BOARD DATE: 11 August 2016 DOCKET NUMBER: AR20150003786 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: 11 August 2016 DOCKET NUMBER: AR20150003786 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: 11 August 2016 DOCKET NUMBER: AR20150003786 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 military service records to show a higher disability rating percentage (%) and placement on the permanent disability retired list (PDRL) based on combat-related conditions/disabilities as defined in Title 10 (Armed Forces), U.S. Code, section 10216 (10 USC 10216), Military Technicians (Dual Status). 2. The applicant states he served in Iraq from June 2010 to April 2011 and worked on mine-resistant ambush-protected (MRAP) vehicles. He suffered injuries to his knees from the repeated maintenance work he performed on the vehicles. He states that based on how he incurred his injuries, they qualify as combat-related under the provisions of (UP) 10 USC 1413 (Combat-Related Special Compensation (CRSC)). a. He also states the informal Physical Evaluation Board (PEB) did not adequately review his medical records and symptomology, which would have supported at least a 30% disability finding. If he had been counseled by his government-appointed Medical Evaluation Board (MEB) attorney, he would have requested a formal board. However, since he was not counseled, he was denied the opportunity to request a formal PEB. b. He concludes that his service-connected injuries were improperly assessed and the findings of the informal PEB were in error and unjust. 3. The applicant provides: * DA Form 199 (Informal PEB Proceedings) – incomplete copy * two memoranda – * Notice of Proposed Removal Action * Retention of Military Technician (Dual Status) Due to Combat-Related Disability (with enclosure) * two DA Forms 2823 (Sworn Statements) * his sworn declaration * Combat-Related Special Compensation (CRSC) Revised Program Guidance, January 2004 (10 USC 1413) * his Veterans Affairs (VA) medical records (119 pages) COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests correction of the applicant's military service records to show a higher disability rating percentage and placement on the PDRL. 2. Counsel, in effect, defers to the applicant. 3. Counsel provides his response to the Notice of Proposed Removal Action and a copy of the applicant's Power of Attorney, both dated 17 April 2014. CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the U.S. Army Reserve (USAR) on 21 June 2007 for a period of 8 years. He was ordered to active duty for training (ADT) on 5 July 2007. He completed training and was awarded military occupational specialty (MOS) 63B (Wheeled Vehicle Mechanic), which was later designated MOS 91B. 2. A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was ordered to active duty on 24 April 2010 in support of Operation Iraqi Freedom. He served in Iraq from 6 June 2010 to 7 April 2011, was honorably released from active duty on 7 May 2011, and was transferred to a USAR unit. He had completed 1 year and 14 days of net active service this period, 9 months and 27 days of total prior active service, and 2 years and 6 days of total prior inactive service. 3. Headquarters, U.S. Army Human Resources Command, Fort Knox, KY, Orders A-08-214611, dated 15 August 2012 (as amended), ordered the applicant to active duty on 10 August 2012 for a period of 358 days to participate in the Reserve Component Warriors in Transition Medical Retention Processing Program for completion of medical care and treatment. 4. A DA Form 199 shows an informal PEB convened on 14 February 2013 at Irwin Army Community Hospital, Joint Base Lewis McChord, Fort Lewis, WA. a. Section III (Medical Conditions Determined To Be Unfitting), Disability 1, shows surgeries (four times) for persistent lateral meniscal tear of the right knee (2011, 2012), chondromalacia of the right knee, osteoarthritis of the right knee (MEB Diagnosis (Dx) 1). (1) "Combat-area related condition. Insidious onset approximately 2011 attributed to climbing in and out of trucks as mechanic and driver while deployed on active duty orders to Iraq. Soldier received LOD [line of duty] (yes) and initially seen while in theater. Given knee brace and medication prior to redeployment and then received follow-on care in [continental United States]. Soldier received four repair and reconstructive surgeries followed by extensive post-operative care; however, continues to have persistent pain. His condition will not allow him to continue full military duties." (2) In accordance with Department of Defense (DoD) Instruction 1332.38 (Disability Evaluation System (DES)), Enclosure E3 (Operation Standards for the DES), P3.4.1.1 (Disability Evaluation), the PEB found the applicant (MOS 91B, Wheeled Vehicle Mechanic), unfit for military service due to his inability to perform key MOS and one or more Common Military Tasks, thus preventing him from functioning in his current assignment. (The PEB proceedings referenced the applicant's MEB Narrative Summary and Proceedings, Compensation and Pension Examination, and VA Rating Decision.) b. Section IV (Medical Conditions Determined Not To Be Unfitting) states: "The