IN THE CASE OF:	   

		BOARD DATE:	  15 September 2015

		DOCKET NUMBER:  AR20150000242 


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 his disability was based on line of duty (LOD) injuries. 

2.  The applicant states his discharge orders indicate that his permanent disability retirement was not based on LOD injuries.  He is unable to obtain service computation and credit with Department of Defense due to this error.  All of his injuries were sustained between 2005 and 2006, during an Operation Iraqi Freedom (OIF) IV deployment, and during military airlift operations with the 101st Airborne, Company B, 626th Brigade Support Battalion.  The care provided in Iraq was only initial evaluations and surgeries.  He had supplemental care upon transfer to the Warrior Transition Battalion that occurred immediately following redeployment.  He believes that an error appears on his DA Form 199 (Physical Evaluation Board (PEB) Proceedings), block 10 that states "recommend finding that Soldier's retirement is not based…line of duty during period of war."

3.  The applicant provides copies of his separation orders, DA Form 199, and his 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.  The applicant, with prior Regular Army and Army National Guard service, enlisted in the Regular Army on 4 February 2004 with occupational specialties 92A (Automated Logistical Specialist) and 91H (Track Vehicle Repairman).  

3.  He served in Iraq from 22 September 2005 through 22 September 2006.

4.  His 16 April 2010 Medical Evaluation Board (MEB) found the applicant to be suffering from four conditions that were determined to be medically unacceptable colon intervertebral disc syndrome of the cervical spine, intervertebral disc syndrome of the thoracolumbar spine, and left foot hallux valgus - status post four surgeries.  It provided the following on these conditions:

Service member states left foot pain started in April 2004 at Fort Lee. He experienced pain along the medial bottoms of his feet after physical training and was given a profile, no running, no rucking, and authorized civilian footwear Sep 2006 at Fort Campbell.  Service member was evaluated by a podiatrist Oct 2006 (x-rays showed fractures along the 1st metatarsal bone).  Treatment included orthotic device and a profile. In April 2007 podiatrist removed part of a fractured sesamoid bone.  In Jun 2007, he returned to duty with a bunion profile. Service member reports his boot size changed from 9Y2 to 10Y2, and ultimately he required a size 11 boot.  Aug 2007 service member was seen at Wright Patterson Air Force Base where he was x-rayed, MRI and cast Nov 2007 at Fort Campbell, podiatrist initiated a Medical Board.  In late Dec 2007 it was stopped.  A new podiatrist had arrived at Fort Campbell and a fusion was performed in Apr 2008.  In Apr 2009 a 4th surgery for screw removal was performed.  Currently he has pain and antalgic gait.  He cannot bear to touch the front of his left foot to the ground and he partially compensates with a cane.  Numbness of his great toe, development of a postoperative bunion, scar, deformity and occasional swelling with decreased range of motion.  He cannot perform his MOS because he is unable to walk or stand for prolonged periods of time without his cane.


Cervical spine herniation: service member says it started in 2002 while activated from the National Guard during OEF call-up at Fort Dix. They were training for deployment, performing overhead stretcher lifts.

Thoracic spine herniation: service members says it started Sep 2005 while serving in Iraq.  He was loading and unloading heavy obstacles and barriers.  Service member was restraining a bundle that had burst when the forklift operator attempted to restrain the loose contents with his forklift.  Apparently the fork-lift operator could not hear him scream and persisted in applying his machine pressure. As the service member's helmet began to crush, he thought he was going to die.  He had left-sided hematomas, pain, lost range of motion, stiffness, spasm, and a severe emotional shock because the forklift operator was his good friend. 

5.  The PEB Proceedings show he was found unfit for duty due to three conditions.  The record of proceedings provided the follow at –

* item 8e - the conditions were incurred in the LOD in a time of national 
emergency
* item 10A states the Soldier's retirement is not based on a disability from an injury or disease received in the LOD as a direct result of armed conflict or caused by an instrumentality of war and incurring a LOD during a period of war as defined by law  
* Item 10C - the disability did not result from a combat related injury as defined in Title 26 U.S. Code

6.  101st Airborne Division Orders 188-0612, dated 7 July 2010, directed the applicant’s medical retirement effective 28 September 2010 with a 30% disability rating.  It states his disability was not based on an injury or disease received in the LOD as a direct result of armed conflict or caused by an instrumentality of war and incurring a LOD during a period of war as defined by law and was not a combat related injury. 

7.  The applicant was medically retired on 28 September 2010.

8.  Army Regulation 600-8-105 (Military Orders) established policies and mandated operating tasks for the orders program of the Military Personnel (MILPER) System and is linked to Army Regulation 600–8. It establishes standards and provides an operational document in a logical sequence.  The statement "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: (Enter Yes or No) is to be included on physical disability retirement orders.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's 7 July 2010 retirement orders state that his "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 (emphasis added) incurred in the LOD during a war period as defined by law: NO."  This statement is required to be placed on all retirement orders in accordance with Army Regulation 600-8-105.  

2.  A close reading of the available evidence does not indicate that the Soldier's unfitting conditions were not in LOD, but only that it was not in LOD as a combat injury.  Item 8e of his DA Form 199, dated 22 December 2009, clearly indicates that his unfitting condition was incurred in LOD.

3.  Based on the foregoing, there is no basis to grant the applicant’s 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)                                         AR20150000242



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ABCMR Record of Proceedings (cont)                                         AR20150000242



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