MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           2 October 2003                   
	DOCKET NUMBER:   AR2003084161

	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. Carl W. S. Chun		Director	
	Mr. G. E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Ms. Kathleen A. Newman		Chairperson	
	Mr. Lester Echols		Member	
	Mr. John T. Meixell		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:  That the DD Form 199 (Physical Evaluation Board Proceedings (PEB) block 16 be corrected to show that his disability retirement was in the line of duty and caused as a direct result of armed conflict or an instrumentality of war.

APPLICANT STATES:  Because of this notation he will have to work four additional years before he can retire. 

EVIDENCE OF RECORD:  The applicant's military records show:

He entered active duty on 29 May 1967.  He completed training and reenlisted on 15 February 1968.  He served in Okinawa and Vietnam for 2 years and 16 days.

In May of 1970 he was diagnosed as having far advanced active pulmonary tuberculosis (TB).  Based on this diagnosis he was referred to a Medical Evaluation Board and then to a Physical Evaluation Board (PEB).

On 15 September 1970, the PEB recommended that he be placed on the temporary disability retired list (TDRL).  It determined that his TB was incurred in the line of duty during a time of war or national emergency and was likely to be permanent in nature.  The PEB also determined that his TB was not a result of armed conflict or caused by an instrumentality of war.

He was placed on the TDRL affective 19 November 1970.

At his first annual TDRL examination (September 1971), it was reported that he was found to also have tinnitus and partial hearing loss possibly as a result of the treatment for his TB.  He was also found to have developed dyshidrosis of the hands and papule vesicle eruptions on the trunk and extremities following his placement on the TDRL. 

He had follow-up evaluations in 1972, 1973, and 1974 with continuation of the three diagnoses noted above.

On 6 December 1974 the PEB determined that he was permanently unfit for service due to TB and hearing loss with tinnitus.  It determined that he should be medically retired with a 100% rating. 

On 14 January 1975, the applicant was notified that he was being permanently medically retired effective 31 January 1975.

In similar cases the Civil Service Retirement System has stated that no credit for military service is given to an employee who receives military retired pay unless the retired pay is awarded on account of a service-connected disability incurred in combat with an enemy of the United States or because of a service-connected disability caused by an instrumentality of war and was incurred in the line of duty during a period of war.

The current Department of Defense definition of the term “Direct Result of Armed Conflict” is a disease or injury incurred in the line of duty as a direct result of armed conflict.  The fact that 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 to support a combat-related determination.  There must be a definite causal relationship between the armed conflict and the resulting disability. 

The current Department of Defense definition of the term “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.  It may also include such instrumentalities not designed primarily for Military Service if use of or occurrence involving such instrumentality subjects the individual to a hazard peculiar to Military Service.  Such use or occurrence differs from the use or occurrence under similar circumstances in civilian pursuits.

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

1.  The Board finds that his placement on the TDRL and subsequent medical retirement were proper.

2.  TB is a common disease found in many parts of the world including Vietnam and Okinawa.  The fact that the applicant contracted this disease while serving in a combat area does not indicate that it is a direct result of armed conflict.  

3.  While the applicant’s condition occurred in the line of duty during a period of war, it was not as a result of armed conflict or caused by an instrumentality of war.

4.  Therefore, the Board finds that item 16, on the 9 September 1970 DD Form 199, is correct and that his TB was not the result of a injury or disease received as a direct result of armed conflict or caused by an instrumentality of war.

5.  Both the applicant’s skin condition and hearing loss were considered to be in the line of duty but were not diagnosed until after the applicant was on the TDRL. Neither of them were noted as a result of armed conflict or caused by an instrumentality of war.

6.  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.

7.  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

_KAN___  __LE  ___  ___JTM _  DENY APPLICATION

	Carl W. S. Chun
	Director, Army Board for Correction
	of Military Records

INDEX

CASE ID	AR2003084161	
SUFFIX		
RECON		
DATE BOARDED	20031002	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.