following was determined by the [medical treatment facility] to meet retention standards. The case file contains no evidence that the condition(s) independently or in combination render the Soldier unfit for assigned duties. Accordingly, the PEB finds the condition(s) not to be unfitting and therefore not ratable: MEB Dx 2: Chronic left knee strain; Dx 3: History of chronic sinusitis and recurrent sinusitis with near total obstruction of bilateral nares; Dx 4: Generalized anxiety disorder [GAD] (VA diagnosed as adjustment disorder with anxiety)." c. Section V (Administrative Determinations). The PEB made the following findings: * The disability disposition is not based on disease or injury incurred in the LOD in combat with an enemy of the United States and as a direct result of armed conflict or caused by an instrumentality of war and incurred in the LOD during a period of war (5 USC 8332, 3502, and 6303). (This determination is made for all compensable cases, but pertains to potential benefits for disability retirees employed in the Federal Civil Service.) * The disability did not result from a combat-related injury UP Title 26 (Internal Revenue Code), USC, section 104 (Compensation for injuries or sickness) or 10 USC 10216. * The disability severance pay was awarded for disability incurred in a combat zone or incurred while performing combat-related operations as designated by the Secretary of Defense (10 USC 1212). d. The PEB found the applicant physically unfit, recommended a rating of 20%, and that his disposition be separation with severance pay. e. The PEB President signed the PEB proceedings. f. On 25 February 2013, R___ A. Black, PEB Liaison Officer (PEBLO), confirmed that the applicant was briefed on the findings and recommendations of the PEB, and on the results of the findings and recommendations. g. On 25 February 2013, the applicant acknowledged he had been advised of the findings and recommendations of the informal PEB and had received a full explanation of the results of the findings and recommendations and legal rights pertaining thereto. He indicated with two checkmarks that he concurred with the PEB proceedings and waived a formal hearing of his case and that he did not request reconsideration of his VA ratings. He also placed his signature on the document. h. The PEB proceedings were approved on 7 March 2013. 5. Headquarters, 1st Infantry Division, Fort Riley, KS, Orders 100-0017, dated 10 April 2013, discharged the applicant on 6 May 2013 UP Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation) with a disability percentage of 20% and authorized disability severance pay. The additional instructions show, in pertinent part: * Disability is based on 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 as defined by law: No * Disability resulted from a combat-related injury as defined in 26 USC 104: No * Disability was incurred in a combat zone or incurred during the performance of duty in combat-related operations as designated by the Secretary of Defense: Yes 6. In support of the application, the applicant and his counsel provide the following documents. a. A DA Form 199 that shows an informal PEB convened on 14 February 2013 at Irwin Army Community Hospital, Joint Base Lewis McChord, Fort Lewis, WA. The copy of the PEB proceedings provided show the same information as summarized in paragraph 4 above. They also show the PEB president signed the proceedings; however, they are not signed by the PEBLO or the applicant, and they are not approved. b. Headquarters, U.S. Army Physical Disability Agency, Arlington, VA, Orders D057-17, dated 26 February 2013, that discharged the applicant, on 2 April 2013, UP AR 635-40, with a disability percentage of 20% and authorized disability severance pay. The additional instructions show, in pertinent part: * The disability resulted from a combat-related injury as defined in 26 USC 104: No * The disability was incurred in a combat zone or incurred during the performance of duty in combat-related operations as designated by the Secretary of Defense (10 USC 1212): Yes c. A sworn statement made by the applicant and witnessed by S__ W. S___, Supervisory Logistics Management Specialist, on 6 November 2013. The applicant described his duties as a mechanic and driver for the Commander's Personal Security Detail, 103rd Expeditionary Support Command, Joint Base Balad, Iraq, from August 2010 through April 2012 [sic]. His duties involved constant mounting and dismounting, and also climbing and crawling underneath MRAP vehicles. The combat missions included tactical operations "outside the wire" wearing body armor and he participated in 61 such combat missions. One such mission revealed the discovery of seven unexploded improvised explosive devices. During these missions he was routinely required to perform security and preventive maintenance checks and also service the vehicles. He states that the performance of his duties led to difficulties with his right knee. He sought medical treatment and was prescribed a knee brace and ibuprofen (Tylenol). He redeployed to Fort Riley, KS, and sought additional medical care for his injuries. This led to his PEB and separation based on