IN THE CASE OF: BOARD DATE: 12 November 2015 DOCKET NUMBER: AR20150002266 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) to show his physical disability retirement is based on disability from injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurring in line of duty during a period of war as defined by law. 2. The applicant states that his medical evaluation board (MEB)/PEB documents state that his injury was not incurred in the line of duty during a period of war on page 2, but on page 1 it clearly states that the rated conditions, in fact, did occur in the line of duty. He was injured on 20 June 2004 while deployed to Iraq and those injuries are what led to his medical retirement on 27 January 2009. 3. The applicant provides a copy of his DA Form 199, dated 14 October 2008. 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. The applicant enlisted in the Virginia Army National Guard (VAARNG) on 18 September 2001 for a period of 8 years. He completed training and was awarded military occupational specialty 52D (Power Generator Repairman). 3. On 17 November 2003, the VA National Guard published Orders 321-130 ordering the applicant to active duty in support of Operation Iraqi Freedom for a period of 730 days. He was directed to report to his mobilization station on 10 December 2003. The applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty) for this period of active duty is not filed in his official military personnel record (OMPF). 4. There is no record of a DA Form 2173 (Statement of Medical Examination and Duty Status) filed in his OMPF that would have provided a description and then determination of in line of duty for injuries or diseases incurred while performing military duties. There is no MEB filed in his OMPF. 5. A DA Form 199 provided by the applicant and filed in his OMPF shows a PEB convened on 14 October 2008 to consider the applicant's medical condition. a. The Disability Description section shows, in part: (1) VA Code 9411 9434 "Post traumatic stress disorder (PTSD) and major depressive disorder (also claimed as anxiety disorder, NOS (not otherwise specified)), sleep disorder, and short and long term memory loss secondary to being electrocuted. This condition is unfitting and stable." The condition was noted as in line of duty at the time of national emergency or after 14 September 1978 (incurred or aggravated) and the proximate result of performing duty. (2) VA Code 8045 9304 "Traumatic brain injury (TBI) with headaches (also claimed as vertigo). This condition is unfitting and stable." The condition was noted as in line of duty at the time of national emergency or after 14 September 1978 (incurred or aggravated) and the proximate result of performing duty. b. The PEB found the applicant to be physically unfit and recommended a combined rating of 60 percent and that the applicant’s disposition be "permanent disability retirement." c. Item 10a shows, "The Soldier's retirement is not based on disability from injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurring in line of duty during a period of war as defined by law." d. The applicant concurred with the proceedings and waived a formal hearing. e. The PEB proceedings were adjudicated as part of the pilot disability evaluation system under the Policy and Procedural Directive-Type Memorandum (DTM) dated 21 November 2007. 6. Orders 326-0136, Headquarters, Walter Reed Army Medical Center, dated 21 November 2008, announced the applicant's retirement effective 27 November 2008 due to physical disability and further stated: a. "Percentage of Disability: 60." b. "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 incurring in the line of duty during a period of war as defined by law: No." c. "Disability resulted from a combat related injury as defined by 26 USC 104 (Title 26, U.S. Code, section 104): No." 7. The applicant was retired due to permanent physical disability effective 27 January 2009. He had completed 5 years, 5 months and 4 days of cumulative active duty service. 8. His medical records are not available for review. 9. A review of his OMPF shows he applied twice for combat related special compensation to the U.S. Army Human Resources Command (HRC). His applications were denied on 8 July 2011 and 12 August 2015. HRC was not able to verify from the evidence of record that the applicant’s conditions of PTSD, major depressive disorder, migraine headaches or TBI were combat-related. 10. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) sets forth policies, responsibilities, and procedures in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or his office, grade, rank, or rating. a. Chapter 4 (Procedures), paragraph 4-19 (PEB decisions - common criteria), subparagraph a (Determinations), provides that the voting members of a PEB make findings and recommendations in each case on the basis of the instructions set forth in paragraphs b through q. The board decides all questions by majority vote. All findings must be based on a preponderance of the evidence. Recommendations must be supported by the findings. b. Subparagraph j (Armed conflict - instrumentality of war) explains that certain advantages accrue to Soldiers who are retired for physical disability and later return to work for the Federal Government when it is determined that the disability for which retired was incurred under specific circumstances. It also states the PEB will determine if: (1) The disability resulted from injury or disease received in line of duty as a direct result of armed conflict and which itself renders the Soldier unfit. A disability may be considered a direct result of armed conflict if: (a) The disability 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; while the Soldier was interned as a prisoner of war or detained against his will in the custody of a hostile or belligerent force; or while the Soldier was escaping or attempting to escape from such prisoner of war or detained status. (b) A direct causal relationship exists between the armed conflict or the incident or operation, and the disability. (2) The disability is unfitting, was caused by an instrumentality of war, and was incurred in line of duty during a period of war as defined by law. c. Subparagraph k (Disability compensation excluded from gross pay) explains that disability pay is awarded by reason of a combat-related injury within the meaning of Title 26, U.S. Code, section 104. Combat-related injuries cover those disabilities attributable to the special dangers associated with armed conflict in the preparation or training for armed conflicted. (1) A Soldier may be performing extra hazardous service even if not directly engaged in armed conflict. Extra hazardous service includes but is not limited to aerial flight duty, parachute duty, demolition duty, diving duty or experimental stress duty. The conditions simulating war include, but are not limited to the following activities: the performance of tactical exercises, airborne operations, leadership reaction courses, grenade and live fire weapons practice, bayonet training, hand-to-hand combat training, repelling and combat obstacle courses. (2) The PEB will determine if the injury was combat-related as defined by Title 26, U.S. Code, section 104. 11. Title 26, U.S. Code, section 104 provides special rules for combat-related injuries. For purposes of this subsection, 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. 12. Army Regulation 15-185 (Army Board for Correction of Military Records) sets forth the policy and procedures for the ABCMR. Paragraph 2-9 provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that his PEB should be corrected to show his physical disability retirement is based on disability from injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurring in line of duty during period of war as defined by law. 2. The applicant's medical records and MEB proceedings are not available for review. The applicant states that he was injured on 20 June 2004 while deployed to Iraq, but the specific nature of his injury and the circumstances of how it occurred are not available. While the evidence shows he suffers from TBI and PTSD due to potentially being known. As a power generator repairman, it is plausible that during the performance of his duties he was electrocuted. It appears the PEB determined his injury occurred in the performance of his military duties or in line of duty. 3. Incurring disabilities while in a theater of operations or in training exercises is not, in and of itself, sufficient to determine the injury was combat-related. The applicant must show the disability was incurred while engaged in combat, while performing duties simulating combat conditions, or while performing especially hazardous duties such as parachuting or scuba diving. 4. The regulations governing this Board's operation require that the information on the applicant's PEB proceedings must be presumed to have been in accordance with applicable law and regulations unless the applicant can provide sufficient evidence to overcome that presumption. 5. In view of the foregoing, the applicant has provided insufficient evidence to show his injury was caused by direct armed conflict and that an error or an injustice occurred in the preparation and ultimate decision of PEB. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL SHEARING ___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) AR20150002266 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1