IN THE CASE OF:	  

		BOARD DATE:	  25 November 2014

		DOCKET NUMBER:  AR20140019022 


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 reconsideration of his earlier request for correction of his records to show his non-combat injury was combat-related. 

2.  The applicant states he is responding to the previous Record of Proceedings (ROP) in numerical order.  

	a.  In response to paragraph 1, he had prior service and did enlist in the Arkansas Army National Guard (ARARNG) on 9 March 1998.  He completed his training and was awarded primary military occupational specialty (MOS) 11B (Infantryman) and not 42A (Human Resources Specialist)) as indicated by the Board.   

	b.  In response to paragraph 2, he did wear appropriate hearing protection in environments where noise exceeded his limitations.  He also wore hearing aids to assist him while performing his administrative duties.  If the Board examines his physical profiles including the one dated 4 December 1999, it indicates the assignment of limitations as follows: (0 Running)-(It states limitations).

	c.  In response to paragraph 3, the MOS/Medical Retention Board (MMRB) convened on 13 July 2003 and recommended he be retained in his primary MOS (PMOS) of 75H.  He totally agrees with the recommendation (during peacetime, but not training for war) the duties are totally different as well as the training).  The first questions asked in an MMRB are the member's PMOS and job duties.  Once mobilized, there are no questions and the training starts.  The Board should look at each MMRB's (findings) and the Board will see limitations.  
A 2-mile walk was substituted for the 2-mile run.  The second paragraph created a situation due to the consistent rigorous training and his foot pain, bilateral ankle arthritis and bilateral plantar fasciitis was created and/or aggravated during his training for war exercises.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement or Separation), paragraph 4-19K (b)(2).  As any physician will attest, this condition does not get better when engaging in rigorous weight bearing training.  He did no weight bearing training in his Reserve Component, no running, no packs, and no lifting over 20 pounds without assistance.

	d.  In response to paragraph 4, he was found qualified for duty with profiles for hearing loss and ankle instability (during peacetime).  There doesn't seem to be any logical way to compare peacetime and wartime as the same category.  Therefore, his qualifications on 3 April 2006 were valid as long as he was performing the duties associated with MOS 75H/42A (computers, pens, paper) and not of MOS 11B (weapons, rucksacks, and vest).  Reality is a "Military Occupational Skill" in a specific job skill one is trained to do.  Actuality, training for war has nothing to do with MOS 75H or MOS 42A; but MOS 11B has everything to do with war (as a specialized skill for a specific job in the military).  

	e.  In response to paragraph 5, he did not deploy during the period of active duty.  He was injured or [his condition was] aggravated during training for war/simulation of war.

	f.  In response to paragraph 6, on 15 November 2007, the MMRB convened again and determined his medical condition did not prevent him from satisfactorily performing his duties in PMOS 42A.  Yes, he could perform in MOS 42A satisfactorily, "I did administration, no running or weight bearing activities"; but during the training for (war) while mobilized.  The training was consistent, rigorous, and weight bearing.  War games (simulation of war with a 40-pound plus rucksack, vest, helmet, weapon, and uneven downhill/uphill terrain, in and out of vehicles on a consistent basis in the hot sun.

	g.  In response to paragraph 7, the cognitive disorder did not exist prior to service and he was medically unacceptable.  It happened during training (DA Form 2173 (Statement of Medical Examination and Duty Status), dated
13 February 2008).  The hearing loss was also medically unacceptable but he did maintain his ARNG status satisfactorily even during his training for war with hearing protection.  If a doctor was on the board that specializes in Audiology they should have known that with his condition hearing would be very difficult for any personnel with a loss of hearing especially during training for war.  The bilateral foot/ankle pain with plantar fasciitis and tendonitis was not prior to service and was created or aggravated during training for war.  As the Board can see, he put in a claim on this same projected injury and was denied in 1995 and he continued his job as a Soldier until 2007 during mobilization.  If he was denied in 1996 for plantar fasciitis on the left foot and no case on the right foot and now he has been given a percentage on both feet it seems to involve some type of aggravation.  He was given 20 percent for plantar fasciitis combined (bilateral) (originated from training or a residual of the foot and ankle.  There are several residuals from ankle and foot pain and this is one of them.  The excessive training (without running) definitely had an impact on his injury/aggravation (weight bearing rigorous training). 