disability. He added that his government-appointed attorney (Mr. Black) failed to obtain finalized copies of his PEB proceedings for him. He concluded by stating, "I do not disagree with the findings of the medical evaluation board." d. An unwitnessed sworn statement made by M__ A. M____, on 9 January 2014. He states the applicant is qualified and physically able to meet the requirements of the heavy mobile equipment repairer (HMER) position (WG-5803-08). e. Headquarters, 88th Regional Support Command (RSC), Fort McCoy, WI, memorandum, dated 3 April 2014, subject: Notice of Proposed Removal, that shows the HMER Supervisor notified the applicant he was proposing his removal from his position of HMER (Wage Grade-5803-08) and from the federal service for his failure to maintain a basic condition of employment (i.e., Selected Reserve membership). (1) The HMER supervisor noted that, pursuant to 10 USC 10216(d)(1), unless specifically exempted by law, each individual who is hired as a military technician (dual status) after 1 December 1995 shall be required as a condition of that employment to maintain membership in the Selected Reserve. He also noted that the Standard Form (SF) 50 (Notification of Personnel Action), issued to the applicant on 25 September 2011, as a career-conditional appointment into a Military Technician position included in the remarks portion, "As a condition of employment, you are required to maintain active Reserve membership in the Selected Reserve, meet both military and civilian position skill compatibility, and satisfy the military membership requirement of AR 140 -315 (Employment and Utilization of USAR Military Technicians)." (2) The applicant was also notified of the materials being relied on to support the reason for the proposed action, his rights, and the options available to him. The applicant acknowledged receipt of the notification on 3 April 2014. f. Office of the Chief, Army Reserve, Washington, DC, memorandum, dated 7 April 2014, subject: Retention of Military Technician (Dual Status) Due to a Combat-Related Disability, shows the Command Executive Officer announced that an Army Reserve military technician (dual status) separated from military service in the Army Reserve due to a combat-related disability may be retained in their civilian employment under conditions specified in 10 USC 10216. The attached enclosure provided instructions on the application process and shows, in pertinent part, "A PEB must have determined the Soldier as not fit for further service because of a combat-related injury or illness as documented on the PEB Proceedings (DA Form 199). The DA Form 199 must include one of the determinations listed in Enclosure 3, Part 5, DoD Instruction 1332.38, relating to a combat-related disability." g. Sworn Declaration of the Applicant, dated 17 April 2014. He states, "I, [applicant's name], have always believed the injuries I incurred in Iraq were combat-related. My appointed counsel failed to discuss with me the impact of failing to dispute my informal PEB findings. My appointed counsel failed to counsel me on my options to do so. My appointed counsel failed to counsel me about the designation of my injuries as non-combat related by the PEB, let alone the repercussions, for a DST [dual-status technician], of a finding by the PEB that my injures were not 'combat-related'." (1) The applicant refers to an AR 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation subsequent to his PEB and the investigating officer's (IO's) failure to ask him about matters related to his PEB findings and recommendations. However, he was asked whether he could continue to serve in the Selected Reserve. The applicant stated, "I agreed with the PEB that I could no longer serve in the U.S. Army." (2) The sworn declaration was provided in support of his response to the notice of proposed removal action. h. A letter from K__ A. E___, Esquire (applicant's attorney), to the Supervisory Maintenance Management Specialist, 88th RSC, Fort McCoy, WI, dated 17 April 2014, subject: Response to the Notice of Proposed Removal Action of [applicant]. Mr. E___ asserted the applicant should not be removed from his military DST position because he has a combat-related disability which was incurred during military service. He advised that the applicant is petitioning the Army Board for Correction of Military Records (ABCMR) to correct his PEB proceedings to properly reflect that the injury is a combat-related disability as defined under 10 USC 10216(b). (1) He provided a summary of the applicant's military service, including the performance of his duties in Iraq (August 2010 to April 2011) that led to his unfitting condition. He noted that the applicant received a career-conditional appointment to his current DST position on 25 September 2011. (2) He stated the PEB incorrectly and improperly determined that the applicant's GAD was not unfitting. The VA subsequently awarded him a service-connected disability rating of 30% for this condition. (3) He also stated the applicant's government-appointed attorney for the PEB failed to properly advise, counsel, and assist him in the process, particularly with respect to the finding