IN THE CASE OF:	  

		BOARD DATE:	  20 January 2015

		DOCKET NUMBER:  AR20140009408 


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, amendment of Orders Number D144-01 to show his disability resulted from a combat-related injury.

2.  The applicant states, in effect, his retirement orders should state "Yes" instead of "No" because his injury was received in the line of duty (LOD).  The LOD memorandum, dated 20 January 2012, shows his injury occurred during a time of war.  The Combat-Related Special Compensation (CRSC) letter, dated 5 May 2014, shows he was awarded a total combat-related disability of 60 percent (%) for his injury.

3.  The applicant provides copies of the following:

* LOD memorandum
* Orders Number D144-01
* CRSC letter

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve (USAR) on 22 May 1992.  He was ordered to and entered active duty on 19 July 1992.  He was released from active duty on 27 June 1993, for the purpose of entering the U.S. Military Academy (USMA).  



2.  His records contain the following:

* USMA Form 2-515 (Cadet Excusal), date 12 August 1996, which shows he incurred a lower back injury on 12 July 1996 while performing military jump training
* three Standard Forms 600 (Health Record – Chronological Record of Medical Care) which show from 12 to 25 August 1996 he received treatment for a lower back injury as a result of a parachute jump 6 weeks earlier

3.  He was appointed in the USAR, as a second lieutenant, on 31 May 1997.  He was awarded Area of Concentration 15A (General Aviation).  He entered active duty on the same day.  He served in Afghanistan from 3 January through 5 August 2003.  He was honorably discharged from active duty on 1 September 2009.

4.  Orders Number 10-327-00225, issued by Headquarters, 98th Regional Support Command on 23 November 2010, show he was reassigned to an USAR troop program unit outside the command with an effective date of 23 December 2010.

5.  His records also contain a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 24 April 2012, which stated he received treatment as an out-patient for a back deformity, bilateral; anomaly of spine on 25 June 1996.  He cracked his L4 Vertebrate while performing military airborne operations during High Altitude Low Opening School Airborne operations from 10 to 27 June 1996, as a result of several free fall jumps from aircrafts as an Army parachutist.  He went to the doctor on 12 August 1996 when the back pain got progressively worse.  That was approximately 6 weeks after his last jump.  He was also a member of the West Point Skydiving Team and had approximately 400 jumps.  His back got better after physical therapy.  However in 2007, he reinjured his back while on active duty.  That time it was back pain, back muscle spasms, tingling, and numbness of the right leg.  The injury was determined to have incurred in the LOD. 

6.  His records further contain and he provided a copy of a LOD memorandum, dated 14 May 2012, which shows his back deformity injury on 25 June 1996 was determined to be in the LOD.

7.  On 25 January 2013, a Medical Evaluation Board (MEB) convened and determined his Lumbar Degenerative Disc Disease with L4 Fracture and Right Lower Extremity Radiculopathy did not meet retention standards applicable with
Army Regulation 40-501 (Standards of Medical Fitness) and referred him to a Physical Evaluation Board (PEB).  The MEB also determined his Irritable Bowel Syndrome condition was medically acceptable.

8.  On 10 May 2013, an informal PEB convened and considered his unfitting medical conditions to include the Irritable Bowel Syndrome.  The PEB found him physically unfit and recommended a combined rating of 80% and his permanent disability retirement.  The PEB did not find that his disability was from an injury received in the LOD as a direct result of armed conflict or caused by an instrumentality of war and incurred in the LOD during a period of war and did not result from a combat-related injury.

9.  On 14 May 2013, he concurred with the findings and recommendations of the PEB and waived his right to a formal hearing.  On 30 May 2013, the PEB was approved.

10.  Orders Number D144-01, issued by the U.S. Physical Disability Agency (USAPDA) on 24 May 2013, released him from active duty by permanent disability incurred as a result of injury while entitled to basic pay and placed him on the retired list with an effective date of 28 June 2013.  The orders indicated the disability did not result in an injury received in the LOD as a direct result of armed conflict or caused by an instrumentality of war and incurred in the LOD during a period of war and did not result from a combat-related injury.

11.  A DD Form 2860 (Claim for CRSC), 24 March 2014, shows he requested a combat-relatedness determination for Vertebra Fracture L4 with Degenerative Spine Disease as a result of hazardous service.

12.  He also provided a copy of a letter, dated 5 May 2014, wherein in the U.S. Army Human Resources Command, CRSC Branch, advised him of approval of his claim and award of a combat-related disability rating of 60% for Vertebra Fracture L4 with Degenerative Spine Disease and Radiculopathy Right Lower Extremity.

13.  Army Regulation 600-8-15 (Military Orders) sets the mandated operating tasks for the orders program.  Paragraph 2-22 states orders may be corrected by the organization that published the original orders to show the true states of affairs existing at the time the original orders was published.

14.  Army Regulation 635-40 (Personnel Separations – Physical Evaluation for Retention, Retirement, or Separation) sets the policies for the disposition of Soldiers found unfit because of physical disability reasonably to perform the duties of his/her office, grade, rank, or rating.  The regulation states:
   a.  A combat-related injury is 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.  An 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant initially injured his lower back in July 1996 while performing military jump training at the USMA.  The injury was determined to be in the LOD.  However, it appears that the 1996 injury was a back strain.  He continued to perform in his specialty for and additional 11 years.  
2.  In 2007, while serving on active duty, he reinjured his back.  The injury was determined to be in the LOD.  However, it appears that his 2007 injury (degenerative disc disease and right lower extremity radiculopathy) was only peripherally related to his 1996 injury.

3.  He underwent an MEB and PEB and was found physically unfit.  The PEB recommended a combined rating of 80% and his permanent disability retirement. He was permanently retired on 28 May 2013.  The orders stated his injury was not incurred in the LOD as a direct result of armed combat or an instrumentality of war.  This does not mean his injury was not incurred in the LOD; it means the LOD injury was not the direct result of armed combat or an instrumentality of war.

4.  Since his 2007 injury was so far removed from his 1996 injury, it appears that the PEB correctly found his injury was not the direct result of armed combat nor was it caused by an instrumentality of war.  

5.  There applicant provides insufficient evidence to show his PEB findings and recommendations and discharge were the direct result of error or inadequacies by the PEB and USAPDA.   His separation was accomplished in compliance with applicable regulations with no procedural errors, which would tend to jeopardize his rights.  

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)                                         AR20140009408



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ABCMR Record of Proceedings (cont)                                         AR20140009408



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