	h.  In response to paragraph 8 of the ROP, he states all is true.

	i.  In response to paragraph 9, he states all is true.  In sub-paragraph 9(a) of the ROP, he did his job as a Soldier in the office and during his live fire training and various tactical training during summer camp.  If you look on all documentation generated by the medical evaluation board (MEB) and the physical evaluation board (PEB), they state the word "unacceptable."  Is this the same as unfit?  In sub-paragraph 9(b) of the ROP, what the Board stated might be true, but the issue at present is about plantar fasciitis because it was unfit/unacceptable with severance pay.  

	j.  In response to paragraph 10, he concurred with all his medical/mental/ emotional findings.

	k.  In response to paragraph 11, it is the non-combat part he does not agree with.  If it is based on actually going overseas into a combat zone then his reasoning has no grounds; but if not and Army Regulations 635-40 is valid, then he is confused.  In all his documentation it has stated that the injury happened while on active duty in-line of duty (ILOD) (whether it was created or aggravated). He was awarded 20 percent disability for the injury.

	l.  In response to paragraph 12, this is all true. 

	m.  In response to paragraph 13, this is all true, especially residuals of the foot.

	n.  In response to paragraph 14(a), he feels this regulation qualifies him as a combat veteran, unless the regulation has changed since his discharge.  He was training for war and he was injured or aggravated during his training for war. There may not be a provision stating that "combat related" be used as a narrative during separation from service, but there is also no regulation with the LOD to reference it, but as you see non-combat is indicated on his DD Form 214 (Certificate of Release or Discharge from Active Duty).  He believes there had to be some type of initial and final investigation to make a determination prior to creating a final LOD.  He sees non-combat on his DD Form 214 and that is why he is asking to correct this error.  It says non-combat but all documentation indicates that it was created or aggravated during the time he was on active duty training for war.  Additionally, in regard to paragraph 14(b), the Department of Veterans Affairs (VA) made its own decision which was the same as the Army's 20 percent.  The VA did not create the LOD; it was the Army.  

	o.  In response to paragraph 15, he understands. 

	p.  In response to paragraph 16, the Army decided on his rating and determined his fitness for duty status.  As stated in the first decision "an army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from impairment that disqualifies him or her from further military service."  If this is the case, then what service are we referring to, regular component or reserve component?  The instabilities in relation to his feet have been established with no running limitations while in the service since 1999.  His understanding is that if he could maintain his status as a Soldier in the reserve component with limitations, then where does his discharge originate from and what is the justification.  The ratings were exactly the same and the VA based their decision from the Army's decision in reference to the LOD as a factor in making a favorable decision.  

	q.  As additional information, he likes to provide the following: 

		(1)  He requested a correction to his records to show his injury was combat related and he did state that it occurred in the LOD, created or aggravated and if you look on all the documentation it has been repeated over and over in the LOD!  As indicated by the PEB/MEB/MMRB that was the only injury he was compensated for during this period of duty.  He feels it was a misinterpretation of his request, but it was not to correct his LOD, because it was already correct in favor of his request.  It was my DD Form 214 that stated noncombat.  If the Board reads Army Regulation 40-501 (Standards of Medical Fitness), Table 7-2 gives more detailed information on profiles and on his PEB results and the DA Form 199 (PEB Proceedings), codes 5299 and 5284. It should be noted that plantar fasciitis can be aggravated with weight bearing activities which they endure during training for war exercises with road marching and additional equipment for variations of war simulation.