that his injuries were not "combat-related" and the repercussions of that finding for a DST. (4) He further stated that the IO who conducted the AR 15-6 investigation into the applicant's PEB proceedings and his status as a DST failed to ask the applicant if he agreed with the disability percentage awarded him by the PEB or if he agreed that his condition was not "combat-related." Mr. E___ asserted, "Both the PEB and, it appears, the subsequent [AR] 15-6 investigation, erred, as a matter of law, in determining that [applicant's] injury was not combat-related." (5) Counsel cited 10 USC 10216 which adopts Congress's definition of a combat-related disability, as it is outlined in 10 USC 1413a(e). He provided an extract of 10 USC 1413a (CRSC) that states the Secretary concerned shall pay to each eligible combat-related disabled uniformed services retiree who elects benefits under this section a monthly amount for the combat-related disability of the retiree. (a) "Subsection (e), Combat-Related Disability. In this section, the term 'combat-related disability' means a disability that is compensable under the laws administered by the Secretary of Veterans Affairs and that: (1) is attributable to an injury for which the member was awarded the Purple Heart; or (2) was incurred (as determined under criteria prescribed by the Secretary of Defense) (counsel's emphasis) – (A) as a direct result of armed conflict; (B) while engaged in hazardous service; (C) in the performance of duty under conditions simulating war; or (D) through an instrumentality of war (counsel's emphasis)." (b) He added, "Thus, as prescribed by statute, Congress left it to the Secretary of Defense to prescribe the conditions by which the determination of 'combat-related' was appropriate when the recipient was not awarded the Purple Heart for the same injury." (6) Counsel also cited the Secretary of Defense initial guidance in 2003 as revised on 15 April 2004: "The Military Department will determine whether a disability is combat-related under a, b, c, or d, above [10 USC 1413a(e)], using the definitions and criteria set forth in attachment 1-1 and this memorandum." He noted that Attachment 1-1 of the Secretary's guidance provides that a qualifying combat-related disability can occur as a result of an "Instrumentality of War." (7) Counsel concluded that the applicant's injuries sustained in Iraq from his work on MRAP vehicles clearly meet the definition of a combat-related disability caused by an "Instrumentality of War." He added that the applicant's injuries also meet the definition of as a "Direct Result of Conflict" and "While Engaged in Hazardous Service." i. CRSC, 10 USC 1413a, as amended, Revised Program Guidance, January 2004, that provides information, criteria, and application procedures pertaining to CRSC to retired members of a Uniformed Service. Included is Attachment 1-1 (Determination of Combat-Related) that provides the criteria, terms, definitions, and explanations that apply to making combat-related determinations in the CRSC program. j. VA medical records (119 pages) spanning the period April 2009 to January 2015 that show he was diagnosed with service-connected disabilities with a combined total rating of 60%, as follows: * knee condition (20%) * neurosis, GAD (30%) * scars (0%) * superficial scars (10%) * limited flexion of knee (0%) * sinusitis, pan sinusitis, chronic (10%) k. VA Rating Decision (pages 3 through 8), undated, that shows the applicant was granted service connection for the following conditions: * GAD (also diagnosed as adjustment disorder with anxiety; also claimed as insomnia and anxiety): 30%, assigned 7 May 2013 * persistent lateral meniscal tear of the right knee, chondromalacia of the right knee, osteoarthritis of the right knee (also claimed as right knee pain and knee injury): 20%, assigned 1 May 2012 * history of chronic sinusitis and recurrent acute sinusitis with near total obstruction of bilateral nares: 10%, assigned 7 May 2013 * painful scars: 10%, assigned 7 May 2013 * chronlc left knee strain (claimed as left knee pain, secondary to right knee; also claimed as knee injury): 0%, assigned 1 May 2012 * all right knee scars: 0%, assigned 7 May 2013 (1) Service connection for dry eye condition was denied. (2) A further review of the rating decision document failed to reveal evidence of a diagnosis of PTSD or treatment for an unrated condition of PTSD. 7. In the processing of this case, an advisory opinion was obtained from the Chief, Behavioral Health Division, Health Care Delivery, U.S. Army Medical Command G-3/5/7, Office of The Surgeon General (OTSG). a. The official stated the ABCMR requested a determination as to whether the applicant's discharge should be changed to retirement based on behavioral health (BH) issues. The advisory opinion was based on information provided by the ABCMR and records available in the DoD electronic medical record (AHLTA). b. The advisory official provided a summary of the applicant's military service and noted that the focus of his assertion was knee pain secondary to injuries sustained in Iraq. It was also noted he maintains that the PEB did not adequately review his medical records