BOARD DATE: 2 June 2016 DOCKET NUMBER: AR20150010167 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 June 2016 DOCKET NUMBER: AR20150010167 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 June 2016 DOCKET NUMBER: AR20150010167 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, in effect, correction of his: a. DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 19 May 2014, to show his disability resulted from a combat-related injury. b. retirement orders, dated 26 August 2014, to show his disability was caused as a direct result of armed conflict or by an instrumentality of war incurred in the line of duty (LOD) during a period of war as defined by law. 2. The applicant states, in effect: a. On 10 December 2003 while riding in a Hummer in a combat zone in Iraq, the vehicle hit a big hole in the road because the fog affected the visibility and he injured his back. b. His DA Form 199 shows he is unfit for duty due to lumbar intervertebral disc syndrome, radiculopathy right lower extremity, and left knee degenerative joint disease, with a 60-percent disability rating. The PEB states his condition was not combat-related. He thinks the PEB decision is wrong and he has the right to receive Combat-Related Special Compensation benefits. c. The large hole in the road was made with the intent to cause accidents to military vehicles. 3. The applicant provides: * letter from the U.S. Army Physical Disability Agency (USAPDA), dated 24 August 2014 * revocation orders, dated 12 June 2014 * retirement orders, dated 26 August 2014 * discharge orders, dated 7 September 2005 and 26 September 2014 * DA Form 199 * Army Board for Correction of Military Records (ABCMR) proceedings, dated 31 May 2012 * National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) * NGB Form 22A (Correction to NGB Form 22) * DA Form 2173 (Statement of Medical Examination and Duty Status) * Department of Veterans Affairs documentation * service medical records * DD Form 214 (Certificate of Release or Discharge from Active Duty) * notification of eligibility for retired pay at age 60 * Army National Guard (ARNG) Retirement Points History Statement * memorandum, dated 28 July 2005 * DA Form 7349 (Initial Medical Review – Annual Medical Certificate) * DA Form 3349 (Physical Profile) * retiree account statement CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the ARNG on 18 July 1985. He served in Kuwait/Iraq from 21 January 2003 to 5 June 2004. 2. A DA Form 2173, dated 4 January 2004, shows he injured his back on 10 December 2003 in Iraq when the vehicle he was riding in hit a big hole in the road because fog affected the visibility. 3. He was promoted to master sergeant effective 6 June 2004. 4. Puerto Rico ARNG Element Orders 173-19, dated 7 September 2005, honorably discharged him from the ARNG for being medically unfit for retention. 5. In September 2011, he petitioned the ABCMR for referral to the Army Physical Disability Evaluation System and medical retirement. In May 2012, the ABCMR granted partial relief by referring him for medical processing through the Army Physical Disability Evaluation System. 6. On 3 May 2013, a medical evaluation board (MEB) diagnosed him with: * post-traumatic stress disorder * fibromyalgia * right L5 radiculopathy * lumbar intervertebral disc disease * bilateral knee degenerative joint disease * degenerative arthritis * cervical intervertebral disc disease 7. The MEB found the following conditions not disqualifying: * bilateral shoulder pain * bilateral hip strain * eschar, right ear * obstructive sleep apnea * erectile dysfunction * high frequency sensorineural hearing loss * subjective tinnitus 8. The MEB recommended his referral to a PEB. 9. On 19 May 2014, an informal PEB found him physically unfit due to: * lumbar intervertebral disc syndrome * radiculopathy right lower extremity * left knee degenerative joint disease * right knee degenerative joint disease 10. The PEB found the following conditions not unfitting: * post-traumatic stress disorder * fibromyalgia * degenerative arthritis right and left wrists * degenerative arthritis right and left ankles * degenerative arthritis right and left hands * degenerative arthritis right and left feet * cervical intervertebral disc disease 11. The PEB found the applicant fit for duty for the following conditions: * bilateral shoulder pain * bilateral hip strain * eschar, right ear * obstructive sleep apnea * erectile dysfunction * high frequency sensorineural hearing loss * subjective tinnitus 12. The disability description section of his DA Form 199 states his lumbar intervertebral disc syndrome began in 2004 in Iraq when he injured his back while riding in a military vehicle that hit a hole. 13. His DA Form 199 also states: a. 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. b. The disability did not result from a combat-related injury under the provisions of Title 26, U.S. Code, section 104, or Title 10, U.S. Code, section 10216. 14. The PEB recommended a 60-percent disability rating and permanent retirement. 15. On 27 May 2014, he concurred with the PEB findings and waived a formal hearing. 16. On an unknown date, the USAPDA approved the PEB's findings. 17. Puerto Rico ARNG Element Orders 163-501, dated 12 June 2014, revoked Puerto Rico ARNG Element Orders 173-19, dated 7 September 2005. 18. USAPDA Order D238-17, dated 26 August 2014, shows he was permanently retired effective 22 July 2005 with a 60-percent disability rating. This order states: a. "Disability is based on injury or disease received in 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." b. "Disability resulted from a combat related injury as defined in 26 USC 104 [Title 26, U.S. Code, section 104]: No." 19. An advisory opinion was obtained from the Legal Advisor, USAPDA. The advisory official states: a. The applicant's back was injured when the military vehicle he was riding in accidently ran into a hole in the road while traveling from Iraq to Kuwait. The driver did not see the hole in the road due to foggy conditions. There was not enemy attack or evidence to indicate that the hole was an enemy trap or enemy-made obstruction. There is nothing to suggest that the hole was any different from any other "pothole" that one could encounter anywhere in the United States. There is no evidence in the case file to support that the applicant's back injury was in any way caused by the unique use or design of the military vehicle. b. To be awarded a combat-related injury designation, the injury would have to be the direct result of armed combat or directly caused by an instrumentality of war. There must be a direct causal relationship between the use of the instrumentality of war and the disability. The applicant appears to claim that since he was in a military vehicle any injury incurred while riding in the vehicle must be considered an instrumentality of war injury. This assertion is incorrect. There must be some unique use or design of the device that caused the injury to occur that would not have occurred under similar circumstances in civilian pursuits. This appears to be your typical "whiplash" injury which, and does, occur in many accidents in almost all types of vehicles, military or civilian, in any location. c. The applicant concurred with the PEB's 19 May 2014 findings which determined his unfitting conditions were not the direct result of armed combat or an instrumentality of war. The applicant has not presented any new evidence to support a change in the PEB'S findings. The PEB's findings were supported by a preponderance of the evidence; were not arbitrary or capricious; and were not in violation of any statute, directive, or regulation. d. The advisory official recommends no changes to the applicant's military records. 20. The advisory opinion was furnished to the applicant for comment. He did not respond. 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. Title 10, U.S. Code, section 10216, pertains to military technicians (dual status). DISCUSSION: 1. The applicant contends his unfitting back condition was caused by combat or an instrumentality of war. 2. The evidence of record shows he injured his back when the military vehicle he was riding in accidently ran into a hole in the road because fog affected the visibility. 3. The PEB determined his disabilities were 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 27 May 2014. 4. There was no enemy attack or evidence to indicate that the hole was an enemy trap or enemy-made obstruction. 5. There is no evidence the applicant's back injury was caused by the unique use or design of the military vehicle. 6. There is no evidence showing this accident was combat-related or under conditions simulating war. 7. There is no evidence in the available records and the applicant has not provided sufficient evidence showing his disabilities were 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) AR20150010167 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150010167 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2