		(2)  He researched every website available to him and not one time does it mention that his military records from the National Archives and Records Administration (NARA) were a requirement, only the pertinent information related to the issue within his request. He ordered his records from the VA Regional office and they said he would not have gotten his records if he ordered them 90 days ago because of backlog, but if he had known in the beginning that they were mandatory he would have ordered them during the initial process.  Per his communication via email the organization mentioned that if sufficient (enough or adequate) evidence is not available to warrant (justify) a decision then the Director of the Army Board for Correction of Military Records (ABCMR) may grant a personal hearing.  He has been told that initially the Board had his records when the Board denied him the first time and he asked for reconsideration and someone said the Board could not get his military records from NARA and to wait 90 days (for information the Board said you based the first decision on).  "Normally, all ABCMR decisions are records review."  Is this a normal situation?

		(3)  The Board should examine the MEB versus the PEB.  He has all additional documentation in reference to statements made in his request.  The Board's immediate attention to this matter would be more than greatly appreciated.  He is asking for fairness and justice.  The only issue is what he was compensated for "Plantar Fasciitis."  The additional injuries are just that, additional knowledge with little or no bearing in this case.  Initially, the Board considered evidence mentioned on the ROP and not one time did he see a statement about utilizing his military records evidence in making this initial decision.  He only saw the two words (If any).  If an organization is trying to assist Soldiers, then it seems like the clarity of any documentation should be a priority for integrity.  

3.  The applicant provides: 

* ABCMR Docket Number AR20120008412, dated 13 November 2012
* DA Form 3349 (Physical Profile), previously considered
* National Guard Bureau (NGB) Form 22-3 (Request for Waiver), previously considered
* DD Forms 214, dated 10 November 1999 and 6 April 2010, both previously considered
* DA Form 3947 (MEB Proceedings) previously considered
* Pages 1 and 3 of his VA rating decision, previously available
* Memorandum, dated 21 February 2001, previously available
* DA Form 3349, dated 4 and 9 November 1999, previously available
* Summary of MMRB, dated 28 July 2003, previously available
* Record of MMRB, dated 11 August 2003, previously available
* VA Statement in Support of Claim
* DA Form 199, previously considered
* Email exchange
* One page of his MEB Narrative Summary (NARSUM), dated 11 August 2009
* Extract of Army Regulation 40-501

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20120008412, on 13 November 2012. 

2.  The applicant does not meet the two-tiered criteria for reconsideration in that his request was neither received within one year of the Board's original decision nor does it contain new documentary evidence.  However, it appears the applicant communicated via email with the organization on 11 November 2013 regarding reconsideration and erroneously presumed the only option he had was a personal appearance.  As an exception to policy, his current request is considered to have been received within one year of the original decision and thus warrants consideration by the Board. 

3.  The applicant enlisted in the ARARNG on 5 May 1979.  He was trained in and held MOS 19D (Cavalry Scout) during this enlistment.  He was honorably discharged from the ARNG on 11 September 1986.  He was transferred to the U.S. Army Reserve Control Group. 

4.  On 27 February 1998, the Commander, Company B, 3rd Battalion, 153rd Infantry, ARARNG, submitted a Request for Waiver to allow the applicant to enlist in the ARNG.  The commander stated the applicant had a "hearing" medical disqualification but he had interviewed him and found him to be highly motivated.  His unit was understrength in MOS 11B and the applicant could be trained to fill the need.  His medical waiver was reviewed and approved. 

5.  He enlisted in the ARARNG on 9 March 1998 and he was assigned to Company B, 3rd Battalion, 153rd Infantry, Camden, AR, in duty MOS 11B. 

6.  On 3 March 1998, he was issued a permanent physical profile for "Hearing Loss."  His assignment limitations stated "No exposure to noise in excess of 85dBA or weapon firing without use of properly fitted hearing protection."  

7.  On 28 September 1998, he was issued a temporary physical profile for heat cramps.  The profile was valid through 2 October 1998. 

8.  He attended and completed Reserve Component training in MOS 11B from 12 to 26 September 1998.  He was awarded PMOS 11B and secondary MOS 75B (Personnel Administration Specialist) on 1 October 1998. 


9.  He entered active duty on 28 May 1999 and subsequently served in Southwest Asia, in support of Operation Southern Watch, from 10 June to 
11 October 1999.  He was honorably released from active duty on 10 November 1999. 