and symptomology which he believes would have supported at least a 30% disability finding. c. The official stated, from a BH perspective, the applicant was cleared for demobilization by BH in April 2011 when he returned from Iraq. In October 2011, he denied any BH issues other than anxiety related to his knee pain. In an Integrated DES BH pre-screen conducted on 15 November 2012, he denied symptoms consistent with post-traumatic stress disorder (PTSD) and was diagnosed with GAD. The evaluation concluded that there were no psychiatric conditions preventing him from meeting retention standards. Subsequent to his PEB in February 2013, another evaluation concluded that he had "no limitations to duties secondary to BH issues" and "does not warrant a BH addendum to his MEB." d. The advisory official concluded there is no evidence that the applicant met the criteria for a psychiatric condition that fell below retention standards and would have warranted referral to an MEB for possible medical retirement. 8. On 1 July 2016, the applicant was provided a copy of the OTSG advisory opinion to allow him the opportunity to submit comments or a rebuttal. 9. On 18 July 2016, counsel provided a response on behalf of the applicant. a. Counsel respectfully requests the advisory opinion from the Chief, BH Division, be disregarded and that the Board find in favor of the applicant by placing him on the temporary disability retired list and that his discharge with severance pay be upgraded. b. Counsel emphasizes, as previously outlined in their prior submissions, the existence of evidence that a psychiatric condition impacting the applicant existed prior to his discharge. He states the applicant's GAD is functionally analogous and medically equivalent to service-inhibiting disorders with psychotic features and mood disorders that justified a rating from the PEB that would have resulted in a medical retirement. In addition, the ineffective assistance of assigned counsel contributed to the applicant's faulty separation. Finally, the advisory opinion failed to address the sworn declaration of the applicant. c. Counsel states, had the applicant been afforded due process to challenge the initial PEB findings, he would have asked for reconsideration of the decision. It is highly likely the PEB would have found the severity of the applicant's GAD had further developed and fallen beneath retention standards. d. He states the advisory official inaccurately claims the only relevant record is an initial determination at post-deployment that claims the applicant was cleared for demobilization by BH in April 2011. However, the official's analysis failed to take into consideration the progression of the severity of his GAD and how the condition falls below retention standards by a plain reading of the guidance in AR 40-501 (Standards of Medical Fitness), paragraph 3-31 (Disorders with psychotic features) and paragraph 3-32 (Mood disorders). He adds, the applicant has been suffering from a psychiatric condition that has failed to adequately respond to treatment to restore him to full function for more than one year, as also specified in the regulatory guidance. e. Counsel states the advisory opinion purports to be a complete and holistic review of the record; however, it is clear it is only a cursory review of the available record. Therefore, the advisory opinion should be given no weight or credibility and should be entirely disregarded as irrelevant. f. The applicant's GAD symptoms appear to overlap with PTSD and he has reported a worsening of his symptoms. The VA granted him a disability rating of 30% for his GAD and has treated him for the unrated condition of PTSD. If the PEB examined the applicant for PTSD along with his confirmed GAD, he would have been found at least minimally qualified (30%) for medical retirement. g. Counsel emphasizes that the focus of the applicant's request is threefold: (1) a gross injustice occurred in the disposition of his PEB by assigned counsel, (2) his knee injury was sustained as a result of combat operations, and (3) the worsening condition of GAD was function limiting to the point of falling below retention standards. He offers that the VA has theorized that PTSD may actually be the proper diagnosis. REFERENCES: 1. Title 10, USC, section 10216 (Military Technicians (Dual Status) provides, uunless specifically exempted by law, each individual who is hired as a military technician (dual status) after 1 December 1995, shall be required as a condition of that employment to maintain membership, in pertinent part, in the unit of the Selected Reserve by which the individual is employed as a military technician; or a unit of the Selected Reserve that the individual is employed as a military technician to support. Subparagraph g (Retention of Military Technicians Who Lose Dual Status Due to Combat-Related Disability) provides, in pertinent part, if a military technician (dual status) loses such dual status as the result of a combat-related disability (as defined in section 1413a of this title), the person may be retained as a non-dual status technician so long as the combat-related disability does not prevent the person from performing the non-dual status functions or position; and the person, while a non-dual status technician, is not disqualified from performing the non-dual status functions or position because of performance, medical, or other reasons. 