IN THE CASE OF: BOARD DATE: 7 March 2017 DOCKET NUMBER: AR20150015286 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: 7 March 2017 DOCKET NUMBER: AR20150015286 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: 7 March 2017 DOCKET NUMBER: AR20150015286 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 reconsideration of the disability percentage he received at the time of his discharge and, in effect, designation of his unfitting condition as combat-related. He also requests correction of his record to show his severance pay was calculated based on the 6-year provision set forth in Department of Defense Instruction (DODI) 1332.38, paragraph E3.P5.1.2, and to show he qualifies for Combat-Related Special Compensation (CRSC). 2. The applicant states: a. He should have been retired by reason of physical disability due to the physical and mental disabilities that were not evaluated or considered at the time of his discharge. b. There is medical evidence of post-traumatic stress disorder (PTSD) related to combat, war, and the combat environment. c. There is evidence of existing medical conditions that were not evaluated during his medical review board along with his back injury, which include PTSD, depression, injuries to his knees, and injuries to his feet. d. The sole basis for his disability discharge was back pain, even though he had symptoms of PTSD and depression directly related to his deployment to Iraq from February 2004 to March 2005. e. He should have qualified for severance pay with the minimum 6-year provision set forth in DODI 1332.38, paragraph E3.P5.1.2, since his disabilities were incurred in the line of duty in a combat zone and during the performance of duty in combat related operations. f. He would like the Board to consider additional injuries and disabilities, all service-connected, incurred while he was serving in Iraq as a basis for a higher disability rating, to correct his record to show he is eligible for CRSC, and to review the amount of severance pay he received. 3. The applicant provides: * self-authored statements * United States Uniformed Services Identification Card, dated 9 July 2012 * eBenefits information * photographs of his back scars * Department of Veterans Affairs (VA) Letter, dated 7 September 2015 * DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 29 September 2006 * Headquarters, III Corps and Fort Hood, Orders 251-0112, dated 8 September 2006 * My HealtheVet Personal Information Report, dated 7 September 2015 * Army Commendation Medal Certificate, dated 14 January 2005 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. On 1 July 2002, the applicant enlisted in the Regular Army for 4 years. He completed training as a signal support systems specialist. 3. The applicant's Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB) Proceedings are not available. The available records show that on 8 September 2006, Headquarters III Corps and fort Hood Orders 251-0112 were published reassigning him to the U.S. Army transition point for transition processing. The orders stated he was to report to the transition point on 29 September 2006. The orders also state that he had a 0 percent (%) disability rating and that he was authorized disability severance pay in pay grade E-5 based on 4 years, 2 months, and 29 days of services. 4. His DD Form 214 shows he was discharged on 29 September 2006, under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24B(3), due to disability and that he received severance pay in the amount of $16,996.80. 5. In an Application for Review by the Physical Disability Board of Review (PDBR) of the Rating Awarded Accompanying a Medical Separation from the Armed Forces of the United States, the applicant requested that his unfitting condition of chronic low back pain be reevaluated. The PDBR convened on 15 November 2013 to review his disability and, after careful review of his application and medical separation case file, recommended modification of his previously assigned disability rating to reflect a combined rating of 20% rather than 0%. 6. On 6 March 2014, the Deputy Assistant Secretary (Army Review Boards) accepted the PDBR recommendation and directed that the applicant's records be corrected accordingly. 7. On 28 May 2014, Headquarters, III Corps and Fort Hood, Orders 148-0108 amended Orders 251-0112 to read "Percentage of Disability 20%." 8. The applicant provides VA records showing that he has been awarded a combined 100% service-connected disability rating based on the following service-connected disabilities: * myofascial pain syndrome (MPS), neck – 20% * PTSD – 70% * degenerative joint disease, right knee – 10% * MPS, low back – 20% * radiculopathy, left lower extremity – 40% * radiculopathy, right lower extremity – 40% * pes planus, bilateral with right plantar fasciitis – 50% * degenerative joint disease, left knee – 10% 9. The applicant provides the following self-authored statement: I would like to issue a statement to the review board. I am submitting an application for review based on new information issued on discharged upgrades and PTSD, and sufficient evidence at the time of my medical honorable discharge. I served in Iraq during Operation Iraqi Freedom from February 2004 until March 2005 as an enlisted Soldier with Alpha Troop, 1st Squadron, 4th Cavalry Regiment, with the 1st Infantry Division (Schweinfurt, Germany). As the only communications specialist in the troop, I maintained all the troop's communication systems, immobile and mobile. My back injury was the direct result [of] combat related activities, missions, constantly wearing