IN THE CASE OF:	  

		BOARD DATE:	  17 September 2015

		DOCKET NUMBER:  AR20150002978 


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 the right shoulder injury he sustained in 1991 as a combat-related injury.

2.  The applicant states the medical evidence supports a finding of a combat-related injury.

3.  The applicant provides copies of a DD Form 689 (Individual Sick Slip), DA Form 2173 (Statement of Medical Examination and Duty Status), SF 513 (Consultation Sheet), SF 600 (Physician/Patient Counseling), and the last page of a line of duty (LOD) determination.

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's service medical and dental records are believed to be on permanent loan to the Department of Veterans Affairs and are not available for review.

3.  The applicant enlisted in the Alabama Army National Guard (ARNG) on 18 October 1983.  He was called to active duty for initial active duty training on 4 January 1984, completed training, and was awarded military occupational specialty 55B (Ammunition Specialist).

4.  He was released from active duty on 29 June 1984 and returned to his ARNG unit. 

5.  On 21 November 1990, the applicant was called to active duty in support of Operation Desert Shield/Desert Storm, serving on active duty until 31 August 1991.

6.  The medical documents, provided by the applicant, provide the following:

   a.  A 22 April 1991 SF 600 states the applicant had right shoulder pain since March; it had started with lifting.
   
   b.  A 8 July 1991 DD Form 689 directed no overhead work for 10 days due to a problem with his right arm.
   
   c.  A 31 July 1991 SF 513, for a referral for right shoulder pain, shows the applicant was treated for pain in the right shoulder.  He denied having an injury and had full range of motion with pain on external rotation at the shoulder.  The tentative diagnosis was bursitis.
   
   d.  A  2 August 1991 DA Form 2173 states the applicant injured his right shoulder while loading equipment into tracked vehicles at Port Dammam.  He did not report to sick call immediately because he thought the pain would go away.  He reported that the pain has not gone away.
   
   e.  A 9 August 1991 LOD document is only the last page and contains no identifying information as to what condition was found to be in the line of duty or who the determination was for.

7.  The U.S. Army Human Resources Command website defines combat-related injuries as having been incurred as a direct result of armed conflict; as a result of hazardous service; incurred in the performance of duty under conditions simulating war; or through an instrumentality of war.  It states:

   a.  The fact a member incurred the disability during a period of war or an area of armed conflict or while participating in combat operations is not sufficient by itself to support a combat-related determination.  There must be clear evidence of a definite, documented, causal relationship between the armed conflict and the resulting disability.  Armed conflict includes a war, expedition, occupation of an area or territory, battle, skirmish, raid, invasion, rebellion, insurrection, guerrilla action, riot or any other action in which service members are engaged with a hostile or belligerent nation, faction, force or terrorists.
   
   b.  Hazardous service includes those activities such as flight, diving and parachuting duty and are those where the disability was incurred during performance of duties that present a higher degree of danger to service personnel due to the level of exposure to actual or simulated armed conflict.  The fact a member incurred the disability during a period of hazardous service is not sufficient by itself to support a combat-related determination.  There must be clear evidence of a definite, documented, causal relationship between the hazardous service and the resulting disability.  Such service includes, but is not limited to aerial flight, parachute duty, demolition duty, experimental stress duty, diving duty and rescue missions.
   
   c.  An instrumentality of war is a vehicle, vessel or device designed primarily for military service and intended for use in such service at the time of the occurrence or injury.  Incurrence during an actual period of war is not required; however, there must be a direct, documented, causal relationship between the instrumentality of war and the resulting disability.  The disability must be incurred incident to a hazard or risk of service and be caused by the device itself.  Instrumentalities not designed primarily for military service are included if use of, or occurrence involving, such instrumentality subjects the individual to a hazard peculiar to military service.
   
   d.  The fact a member incurred the disability during a period of simulating war or in an area of simulated armed conflict or while participating in simulated combat operations is not sufficient by itself to support a combat-related determination.  There must be clear evidence of a definite, documented, causal relationship between the simulated armed conflict and the resulting disability. In general, this covers disabilities resulting from simulated combat activity during military training, such as war games, practice alerts, tactical exercises, airborne operations, grenade and live fire weapons practice, bayonet training, hand-to-hand combat training, rappelling and negotiating a combat confidence and obstacle course.  Physical training activities such as calisthenics and jogging or formation running and supervised sports activities are not included.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's right shoulder injury appears to have been incurred in the line of duty when he was loading equipment onto a vehicle.  There is no evidence that it was incurred as a result of armed conflict, hazardous service, under conditions simulating war, or through an instrumentality of war.

2.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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)                                         AR20150002978



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ABCMR Record of Proceedings (cont)                                         AR20150002978



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