IN THE CASE OF: BOARD DATE: 5 November 2015 DOCKET NUMBER: AR20150002806 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 the following: * amendment of the DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 1 October 2007 (in effect, 24 September 2007) blocks 8a-b, entry 5 to show the entry, "injury is based on a line of duty (LOD) as a direct result of armed conflict or caused by an instrumentality of war or incurred in LOD (ILOD) during a war period as defined by law" * amendment of Orders Number D364-04, dated 29 December 2008, to show her disability resulted from a combat related injury 2. The applicant states, in effect: a. Her injury occurred in a C-130 in Kandahar, Afghanistan, on 6 August 2005. She disagrees with the findings that the incident was caused by turbulence or the intentional restarting of the plane’s engine. She also disagrees that the C-130 is not an instrument of war because Lockheed Martin has a prototype of it. Even if the incident did occur in a Lockheed Martin plane, she was still in a combat zone and it happened while the pilots were doing combat flying maneuvers to evade enemy fire. An investigation found that the flying maneuvers were done in excess, causing two engines on the left side of the plane to fail. The C-130 then barrel rolled in midair, throwing unsecured items and equipment throughout the plane injuring several Soldiers. The g-force was so intense that the winch used to pull in pallets ripped off the back wall of the fuselage, landing in the aisle, breaking half way through the floor. b. In an effort to recover the plane, the pilot nose-dived, kick-starting the engines. Her back and pelvis were severely jarred causing an undetected hip fracture. She endured pain for several months while in the combat zone and was finally evacuated from Afghanistan when she could no longer walk on her hip without excruciating pain. Other injuries were also detected upon evacuation resulting in a neck fusion and lower back surgery which ended her military career. c. At the time she was a military technician (both a Soldier and civilian employee for the Army). She was able to keep her civilian job because military technicians hurt in the LOD in a combat zone have the option to retain their civilian position. An Army Regulation (AR) 15-6 investigation conducted by the 81st Regional Support Command concluded that her disability was combat related and determined she should retain her civilian position. She believes an injustice occurred. She is requesting what she believes she deserves. She went to war for her country, was hurt in a C-130 while in Afghanistan, and lost her military career. She has done her part; she requests that the Board do the right thing. d. Before signing the PEB findings, she hesitated knowing the injury occurred in a combat zone, in a military plane, during a time of war; but, she was exhausted from the 3-year mobilization and three surgeries. With the passage of time and intense counseling she now believes she has suffered an injustice. 3. The applicant provides copies of the following: * Orders Number 04-358-00327 * Permanent Orders (PO) Number 111-001 * four Standard Forms (SF) 600 (Medical Record – Chronological Record of Medical Care) * two DD Forms 689 (Individual Sick Slip) * SF 519-B (Radiologic Consultation Request/Report) * DA Form 3349 (Physical Profile) * two LOD determination memoranda * two DA Forms 2173 (Statement of Medical Examination and Duty Status) * medical diagnosis * Medical Evaluation Board (MEB) Narrative Summary * DA Form 2847 (MEB Proceedings) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Orders Number D364-01 * Final Action Pursuant to an AR 15-6 Investigation to Determine the Applicability of Combat Related injured – Non-Dual Status Technical Status memorandum 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 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 the cases 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. 2. The applicant's military records show she enlisted in the U.S. Army Reserve (USAR) on 28 October 2002 and she held military occupational specialty 42L (Administrative Specialist). 3. She provided a copy of Orders Number 04-358-00327, issued by the 81st Regional Readiness Command on 23 December 2004, ordering her to active duty in support of Operation Enduring Freedom for 545 days. 4. She entered active duty on 10 February 2005 and she served in Afghanistan from 24 April 2005 through 23 March 2006. 5. She also provided copies of the following: a. Three SFs 600 showing she received medical treatment between 6 August 2005 and 2 February 2006 for acute lower back pain as a result of flight turbulence. b. A DD Form 689, dated 8 March 2006, showing she went on sick call. c. An SF 600 showing she received medical treatment on 8 March 2006 for chronic back pain and was diagnosed with a possible hip fracture. d. An SF 519-8 showing she received x-rays of her left hip and spine on 8 March 2006. e. A DA Form 3349, dated 8 March 2006, showing she was assigned a temporary profile of 1, 1, 4, 1, 1, 1 for back pain, a herniated disc, and hip pain. She was instructed to use crutches until re-deployed and no weight-bearing on left lower extremity. f. A DD Form 689, dated 21 March 2006, showing she went on sick call. g. An SF 600 showing she received medical treatment for a herniated disc on 23 March 2006. h. An Informal LOD Determination memorandum, dated 21 April 2006, showing her injuries sustained on 5 August 2005 were determined to be ILOD. i. A DA Form 2173, dated 17 May 2006, showing she received medical treatment for a left hip injury as a result of running in February 2006. The form stated a magnetic resonance imaging completed in Germany reflected stress fractures of the left femoral neck extending into the lesser trochanter. Presumption of LOD was applied. j. An Informal LOD Determination memorandum, dated 22 May 2006, showing the injuries she sustained in February 2006 were determined to be ILOD. k. A DA Form 2173, dated 6 April 2007, showing she received medical treatment for a back injury. The form stated she originally injured her back during an aircraft incident on 5 August 2005 in Afghanistan. She further injured her back while running in February 2006 and was subsequently evacuated from the theater. l. A medical diagnosis completed at Dwight Eisenhower Army Medical Center, Fort Gordon, GA, showing she was diagnosed with chronic low back and neck pain. The report stated she was deployed to Afghanistan in April 2005. In August 2005, she was returning from rest and recuperation (R&R) on a C-130 when they incurred engine failure and the plane bounced around severely. She was thrown about inside the plane and injured her neck, lower back, and hip. She had continuous pain after that time; but she was only treated with medication. No x-rays or tests were done until February 2006. She underwent surgery on 11 September 2006 and she continued to have constant lower back pain with radiation into the left buttock and down the back of the left leg on an intermittent basis. She underwent cervical spine surgery in December 2006. She stated that most of the pain in her neck had cleared. The examining physician recommended a PEB for further disposition. 