weighted body armor, and vehicle maintenance (jumping on and off armored vehicles/Bradleys/tanks). While working on a vehicle communications system, I suffered a laceration to my lower back that is still visible. The onset of post-traumatic stress began midway thorugh deployment when I pulled a deceased Soldier, J_____ C_________, from the driver seat of a tank after being hit by an [improvised explosive device (IED)] on 27 November 2004, a day I'll never forget and constantly relive through flashbacks, unwanted memories, and nightmares. While in theater, I was shot at multipole times and engaged in combat, in which I earned the Combat Action Badge. I went on several missions including Fallujah, Operation Phantom Fury. After redeployment, I had a semi-stressful adjustment because of distance from family and recurring nightmare/lack of sleep. My next duty station was with the 89th Military Police Brigade, Fort Hood, Texas. While at the unit, I was immediately placed on a temporary Army profile for my back and feet. I rarely participated in field exercises (due to physical profile restrictions on wearing combat gear and constant back spasms) and usually was pulled to help support staff with meal preparation. I also had physical medicine treatments while at Fort Hood until my discharge. I was placed on rear detachment after my temporary profile was upgraded to permanent and signed by the colonel, the commanding officer at the medical facility, weeks prior to the unit's deployment in August 2006. My medical board exams were focused on my back injury and did not include other physical disabilities sustained and mental health/awareness. I was discharged honorably from service with severance [pay]. Based on the physical and mental disabilities that shortened my military career, I would like the Board to reconsider the following: (1) The injuries and disabilities (physical and mental) [incurred] while serving in Iraq, and which are service-connected, should have been a factor at [the medical board] during separation/discharge and should be rated higher with that evidence. (2) Qualify for Combat-Related Special Compensation (CRSC). (3) Severance pay review. 10. During the processing of this case, an advisory opinion was obtained from the U.S. Army Physical Disability Agency (USAPDA) Medical Advisor who states: a. The applicant's MEB was completed on 31 July 2006 with only one listed condition – lower back pain. The back pain did begin while deployed and was opined to have begun because of the constant wear of a heavy load of military gear while in a deployed status. The applicant concurred with the MEB findings on 8 August 2006. b. A PEB found the applicant unfit for his back pain and recommended separation with severance pay. The PEB found the condition was not incurred as a direct result of armed combat. The applicant concurred with the PEB's findings and waived his right to a formal hearing. c. The PEB found the applicant unfit for the only condition identified by the MEB as affecting his ability to perform his military duties in 2006. The PEB observed no other listed conditions and the applicant's command did not identify any other conditions that were affecting his ability to perform his duties in 2006. Only conditions listed on an MEB and found unfitting by a PEB can be compensated in accordance with the military disability system. Subsequent VA ratings for other conditions are not evidence of MEB or PEB error or injustice. d. The fact that the applicant's back may have been injured due to the wearing of heavy equipment in a deployed environment is not evidence that meets the required criteria of an injury incurred as a direct result of armed combat. Designation of combat zone injuries that authorize additional compensation was not implemented until 2008 and is not applicable retroactively. e. The applicant has not provided any evidence of error or injustice in the MEB or PEB findings. The PEB findings were supported by a preponderance of the evidence, were not arbitrary or capricious, and were not in violation of any statute, directive, regulation or policy. 11. The USAPDA Medical Advisor recommended that no change be made to the applicant's military records. 12. The applicant was provided a copy of the advisory opinion for his information and/or rebuttal. He did not respond. REFERENCES: 1. Title 38, United States 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 higher VA rating does not establish error or injustice in the Army rating. An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service. 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. The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career, while the VA may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability. 2. Army Regulation 635-40 states, in pertinent part, that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. Soldiers with unfitting conditions rated at less than 30% are 3. Title 10, U.S. Code, section 1212 (10 USC 1212), effective in 2008 and not retroactive, provides that disability severance pay received by a member for a disability incurred in the line of duty in a combat zone or incurred during performance of duty in combat-related operations as designated by the Secretary of Defense will not be deducted from compensation for the same disability awarded by the Department of Veterans Affairs. 