BOARD DATE: 17 August 2017 DOCKET NUMBER: AR20160000150 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: 17 August 2017 DOCKET NUMBER: AR20160000150 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: 17 August 2017 DOCKET NUMBER: AR20160000150 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, dated 21 November 2011, 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: a. His separation orders state "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 incurred in the line of duty during a period of war as defined by law: No." He believes this should be "Yes." b. He applied for Combat-Related Special Compensation (CRSC) after being placed on the Permanent Disability Retired List (PDRL) and was approved based upon the medical issues being received in the LOD as a direct result of armed conflict or caused by an instrumentality of war as defined by law. 3. The applicant provides: * retirement orders, dated 21 November 2011 * CRSC letter, dated 9 March 2015 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 Regular Army on 2 October 2007 and trained as a cannon crewmember. 3. His medical evaluation board proceedings are not available for review. 4. On 11 November 2014, a physical evaluation board (PEB) found him physically unfit due to right brachial plexus palsy and cervical degenerative disc disease. 5. The disability description section of his DA Form 199 (PEB Proceedings) states right brachial plexus palsy is not a battle injury and did not occur in a combat zone. Onset traced to September 2004 during a road march with full combat gear, with pain and weakness of the right upper extremity. 6. His DA Form 199 also states: a. The Soldier's retirement is not based on disability from injury or disease received in the LOD as a direct result of armed conflict or by an instrumentality of war and incurring in the LOD during a period of war as defined by law. b. The disability did not result from a combat-related injury as defined in Title 26, U.S. Code, section 104. 7. The PEB recommended a 50-percent disability rating and permanent disability retirement. On 16 November 2011, he concurred with the PEB findings and waived a formal hearing. 8. On 18 November 2011, the U.S. Army Physical Disability Agency approved the PEB findings. 9. Headquarters, U.S. Army Garrison, Fort Carson, Orders 325-0014, dated 21 November 2011, permanently retired him effective 26 December 2011 with a 50-percent disability rating. Paragraph 2 of these orders state: a. "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 incurred in the line of duty 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." 10. On 26 December 2011, he retired by reason of permanent disability. 11. He provided a letter from the U.S. Army Human Resources Command CRSC Branch, dated 9 March 2015, showing he was awarded combat-related disability for right supraventricular brachial plexus palsy with neuralgia – 40 percent effective 12 January. The justification/comments section states "Documentation supports evidence of injury while simulating war." 12. An advisory opinion was obtained from the Medical Advisor, U.S. Army Physical Disability Agency. The advisory official states: a. The available record indicates the applicant sustained this injury (right supraventricular brachial plexus palsy with neuralgia) while performing a road march with full combat gear and body armor. There is no evidence to support that this condition was sustained under conditions simulating war (e.g., during a war games; tactical exercises or grenade and live fire weapons practice). b. Department of Defense Instruction (DODI) 1332.38 (Physical Disability Evaluation), paragraph E3.P5.2.2.3, the provision in effect at the time the applicant's case was processed, precisely mirrors the current DODI 1332.38. c. There is no requisite evidence to support that the applicant's condition was incurred under conditions simulating war. 13. 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. The U.S. Army Human Resources Command Adjutant General Directorate defines an "instrumentality of war" as a vehicle, vessel, or device (e.g., combat vehicles, weapons, Agent Orange) designated primarily for military service and intended for use in such service at the time of the occurrence or injury. It may include such instrumentalities not designated primarily for military service if use of or occurrence involving such instrumentality subjects the individual to a hazard peculiar to military service. Such use or occurrence differs from the use or occurrence under similar circumstances in civilian pursuits. 3. DODI 1332.38, paragraph E3.P5.2.2 (Combat-Related), covers those injuries and diseases attributable to the special dangers associated with armed conflict or the preparation or training for armed conflict. A physical disability shall be considered combat related if it makes the member unfit or contributes to unfitness and was incurred under any of the following circumstances: * as a direct result of armed conflict * while engaged in hazardous service * under conditions simulating war * caused by an instrumentality of war 4. DODI 1332.38, paragraph E3.P5.2.2.3 (Under Conditions Simulating War), in general, covers disabilities resulting from military training, such as war games, practice alerts, tactical exercises, airborne operations, 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. DISCUSSION: 1. The applicant contends his right brachial plexus palsy injury was caused under conditions simulating war. 2. The evidence of record shows he sustained this injury while performing a road march with full combat gear and body armor. 3. The PEB determined his disability was 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 16 November 2011. 4. The advisory official in this case found there was no requisite evidence to support that the applicant's condition was incurred under conditions simulating 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) AR20160000150 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000150 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2