2. Title 26, USC, section 104 (Compensation for injuries or sickness), provides, in general, except in the case of amounts attributable to (and not in excess of) deductions allowed under section 213 (relating to medical, etc., expenses) for any prior taxable year, gross income does not include, in pertinent part, (a)(4) amounts received as a pension, annuity, or similar allowance for personal injuries or sickness resulting from active service in the armed forces of any country or in the Coast and Geodetic Survey or the Public Health Service, or as a disability annuity payable under the provisions of section 808 of the Foreign Service Act of 1980. a. It also 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 extrahazardous service * under conditions simulating war, or * which is caused by an instrumentality of war b. It further shows the only amounts taken into account under subsection (a) [bullet 4] shall be the amounts received by reason of a combat-related injury. 3. AR 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement. Chapter 3 provides the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for the individuals. These medical conditions and physical defects, individually or in combination, are those that significantly limit or interfere with the Soldier's performance of his or her duties; may compromise or aggravate the Soldier's health or well-being if they were to remain in the military service (this may involve dependence on certain medications, appliances, severe dietary restrictions, or frequent special treatments, or a requirement for frequent clinical monitoring); may compromise the health or well-being of other Soldiers; and/or may prejudice the best interests of the government if the individual were to remain in the military service. a. Paragraph 3-31 (Disorders with psychotic features) shows the causes for referral to an MEB are mental disorders not secondary to intoxication, infectious, toxic, or other organic causes, with gross impairment in reality testing, resulting in interference with duty or social adjustment. b. Paragraph 3-32 (Mood disorders) shows the cause for referral to an MEB are persistent or recurrence of symptoms: * sufficient to require extended or recurrent hospitalization * necessitating limitations of duty or duty in protected environment * resulting in interference with effective military performance 4. AR 635-40 sets forth policies, responsibilities, and procedures 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. Chapter 4 (Procedures), paragraph 4-19 (PEB decisions – common criteria), shows the voting members of a PEB make findings and recommendations in each case on the basis of the instructions set forth in this paragraph. a. Subparagraph j (Armed conflict – instrumentality of war) shows 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. These advantages concern preference eligible status within the Civil Service system (5 USC 3501). The specific circumstances are: (1) The disability resulted from injury or disease received in LOD 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 LOD during a period of war as defined by law. (The periods of war are defined in 38 USC 101 and 301.) b. The Glossary, Section II (Terms) defines relevant terms, as follows: * Armed conflict: Any activity in which American military personnel are engaged with a hostile or belligerent nation, faction, or force. The activity may include a war, expedition, occupation, battle, skirmish, raid, invasion, rebellion, insurrection, guerrilla action, or similar situation. * Combat-related injury: 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 extrahazardous service; under conditions simulating war; or which is caused by an instrumentality of war. * Instrumentality of war: 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. 5. Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a VA (or other government agency) disability rating does not establish error or injustice on the part of the Army. The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability. Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at different determinations based on the same impairments. Furthermore, unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. DISCUSSION: 1. The applicant and his counsel contend the applicant's records should be corrected to show a higher disability rating percentage and temporary/permanent disability retirement due to a combat-related physical disability condition that was a direct result of an instrumentality of war and is a combat injury as defined by law because his knee injury was sustained as a result of combat operations, the worsening condition of GAD was function limiting to the point of falling below retention standards, and a gross injustice occurred in the disposition of his PEB. 2. The PEB found the applicant medically unfit due to surgeries (four times) for persistent lateral meniscal tear of the right knee, chondromalacia of the right