4. Title 10 USC 1212 also provides that, in the case of a member separated from the armed forces for a disability incurred in line of duty in a combat zone (as designated by the Secretary of Defense for purposes of this subsection) or incurred during the performance of duty in combat-related operations as designated by the Secretary of Defense, the minimum years of service used to calculate severance pay shall be 6 years. In the case of all other members, the minimum years of service used shall be 3 years. 5. DODI 1332.18, which replaced DODI 1332.38 in 2014, states disability evaluation will include the PEB's determination of whether a Service member is eligible for certain Federal employment benefits and whether the Service member’s disability compensation is excluded from Federal gross income. The PEB makes these determinations in part based on criteria for determining if a disabling condition is combat-related. The standard for a combat-related disability covers injuries and diseases attributable to the special dangers associated with armed conflict or the preparation or training for armed conflict. A disability is considered combat-related if it makes the Service member unfit or contributes to unfitness and the preponderance of evidence shows it was incurred under any of the following circumstances. a. As a direct result of armed conflict – The fact that a Service member may have incurred a disability during a period of war, in an area of armed conflict, or while participating in combat operations is not sufficient to support this finding. There must be a definite causal relationship between the armed conflict and the resulting unfitting disability. b. While engaged in hazardous service – Such service includes, but is not limited to, aerial flight duty, parachute duty, demolition duty, experimental stress duty, and diving duty. c. Under conditions simulating war – In general, this covers disabilities resulting from military training, such as war games, practice alerts, tactical exercises, airborne operations, and leadership reaction courses; grenade and live fire weapons practice; bayonet training; hand-to-hand combat training; rappelling; and negotiation of combat confidence and obstacle courses. It does not include physical training activities, such as calisthenics and jogging or formation running and supervised sports. d. Caused by an instrumentality of war. Occurrence during a period of war is not a requirement to qualify. If the disability was incurred during any period of service as a result of wounds caused by a military weapon, accidents involving a military combat vehicle, injury or sickness caused by fumes, gases, or explosion of military ordnance, vehicles, or material, the criteria are met. However, there must be a direct causal relationship between the instrumentality of war and the disability. For example, an injury resulting from a Service member falling on the deck of a ship while participating in a sports activity would not normally be considered an injury caused by an instrumentality of war (the ship) since the sports activity and not the ship caused the fall. The exception occurs if the operation of the ship caused the fall. 6. CRSC is a form of concurrent receipt which is paid monthly. It restores military retired pay that is offset when a military retiree accepts compensation from the VA for a disability or condition that can be attributed to a combat-related event as defined by DoD program guidance. This allows eligible Retirees to concurrently receive an amount equal to or less than their length of service retirement pay and their VA disability compensation, if the injury is combat-related. Retirees must apply for CRSC. The instructions for applying are provided on the U.S. Army Human Resources Command (HRC) website at https://www.hrc.army.mil/content/Apply%20for%20CRSC. DISCUSSION: 1. The available evidence shows the applicant was initially awarded a 0 percent disability rating by the Army. He concurred with the MEB and the PEB findings and waived his right to a formal hearing. The PDBR convened on 15 November 2013 to review his disability and recommended modification of his previously assigned disability rating to reflect a rating of 20% rather than 0%. The PDBR was limited to reviewing the conditions identified by his MEB and PEB. The PDBR is not empowered to consider conditions not previously identified. 2. A review by the USAPDA Medical Advisor found the MEB identified one condition as not meeting retention standards and found no evidence of conditions other than the applicant's back pain that were affecting the applicant's duty performance at the time. She also found no basis upon which his back pain could be categorized as combat-related, as it appears to have begun because of the constant wear of a heavy load of military gear while in a deployed status. This would not meet the criteria established by DOD for a favorable "combat-related" determination. 3. An award of a higher VA rating does not establish error or injustice in the Army rating. An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service. The VA awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s civilian employability. 4. The applicant was not retired. Therefore, he is not eligible for CRSC. If there is a correction to his records that results in him being placed in a retired status, he may submit a CRSC application to HRC. 5. He asks that his severance pay be calculated using the more favorable formula (i.e., using a minimum of 6 years of service) established in law in 2008. The provision of law he references was not in effect when he was separated for disability and is not retroactive. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150015286 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015286 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2