10.  On 2 January 2001, he executed a 6-year extension of his ARNG enlistment. 

11.  On 13 July 2003, an MMRB convened at Camp Robinson, AR, with the applicant present.  The MMRB summary states the applicant had a permanent profile for chronic ankle instability and a permanent profile for hearing.  He stated that at no time did these limitations keep him from performing his current MOS/duties.  He desired to be retained in the ARNG.  His commander opined that the impairments did not limit his duties.  The MMRB recommended that he be retained in his PMOS and specialty. 

12.  On 1 April 2004, he was promoted to sergeant (SGT) in PMOS 42A (this MOS replaced MOS 75B).  He was also awarded MOS 11B as his SMOS and MOS 19D as an additional MOS (AMOS).  He was assigned to the Joint Force Headquarters, ARARNG, as the Personnel or Human Resources (HR) SGT, in MOS 42A.

13.  On 2 April 2006, he executed a 6-year extension in the ARARNG.  He was still assigned to the Joint Force Headquarters, ARARNG, as an HR SGT. 

14.  On 21 September 2007, he was reassigned to the 1st Squadron, 151st Cavalry, ARARNG.  On 1 October 2007, he was ordered to active duty under Title 32, U.S. Code, section 502(a), for mobilization training. 

15.  On 4 November 2007, an MMRB convened at Camp Robinson, AR, with the applicant present.  The MMRB summary states it evaluated his abilities to perform the physical requirements of MOS 42A.  Based on a thorough review of his most recent physical profile and other pertinent records, the MMRB recommended that he be retained in his current PMOS.

16.  On 21 December 2007, he was ordered to active duty for a period of 400 days under Title 10, U.S. Code.  He was ordered to report to Camp Shelby, MS on or about 5 January 2008 for the purpose of deployment in support of Operation Iraqi Freedom.  However, his orders were revoked and he did not deploy.  He was honorably released from active duty on 1 January 2008 to the control of his State ARNG. 



17.  On 26 and 29 January 2009, a series of DA Forms 2173 were constructed pertaining to the applicant, as follows: 

* DA Form 2173, dated 26 January 2009, for systemic hypertension, dated 15 January 2009, at Camp Shelby, MS, shows his injury was presumed to be ILOD, based on an interview with his commander
* DA Form 2173, dated 29 January 2009, for occlusion of the right vertebral artery, dated 30 January 2009, at Camp Shelby, MS, presumed to be ILOD based on interview with his commander
* DA Form 2173, dated 29 January 2009, for Baker's cyst, dated 6 February 2008, at Camp Shelby, MS, presumed to be ILOD, based on interview with his commander
* DA Form 2173, dated 26 January 2009, for sleep apnea obstructive, dated 5 August 2008, at Fort Benning, GA, presumed to be ILOD, based on interview with his commander
* DA Form 2173, dated 10 February 2009, for post-concussive syndrome, dated 17 March 2008, at Fort Benning, GA, presumed to be ILOD, based on interview with his commander

18.  It appears at some point he entered the Army Physical Disability Evaluation System (PDES).  As such, on 10 August 2009, an MEB convened and, after consideration of clinical records, laboratory findings, and physical examinations, found the applicant was diagnosed with the conditions below.  The MEB recommended referral to a PEB.  He was counseled and after reviewing the contents of the MEB and his medical records, he agreed with these findings and recommendations.  

Diagnosis
Met Retention Standards
Did Not Meet Retention Standards
1.  Cognitive disorder

X
2.  Hearing loss, sensor neural

X
3.  Post-traumatic headaches
X

4.  Obstructive sleep apnea 
X

5.  Chronic right knee pain
X

6.  Bilateral foot/ankle pain with plantar fasciitis and tendonitis 

X
7.  Anemia, iron deficiency
X

8.  Benign prostatic hypertrophy with erectile dysfunction
X

9.  Rectal sphincter dysfunction with bowel incontinence
X

10.  Chronic renal disease with proteinuria
X

19.  On 4 December 2009, an informal PEB convened and found the applicant's conditions prevented him from performing the duties required of his grade and military specialty and determined he was physically unfit due to the conditions below.

