MEMORANDUM OF CONSIDERATION

IN THE CASE OF:        
                                   
BOARD DATE:           23 February 2000 
DOCKET NUMBER:   AR1999025645

I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.
	Mr. Kenneth H. Aucock		Analyst	

The following members, a quorum, were present:
	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Elizabeth Buchanon		Member	
	Mr.  Raymond J. Wagner		Member	

The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.
The applicant requests correction of military records as stated in the application to the Board and as restated herein.
The Board considered the following evidence:
Exhibit A - Application for correction of military 
records
Exhibit B - Military Personnel Records (including
advisory opinion, if any)

APPLICANT REQUESTS:  In effect, the applicant requests that his DD Form 214 and the results of his physical evaluation board (PEB) proceedings be corrected to show that his injuries were incurred in a combat zone and his disabilities resulted from combat related injuries.   

APPLICANT STATES:  That the PEB did not consider that he was first treated for epididymitis in Saudi Arabia.  The board did not consider that the traumatic events of war that he witnessed would lead to post traumatic stress disorder (PTSD).
 
EVIDENCE OF RECORD:  The applicant’s military records show:

The applicant enlisted in the Army for four years on 10 April 1984 and remained on continuous active duty until his discharge in 1993.  He was trained as a vehicle driver, attained the rank of Sergeant, and was assigned to various locations, to include Fort Carson, Colorado, Hawaii, and Fort Hood, Texas.  He served in Saudi Arabia from 19 September 1990 to 19 April 1991.  His last enlistment in the Army was for three years on 11 July 1991.  On 19 July 1991 the applicant completed and passed the Army physical fitness test.

On 22 July 1991 the applicant was treated for bilateral testicular pain.  A medical record from the urology clinic diagnosed his condition as epididymitis.

On 23 April 1992 the applicant was awarded a permanent P3 profile because of chronic epididymitis.

On 22 May 1992 a MOS/Medical Retention Board found that the applicant ‘s permanent profile prevented him from performing the full range of his duties in his primary MOS worldwide under field conditions.  The board recommended that he be referred to a medical evaluation board (MEB)/physical evaluation board (PEB) for further processing.  The findings and recommendation were approved on 26 June 1992.

On 23 November 1992 a MEB diagnosed the applicant’s condition as hypospadias, urethral meatal stricture, recurrent and chronic bilateral epididymitis, and hearing loss.  The MEB stated that the applicant had been admitted to the hospital with severe testicular pain and was noted to have urethral stricture disease.  Hospitalizations for recurrent high fever secondary to urinary tract infections were also taken place at Fort Leonard Wood.  The applicant also claimed to have persistent fever and, on examination had a markedly swollen testicle secondary to epididymitis.  He claimed to be unable to do any significant manual labor or exercise, and had significant difficulties with extended walks of longer than ¼ mile.  The urology service at Darnall Army Community Hospital recommended that the applicant be discharged from active service.  His situation was such that he was unable to perform his duties because of significantly restricted physical activity because of pain.  He was also predisposed to frequent infections of both the urinary tract and the testes, and was unable to walk for significant distances and could virtually do no physical exercises.  It was anticipated that he would have continued medical problems following discharge for an indefinite period and might indeed be lifelong.  The MEB stated that the applicant was unfit for duty and recommended that he be referred to a PEB.  The applicant indicated that he did not desire to continue on active duty and agreed with the findings and recommendation of the MEB. 

On 31 December 1992 a PEB determined that the applicant was unable to perform the duties of his MOS due to continued testicular pain, found the applicant physically unfit and recommended a disability rating of 10 percent, and that the applicant be separated with severance pay.  The PEB indicated in block 10C of the DA Form 1099 (PEB Proceedings) that the applicant’s disability did not result from a combat related injury as defined in 26 USC 104.  The applicant did not concur with the findings and recommendation, but waived a formal hearing.  He submitted a written appeal to the PEB, generally stating that he protested the 10 percent disability rating, but also stating, among other things, that the first time he was treated for his condition was in Saudi Arabia.  He was supported in this by his wife, a retired Army officer, a registered nurse, his pastor, and family friends, all of whom say that he was not the same person when he returned from Saudi Arabia. 

On 11 February 1993 the applicant was notified that his rebuttal was considered; however, no change to the original findings was warranted.  He was informed that he could request a formal hearing if he disagreed with the findings and recommendation.

On 10 March 1993 a formal PEB reevaluated the applicant’s medical records, adhering to its initial findings, and again recommending that the applicant be separated with severance pay with a disability rating of 10 percent.  The applicant appeared before the board with counsel.  He concurred in the findings and recommendation.  The findings and recommendation were approved          on 15 March 1993. 

On 25 March 1993 the Total Army Personnel Command directed that the applicant be discharged on 9 April 1993.  That command stated that the applicant’s disability did not result from a combat-related injury.

The applicant was discharged on 16 April 1993 because of physical disability  under the provisions of Army Regulation 635-40.  He had 9 years and 7 days of service and he received $25,677.00 in disability severance pay.

On 3 March 1995 the applicant requested assistance from a member of congress in order to return to active duty.  He stated that he had learned to deal with his medical problem through the use of over the counter medications.

On 5 March 1999 the applicant requested to the Army Community and Family Support Center in Alexandria, Virginia, to have his orders amended to show that he received his injuries in a combat zone.  He indicated that his DD Form 214 would show that his injuries were in a combat zone, and that the fact the orders did not was a simple oversight.  On 15 March 1999 he made a similar request to the National Personnel Records Center.  

Army Regulation 635-40 sets forth policies, responsibilities, and procedures that apply in determining whether a soldier is unfit because of physical disability, and if found unfit, provides for disposition of the soldier.  Paragraph 4-24 provides for the separation for physical disability with severance pay.

Paragraph 4-19 of the aforementioned regulation pertains to PEB decisions and states in effect that all findings of the board must be based on a preponderance of the evidence.  Recommendations must be supported by the findings.  

Paragraph 4-19k concerns disability compensation excluded from gross income, and states in pertinent part that for military disability retired or severance pay to be exempt from Federal taxation, the disability pay must show award by reason of a combat-related injury.  Within the meaning of 26 USC 104, combat-related injuries cover those disabilities attributable to the special dangers associated with armed conflict or the preparation or training for armed conflict.  

•	A soldier may be performing extrahazardous service even if not directly engaged in combat.  Extrahazardous 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.

That paragraph goes on to say that the PEB will record its determination of whether the injury was combat-related in block 10c of the DA Form 199 (PEB Proceedings).
        
Appendix C, paragraph C-7, states in effect that the PEB will determine whether the soldier’s disability resulted from a combat related injury.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The applicant returned from Saudi Arabia in April 1991, reenlisted in the Army for three years on 11 July 1991, and completed and passed the Army physical fitness test in that same month.  He may have been treated for epididymitis in Saudi Arabia, as he has stated; however, there is no evidence, nor has the applicant provided any, of such treatment there.  The evidence of record shows that he was first treated for bilateral testicular pain on 22 July 1991.  Be that as it may, the PEB made a determination that his disability did not result from a combat related injury.  The applicant has not provided any evidence to dispute this determination. 

2.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

3.  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 the aforementioned requirement.

4.  In view of the foregoing, there is no basis for granting the applicant’s request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___rvo___  ___eb__  ___rjw___  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX
CASE ID	AR1999025645	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000223	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  269	108.07	
2.		
3.		
4.		
5.		
6.