knee, and osteoarthritis of the right knee. He received a total combined disability rating of 20% and was separated with severance pay. a. The PEB determinations show the applicant was serving on active duty in support of Operation Iraqi Freedom and his conditions were incurred while serving in Iraq during the period 6 June 2010 to 7 April 2011. The evidence of record shows that he sustained his injuries while performing maintenance on MRAP vehicles. There is no medical evidence that shows his unfitting knee condition was aggravated by wearing a helmet and full battle armor in Iraq. b. The PEB considered the applicant's other conditions documented in his MEB case file and found no evidence that the condition(s) independently or in combination rendered him unfit for assigned duties. These conditions included his chronic left knee strain, history of chronic sinusitis and recurrent sinusitis with near total obstruction of bilateral nares, and GAD. c. The PEB found: * The disability disposition is not based on disease or injury incurred in the LOD in combat with an enemy of the United States and as a direct result of armed conflict or caused by an instrumentality of war and incurred in the LOD during a period of war (5 USC 8332, 3502, and 6303) * The disability did not result from a combat-related injury UP 26 USC 104 or 10 USC 10216 * The disability severance pay was awarded for disability incurred in a combat zone or incurred while performing combat-related operations as designated by the Secretary of Defense (10 USC 1212) 3. The applicant's orders directing his separation show the disability severance pay was awarded for a disability incurred in a combat zone or incurred while performing combat-related operations as designated by the Secretary of Defense. 4. In his statements, the applicant stated that his government-appointed attorney (Mr. Black) failed to provide him adequate counsel, advice, and guidance (particularly with regard to the issues of combat-related and his status as DST). a. Based on the last name he provides in his statements, it appears that the applicant may be referring to the PEBLO. b. On 25 February 2013, R___ A. Black, PEBLO, confirmed that the applicant was briefed on the findings and recommendations of the PEB, and on the results of the findings and recommendations. On that same date, the applicant acknowledged he had been advised by the PEBLO of the findings and recommendations of the informal PEB and that he had received a full explanation of the results of the findings and recommendations and legal rights pertaining thereto. He indicated that he concurred with the PEB proceedings, waived a formal hearing of his case, and he did not request reconsideration of his VA ratings. c. The evidence of record shows the applicant was satisfied with the results of the PEB proceedings (i.e., he concurred with the findings and he chose not to demand a formal hearing of his case or reconsideration of his disability ratings). Moreover, in sworn statements subsequent to the PEB, the applicant indicated that the informal PEB proceedings were not in error. 5. Regarding the contention that the unfitting condition (i.e., knee injury) was combat-related and a direct result of an instrumentality of war as defined by law. a. Armed conflict is defined as any activity in which American military personnel are engaged with a hostile or belligerent nation, faction, or force. There is no evidence of record that shows his conditions were incurred while engaged in combat with a hostile faction or force. b. A combat-related injury is defined as a personal injury or sickness that a Soldier incurs as a direct result of armed conflict. There is no evidence of record that shows his conditions were incurred as a direct result of armed conflict. c. An instrumentality of war may be a device designed primarily for military service and that subjects the individual to a hazard peculiar to military service. In this case, the applicant and counsel contend the instrumentality of war was the applicant's continued maintenance and operation of MRAP vehicles. However, 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. The evidence of record fails to fully satisfy the criteria. 6. The evidence of record shows the applicant's case was thoroughly reviewed and carefully considered throughout the integrated physical disability evaluation system process. The available evidence does not show the Army misapplied either the medical factors involved or the governing statutory/regulatory guidance concerning his disability processing. 7. The statutory guidance permits the VA to award compensation for disabilities which it determines were incurred in or aggravated by active military service, including those that are detected after discharge, and which impair the individual's industrial or social functioning. The fact that the VA determined the applicant's GAD is service connected is not evidence of an error in the PEB's determination that this condition was not unfitting. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150003786 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150003786 17 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2