	a.  The PEB rated his bilateral plantar fasciitis at 20 percent.  The PEB indicated he had repeated problems with this and he even had an MMRB.  He is unable to stand for long periods of time or lift objects.  His X-rays showed bilateral enthesophytes.  There was tenderness to palpation of the plantar fascia, and it was rated as moderate impairment bilaterally.  

	b.  The PEB determined the diagnosis of vascular dementia with depressed mood and adjustment disorder was not unfitting.  His hearing loss was also not unfitting.  Finally, the PEB considered his other conditions, but since those conditions did not fail retention standards and/or were not unfitting, they were not ratable.  

	c.  The PEB recommended a combined disability rating of 20 percent and his disposition was separation with entitlement to severance pay, if otherwise qualified.  He was counseled, concurred with the PEB's findings and recommendation, and he waived his right to a formal hearing.  

20.  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):

	a.  Item 10a – The Soldier's retirement is not based on disability from injury or disease received ILOD as a direct result of armed conflict or caused by an instrumentality of war and incurred ILOD during a period of war as defined by law.

	b.  Item 10b – Evidence of record reflects the Soldier was not a member or obligated to become a member of the Armed Forces or Reserve thereof, or the National Oceanic or Atmospheric Administration or the U.S. Public Health Service on 24 September 1975.

	c.  Item 10c – The disability did not result from a combat-related injury as defined in Title 26, U.S. Code (USC), section 104.

	d.  Item 10d – The disability was not incurred in a combat zone 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). 

21.  Following his concurrence, Headquarters, Fort Benning, GA, published orders ordering the applicant's discharge from active duty effective 6 April 2010, by reason of physical disability.  The orders stated: "Disability is based on injury or disease received ILOD as a direct result of Armed Conflict or caused by an instrumentality of war and incurred ILOD during a war period as defined by law: No." 

22.  On 6 April 2010, the applicant was honorably discharged from active duty in accordance with chapter 4 of Army Regulation 635-40 by reason of disability.  Item 26 (Separation Code) of his DD Form 214 shows the entry "JFO" and item 28 (Narrative Reason for Separation) shows the entry "Disability, Severance Pay, Non-Combat Related."  

23.  On 13 November 2012, the Board determined there was insufficient evidence to support his contention.  As a result, the Board denied his petition to show his injury was combat-related. 

24.  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.  It states 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 ILOD during a period of war.  A determination that a disability was caused by an instrumentality of war and incurred ILOD 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.  Paragraph 4-19 (PEB decisions – common criteria) states in:

	a.  Paragraph 4-19j (Armed Conflict – Instrumentality of War) certain advantages accrue to Soldiers who are retired for physical disability and later return to work for the Federal Government when it is determined that the disability for which retired was incurred under specific circumstances.  These advantages concern preference eligible status within the Civil Service System (Title 5, USC, section 3501).  One of those situations is when the disability is unfitting, was caused by an instrumentality of war, and was incurred ILOD during a period of war as defined by law. 

	b.  Paragraph 4-19k disability pay is awarded by reason of a combat-related injury.  Within the meaning of Title 26, USC, section 104, combat-related injuries cover those disabilities attributable to the special dangers associated with armed conflict or the preparation or training for armed conflict.

	c.  Paragraph 4-19l a Soldier may be performing extra hazardous service even if not directly engaged in combat.  Extra hazardous service includes but is not limited to the following activities:  Aerial flight duty, parachute duty, demolition duty, experimental stress duty, and diving duty.  Conditions simulating war include, but are not limited to, the following activities:  performance of tactical exercises such as the squad or platoon in the assault; airborne operations; leadership reaction courses; grenade and live fire weapons practice; bayonet training; hand-to-hand combat training; repelling; and negotiation of combat confidence and obstacle courses.  In block 10c of the DA Form 199, the board will record its determination of whether the injury was combat-related as defined by Title 26, USC, section 104. 

25.  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.

26.  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.


