BOARD DATE:	  6 August 2015

		DOCKET NUMBER:  AR20140020653 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, correction of his:

   a.  DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings) to show his medical condition/injury sustained on active duty was categorized as combat-related.

	b.  DD Form 214 (Certificate of Release or Discharge from Active Duty) to show in item 28 (Narrative Reason for Separation) he was medically discharged due to a combat-related disability.

2.  The applicant states his injury occurred during his unit field training exercise (FTX), conducted on 5 - 6 August 2007, in preparation for combat in Afghanistan. Neither his DA Form 199 nor his DD Form 214 indicate that he was discharged due to a combat-related disability.

3.  The applicant provides:

* DD Form 214
* DA Form 199, dated 31 October 2011
* FTX, deployment, and transition orders
* Medical Evaluation Board (MEB) documents
* Medical records to include surgery reports and physical profiles
* DA Form 577 (Appointment/Termination Record-Authorized Signature)
* DA Form 2166-8 ( Noncommissioned Officer Evaluation Report (NCOER), dated 26 February 2008
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 prior service in the Army National Guard, the applicant enlisted in the Regular Army on 15 February 2009.  He was trained in and awarded military occupational specialty (MOS) 92G (Food Service Operations Specialist).

3.  On 31 October 2011, a PEB found him unfit to perform the duties of his MOS based a diagnosis of idiopathic axonal peripheral neuropathy.  The PEB recommended a combined disability rating of 0 percent (%) and that he be separated with severance pay.

4.  The applicant’s DA Form 199 shows in item 10 (If retired because of disability, the board makes the recommended finding that): 

	a.  10a – "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 line of duty during a period of war as defined by law."

	b.  10b – "Evidence of record reflects the Soldier was not a member or obligated to become a member of an Armed Force or Reserve thereof, or the NOAA of the USPHS on 24 September 1975."

	c.  10c – "Disability did not result from a combat related injury as defined in 26 USC 104 and for purposes of 10 USC 10216g [Title 10, U.S. Code, Section 10216(g)]."

	d.  10d – "Disability 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 (NDAA [National Defense Authorization Act] 2008 [Section] 1646)."
5.  On 8 December 2011, he concurred with the PEB findings and waived his right to a formal hearing of his case.  On 27 December 2011, the PEB findings and recommendations were approved for the Secretary of the Army.

6.  On 29 March 2012, he was honorably discharged.  His DD Form 214 shows in:

* item 18 (Remarks) – he was authorized disability severance pay in the amount of $72,309.60
* item 25 (Separation Authority) – Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4
* item 26 (Separation Code) – "JEB"
* item 28 (Narrative Reason for Separation) – "DISABILITY, SEVERANCE PAY, NON-COMBAT (ENHANCED)"

7.  His record is void of documentation showing his disability was incurred while serving in a combat zone or while performing duty in a combat-related operation so designated by the Secretary of Defense.

8.  The applicant provides his:

	a.  FTX Operation Orders which show during the period 6-7 August 2007, his unit performed battle drills in preparation for deployment.

	b.  NCOER, covering the period 27 February 2007 through 26 February 2008.  This evaluation shows the applicant participated in an FTX and Part IV (f) (Responsibility and Accountability) contains the statement:  “stressed the importance of safety first to all Soldiers resulting in an accident free year with no damage to equipment or personnel.”

	c.  MEB Narrative Summary, dated 28 June 2011, which states he initially presented in October 2007 to Primary Care complaining of bilateral lower extremity pain and right hand pain 2 months after falling from a truck.  His final diagnosis was chronic, idiopathic, axonal peripheral neuropathy and he was referred to a PEB for further evaluation.

	d.  PEB, dated 31 October 2011, recommending separation with severance pay.

	e.  Medical records for the period 5 October 2007 through 4 April 2008, which show he complained of and was treated for foot pain that he self-reported was the result of a fall from a truck.

	f.  Medical records that show he underwent foot/ankle surgery on 
21 August 2009, 16 October 2009, and 25 March 2010.

	g.  Physical profiles related to chronic foot pain, bunions, foot and ankle surgery, and peripheral neuropathy.

	h.  Unit deployment orders.

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System 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 office, grade, rank, or rating.  It states:

	a.  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.

	b.  The term "instrumentality of war" refers to a device primarily designed 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.

10.  Army Regulation 635-40, paragraph 4-19 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 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.

11.  Title 26, U.S. Code, section 104 states that 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 evidence of record does not support the applicant's request for correction of his DA Form 199 or item 28 on his DD Form 214.

2.  A PEB determined that his disabling condition was not incurred while serving in a combat zone or during the performance of duty in combat-related operations designated by the Secretary of Defense.  The applicant concurred with this determination.

3.  The medical evidence provided by the applicant clearly shows he suffered from chronic foot and ankle pain of which the origin was self-reported by the applicant to have occurred when he fell from a truck; however, the available medical records cannot definitely confirm or deny his contention.  In any case, there is insufficient evidence to establish a direct, causal relationship to his rated disability to war or the simulation of war.

4.  The evidence shows his medical condition was incurred in the line of duty; however, it was not based on an injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality or war or conditions simulating war.  Without clear and convincing evidence of the above, it would be inappropriate to correct the PEB Proceedings or his narrative reason for separation to show his medical condition was combat-related.

5.  In view of the available evidence, his request should be denied.


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)                                         AR20140020653



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ABCMR Record of Proceedings (cont)                                         AR20140020653



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