BOARD DATE: 2 May 2017 DOCKET NUMBER: AR20150018403 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 BOARD DATE: 2 May 2017 DOCKET NUMBER: AR20150018403 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. BOARD DATE: 2 May 2017 DOCKET NUMBER: AR20150018403 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 retirement orders to show his injuries were combat-related. 2. The applicant states all of his injuries were combat-related and occurred while he was serving in the line of duty during Operation Enduring Freedom (OEF). He was hurt during a night mission; therefore, his retirement orders should show his injuries were combat-related. 3. The applicant provides: * his retirement orders * an extract of his DA Form 199 (Physical Evaluation Board (PEB) Proceedings) * Soldier Deployment History Out-Processing Report * Department of Veterans Affairs (VA) decision letter regarding his VA benefits * VA Disability Evaluation System (DES) Proposed Rating * his deployment orders * Outpatient Aeromedical Evacuation Command Clearance * Patient Movement Request CONSIDERATION OF EVIDENCE: 1. Following service in the Regular Army and Army National Guard (ARNG), the applicant reenlisted in the ARNG on 25 July 2008. 2. On 11 August 2011, he was ordered to active duty as a member of his Reserve Component unit in support of OEF. He entered active duty on 8 September 2011. He arrived in Afghanistan on 28 October 2011. 3. A Patient Movement Request shows that in December 2011, he presented to neurology after falling 5 feet from a wrecker landing on his hands. He was medically evacuated from Afghanistan on or around 27 March 2012. 4. On 23 September 2013, an informal PEB found him unfit for the performance of his military duties due to left lumbar radiculopathy, herniated disc, right lumbar radiculopathy, and right cubital tunnel syndrome status post-surgery. His DA Form 199 shows all of his injuries occurred in December 2011 in Afghanistan, when he fell off the roof of a military recovery vehicle. The DA Form 199 also include the following entry: "The disability did not result from a combat-related injury under the provisions of 26 USC 104 [Title 26, U.S. Code, section 104] or 10 USC 10216." 5. The PEB recommended his retirement due to physical disability with a combined rating of 60 percent. He concurred with the PEB findings and recommendation and waived a formal hearing of his case. 6. Orders Number 275-1102, issued by Headquarters, U.S. Army North (Fifth Army), Fort Sam Houston, TX, on 2 October 2013, directed the applicant's retirement because of physical disability effective 20 October 2013. These orders include the following entry: "Disability resulted from a combat related injury as defined in 26 USC 104: No" 7. The applicant was retired by reason of permanent disability on 20 October 2013. 8. The applicant provided a VA decision letter regarding his VA benefits and VA Disability Evaluation System Proposed Rating that shows his injuries are service-connected and were incurred during the Gulf war. REFERENCES: 1. Army Regulation 635-40 establishes the Physical Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. The regulation in effect at the time stated a disability may be considered a direct result of armed conflict if it was incurred while the Soldier was engaged in armed conflict or in an operation or incident involving armed conflict or the likelihood of armed conflict; if a direct causal relationship exists between the armed conflict or the incident or operation and the disability; or if the disability which is unfitting was caused by an instrumentality of war and was incurred in the line of duty during a period of war. A determination that a disability was caused by an instrumentality of war and incurred in the line of duty will be appropriate only when it is also determined that the disability so incurred in itself renders the member physically unfit and was incurred during one of the periods of war as defined by law. 2. Title 26 USC 104 states for purposes of this subsection, the term "combat-related injury" means personal injury or sickness that 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. DISCUSSION: 1. The applicant contends his retirement orders should be corrected to show his injuries were combat-related. 2. The evidence of record shows the applicant sustained injuries in December 2011 in Afghanistan, when he fell off the roof of a military recovery vehicle. A PEB found him unfit for duty and awarded him a permanent disability rating of 60 percent. The PEB found the disability did not result from a combat-related injury under the provisions of 26 USC 104. 3. Title 26 USC 104 provides that the term "combat-related injury" means personal injury or sickness that 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. 4. The applicant's injuries occurred while he was performing his duties in Afghanistan; however, at the time of his injuries, there is no evidence that indicates he was directly engaged with the enemy, nor was he simulating war or performing hazardous duty. Simply having a line of duty injury while deployed to a combat area is insufficient to justify a finding of combat-related injury. His condition was in the line of duty and fully compensable; it simply was not a direct result of armed conflict. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150018403 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150018403 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2