27.  Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment, retention, separation, and retirement.  Paragraph 1-5 provides a definition for what is acceptable and what is not.  Individuals evaluated under the medical fitness standards contained in this regulation will be reported as indicated below.

	a.  Medically acceptable. Medical examiners will report as "medically acceptable" all individuals who meet the medical fitness standards established for the particular purpose for which examined.  No individual will be accepted on a provisional basis subject to the successful treatment or correction of a disqualifying defect.  

	b.  Medically unacceptable.

		(1)  Medical examiners will report as "medically unacceptable" by reason of medical unfitness all individuals who possess any one or more of the medical conditions or physical defects listed in this regulation as a cause for rejection for the specific purpose for which examined, except as noted in (2), below.

		(2)  Medical examiners will report as "Medically unacceptable—prior administrative waiver granted" all individuals who do not meet the medical fitness standards established for the particular purpose for which examined when a waiver has been previously granted and the applicable provisions of paragraph 1–6 apply.  

28.  The FY 2008 National Defense Authorization Act (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.  

29.  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. 

* SPD Code of "JFO" for disability, severance pay, non-combat related, is appropriate for service initiated discharge in accordance with established directives, resulting from physical disability with non-combat related severance pay and entitlement, as amended by section 1646, Public Law 110-181

DISCUSSION AND CONCLUSIONS:

1.  The applicant entered the PDES for multiple conditions that failed retention standards.  He was considered by an MEB that referred him to a PEB.  The PEB rated his only unfitting condition of bilateral plantar fasciitis at 20 percent disabling.  The PEB indicated he had repeated problems with this and he even had an MMRB.  He was unable to stand for long periods of time or lift objects.  His X-rays showed bilateral enthesophytes.  There was tenderness to palpation of the plantar fascia, and rated as moderate impairment bilaterally.  The PEB recommended separation with entitlement to severance pay.  He concurred. 

2.  According to the National Institutes of Health, plantar fasciitis is one of the most common causes of heel pain.  It involves pain and inflammation of a thick band of tissue, called the plantar fascia that runs across the bottom of the foot and connects the heel bone to the toes.  Plantar fasciitis commonly causes stabbing pain that usually occurs with your very first steps in the morning.  Once the foot limbers up, the pain of plantar fasciitis normally decreases, but it may return after long periods of standing or after getting up from a seated position. 

3.  Although he makes a lengthy argument, he concludes by asking this Board to address the plantar fasciitis.  The applicant does not meet the criteria to have this condition listed as combat-related.  

	a.  First, there is no evidence he sustained his unfitting condition in a combat environment in a location designated by the Secretary of Defense.  Therefore, this disability did not occur in a combat environment and would not be classified as combat-related.   

	b.  Second, there is no instrumentality of war here that caused his bilateral foot pain.  There are no parachute landings, no jumping in and out of a military tank that is unique to the military, and no diving equipment that are also unique to 

the military, and could have caused his condition.  There is no evidence his foot condition was caused by a vehicle, vessel, or device designed primarily for military service and  intended for use in such service at the time of the occurrence of the injury.

	c.  Third, his disability cannot be classified as resulting from conditions simulating war.  Conditions simulating war are those circumstances of training wherein a special personal risk attends the situation.  The mere fact that a member injuries himself during training does not equate with "conditions simulating war."  The applicant could have sustained a similar injury had he not been in the military.  The fact that his condition occurred ILOD in a time of war during training is not sufficient to change item 10c of his PEB or the resultant separation orders. 

	d.  Finally, there is no evidence of a direct causal relationship between the use of the instrumentality of war or simulation of war and the applicant's disability and/or the disability was incurred incident to a hazard or risk of the Army. 

4.  When the Fiscal Year 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 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 was discharged as a result of a disability that did not occur in a combat zone which is correctly shown on his DD Form 214.

5.  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 to amend the decision of the ABCMR set forth in Docket Number AR20120008412, dated 13 November 2012.



      _______ _   _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)                                         AR20140019022



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ABCMR Record of Proceedings (cont)                                         AR20140019022



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