6. On 12 July 2007, an MEB convened and determined her chronic low back and neck pain were medically unacceptable in accordance with AR 40-501 (Standards of Medical Fitness), paragraphs 3-30, 3-39h, and 41e(1). She was referred to a PEB. 7. On 24 September 2007, an informal PEB convened and considered her unfitting medical conditions of C5-C7 fusion with persistent difficulty when wearing Kevlar, lumbar degenerative disc disease, and left lower extremity radiculopathy. The PEB found her physically unfit and recommended a combined disability rating of 40 percent (%) and placement on the Temporary Disability Retired List (TDRL). The form stated the PEB did not award armed conflict for the injury. The Lockheed C-130 has a civilian version (L-100) and therefore, it is not unique to the military. Shutting down an engine on a C-130 causes yaw (level turning) and not turbulence. Aircraft turbulence is not combat-related. 8. She was placed on the TDRL on 27 January 2008. Her DD Form 214 shows she was credited with completing 2 years, 11 months, and 18 days of net active service this period. 9. On 16 December 2008, an informal PEB convened and considered her unfitting medical conditions of spinal fusion, degenerative arthritis of the lumbar spine, and weakness in her left lower extremity. Based on the TDRL examination, the PEB found she remained unfit to reasonable perform the duties required of her grade and military specialty. The PEB recommended her for a permanent disability retirement with a combined rating of 40%. 10. She concurred with the findings and recommendation of the PEB and waived her right to a formal hearing on 18 December 2008. The PEB was approved on 29 December 2008. 11. Orders Number D364-01, issued by the U.S. Army Physical Disability Agency (USAPDA) on 29 December 2008, retired her for permanent disability with a 40% rating. The orders indicated the disability did not result 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. 12. She further provided a copy of a Final Action Pursuant to an AR 15-6 Investigation to Determine the Applicability of Combat Related injured – Non-Dual Status Technical Status memorandum, dated 20 April 2010, in which the Director, Full-Time Support Directorate, USAR Command, stated she concurred with the findings that the applicant's injuries were combat-related, the result of an incident involving a military aircraft in flight, an instrumentality of war. She also concurred with the finding that the applicant's disability did not interfere with the performance of her duties as a civilian employee. 13. In a letter, dated 25 February 2015, the U.S. Army Human Resources Command, Combat-Related Special Compensation (CRSC) Branch, advised her of the denial of CRSC for a back scar, lumbar degenerative disc disease (status post laminectomy and cervical spine), degenerative joint disease, and left lower extremity radiculopathy because they were not able to establish a definite, documented, and causal relationship between the instrumentality of war and the resulting disabilities. 14. AR 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 state of affairs existing at the time the original orders was published. 15. AR 635-40 (Personnel Separations – Physical Evaluation for Retention, Retirement, or Separation) sets forth the policies for the disposition of Soldiers found unfit because of physical disability reasonably to perform the duties of their 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 member. 16. Title 26, U.S. Code, section 104, provides special rules for combat-related injuries. It states that the term “combat-related injury” means personal injury or sickness which is incurred as a direct result of armed conflict, while engaged in extra-hazardous service, or under conditions simulating war, or which is caused by an instrumentality of war. 17. CRSC, as established by Title 10, U.S. Code, section 1413a, as amended, provides for the payment of the amount of money a military retiree would receive from the Department of the Veterans Affairs (VA) for combat-related disabilities if it weren't for the statutory prohibition for a military retiree to receive a VA disability pension. Eligible members are those retirees who have 20 years of service for retired pay computation (or 20 years of service creditable for Reserve retirement at age 60) and who have disabilities that are the direct result of armed conflict, especially hazardous military duty, training exercises that simulate war, or cause by an instrumentality of war. Such disabilities must be compensated by the VA and rated at least 10% disabling. DISCUSSION AND CONCLUSIONS: 1. The evidence of record shows on 5 August 2005, the applicant, while returning to her theater following R&R, initially injured her lower back and neck during an engine failure of a C-130 due to turbulence. The injuries were determined to be ILOD. In February 2006, she reinjured her back while running and was subsequently evacuated from the theater. 2. On 24 September 2007, an informal PEB recommended the applicant’s placement on the TDRL with a combined disability rating of 40%. The DA Form 199 stated her injury was not combat-incurred as the Lockheed C-130 was not unique to the military as it had a civilian version and aircraft turbulence was not combat-related. This entry does not mean her 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. 3. On 16 December 2008, an informal PEB found she remained unfit and recommended permanent retirement. She concurred with the PEB and waived her right to a formal hearing. Orders were published retiring her accordingly on 29 December 2008. The orders indicated the disability was not incurred 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. 4. Combat-related injury determinations require evidence of a direct causal relationship to war or instrumentality of war. While she incurred her disabilities in a combat zone during a period of war, there is no evidence of enemy activity associated with that incident. There must be a definite causal relationship between the armed conflict and the resulting disability. Her injuries must meet this criterion for an amendment of her orders and DA Form 199 to indicate such. 5. A PEB found her injuries were not the direct result of armed combat nor were they caused by an instrumentality of war. 6. There is no evidence her PEB findings and recommendations and discharge were the direct result of error or inadequate analysis by the PEB and/or USAPDA. Her separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized her 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) AR20150002806 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150002806 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1