IN THE CASE OF: BOARD DATE: 25 August 2016 DOCKET NUMBER: AR20150011674 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x ____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 25 August 2016 DOCKET NUMBER: AR20150011674 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. IN THE CASE OF: BOARD DATE: 25 August 2016 DOCKET NUMBER: AR20150011674 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 DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 26 February 2010, to show his retirement was based on a disability from an injury or disease received in the line of duty (LOD) as a direct result of armed conflict or by an instrumentality of war incurred in the LOD during a period of war as defined by law. 2. The applicant states: a. His DA Form 199 states his injury wasn't based on a disability resulting from injury or disease received in the LOD as a direct result of armed conflict or caused by a instrumentality of war. b. He was medically evacuated from Balad, Iraq, to Germany due to an injury caused by an instrumentality of war. An instrumentality of war is a vehicle, vessel, or device designated primarily for military service and intended for use in such service at the time of the occurrence or injury. c. He doesn't understand why it was labeled as a Global War on Terrorism training incident. His foot was broken while he was serving in Iraq. He was told that since his vehicle didn't have a mounted weapon it wasn't a combat vehicle. He performed over 20 combat convoys. His injury happened when he was in country and from an instrumentality of war. d. His orders and records show he was medically evacuated out of country to a Warrior Transition Unit. He was in a wheelchair for 3 years due to having nerve and complex regional pain syndrome. Complex regional pain syndrome typically develops after an injury, surgery, stroke, or heart attack, but the pain is out of proportion to the severity of the initial injury. e. For the purpose of calculating his service computation date for his civilian job, he was told an employee who is a retired member of a Uniformed Service is entitled to credit for active military service only if his retirement was based on disability resulting from injury or disease 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. f. He contends his DA Form 199 should be corrected because he wasn't in a training environment, it was a war zone. 3. The applicant provides: * service medical records * 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. Having prior active enlisted service, the applicant enlisted in the Regular Army on 17 September 2007 for a period of 3 years and 15 weeks. He served in Iraq from 30 August 2008 to 15 April 2009. 3. He provided a Standard Form 600 (Health Record – Chronological Record of Medical Care), dated 19 November 2008, showing a subjective history of acute onset of right foot pain occurred 4 weeks ago when he slipped while climbing into his vehicle. His foot caught in the stirrup and he twisted his ankle/foot. He was diagnosed with foot pain (soft tissue) with possible navicular fracture. This injury was work related, not battle related. 4. He provided a Standard Form 600, dated 24 November 2008, showing he was diagnosed with a closed fracture of navicular bone (right foot). This injury was work related, not battle related. 5. On 21 December 2009, a medical evaluation board (MEB) diagnosed him with: * right posterior tibial tendonitis * right foot reflux sympathetic dystrophy 6. The MEB recommended his referral to a PEB. 7. On 26 February 2010, an informal PEB found him physically unfit due to reflux sympathetic dystrophy and tendonitis of the right foot evaluated as neuritis of the tibial nerve. 8. The disability description section of his DA Form 199 states he sustained a right navicular bone fracture, resulting in evacuation from theater. 9. His DA Form 199 also states: a. The Soldier's retirement is not based on disability from injury or disease received in the LOD as a direct result of armed conflict or by an instrumentality of war and incurring in the LOD during a period of war as defined by law. b. The disability did not result from a combat-related injury as defined in Title 26, U.S. Code, section 104. 10. The PEB recommended a 30-percent disability rating and permanent disability retirement. On 26 February 2010, he concurred with the PEB findings and waived a formal hearing. 11. On 2 March 2010, the U.S. Army Physical Disability Agency approved the PEB findings. 12. Headquarters, National Training Center and Fort Irwin, Orders 067-0026, dated 8 March 2010, permanently retired him effective 29 April 2010 with a 30-percent disability rating. Paragraph 2 of these orders state: a. "Disability is based on injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a period of war as defined by law: No." b. "Disability resulted from a combat related injury as defined in 26 USC 104 [Title 26, U.S. Code, section 104]: No." 13. On 29 April 2010, he retired by reason of permanent disability. REFERENCES: 1. Title 26, U.S. Code, section 104, states 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 under conditions simulating war, or caused by an instrumentality of war. 2. The U.S. Army Human Resources Command Adjutant General Directorate defines an "instrumentality of war" as a vehicle, vessel, or device (e.g., combat vehicles, weapons, Agent Orange) designated primarily for military service and intended for use in such service at the time of the occurrence or injury. It may include such instrumentalities not designated 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: 1. The applicant contends his foot injury was caused by an instrumentality of war. 2. The evidence of record shows * he slipped while climbing into his vehicle while serving in Iraq in October 2008 * his foot caught in the stirrup and he twisted his ankle/foot * he sustained a right navicular bone fracture, resulting in his medical evacuation from Iraq 3. The PEB determined his disability was not the direct result of armed conflict or an instrumentality of war and did not result from a combat-related injury. He concurred with the PEB findings and recommendation on 26 February 2010. 4. There is no evidence his foot injury was caused by the unique use or design of the military vehicle as defined in Title 26, U.S. Code, section 104. The evidence of record clearly shows he slipped while climbing into the vehicle. There is no evidence to suggest the unique use or design of the military vehicle caused him to slip. 5. There is no evidence in the available records and the applicant has not provided sufficient evidence showing his disability was incurred as a direct result of armed conflict, while engaged in extra hazardous service under conditions simulating war, or caused by an instrumentality of war. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011674 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011674 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2