PEB's findings and recommendations and, accordingly, he retired.

3.  The PEB determined that the DA Form 199 in Item 10 should state "No."  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 (emphasis added), otherwise the injury is categorized as non-combat related.  In the applicant's case, his arthritis and/or degenerative disc disease occurred in line of duty and were aggravated by service.  However, his injuries 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.  

4.  The applicant’s physical disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the recommendations of the PEB.  There is no error or injustice in this case.  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)                                         AR20140018082



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ABCMR Record of Proceedings (cont)                                     AR20140018082



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