SAMR-RB 7 December 2017 MEMORANDUM FOR Case Management Division, US Army Review Boards Agency, 251 18th Street South, Suite 385, Arlington, VA 22202-3531 SUBJECT: Army Board for Correction of Military Records Record of Proceedings for, AR20160002643 1. Reference the attached Army Board for Correction of Military Records Record of Proceedings, dated 21 November 2017, in which the Board members unanimously recommended partial relief of the applicant's request. 2. I have reviewed the findings, conclusions, and Board member recommendations. I find there is not sufficient evidence to grant relief. Therefore, under the authority of Title 10, United States Code, section 1552, I have determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. BY ORDER OF THE SECRETARY OF THE ARMY: Encl Deputy Assistant Secretary of the Army (Review Boards) BOARD DATE: 21 November 2017 DOCKET NUMBER: AR20160002643 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ____x____ ___x_____ ___x_____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 21 November 2017 DOCKET NUMBER: AR20160002643 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DA Form 199 to show his disability severance pay was awarded for a disability incurred while performing combat-related operations. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to any relief in excess of that described above. ______________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: 21 November 2017 DOCKET NUMBER: AR20160002643 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 Section V, paragraph 4 of his DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings) to show his disability 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. 2. The applicant states his injury was caused by a Stryker (military vehicle) rollover (instrumentality of war) during combat-related operations in Grafenwoer, Germany in preparation for deployment to Afghanistan. Section III (Medical conditions determined to be unfitting) of his DA Form 99 states his pain began in 2010 during a Stryker rollover while stationed in Germany. 3. The applicant provides: * DA Form 199, dated 15 September 2013 * 10 packets of medical records containing 1001 pages with a table of contents CONSIDERATION OF EVIDENCE: 1. On 31 December 2008, the applicant enlisted in the Regular Army. He completed basic combat and advanced individual training and was awarded military occupation specialty (MOS) 11B (Infantryman). 2. On 1 February 2010, the applicant reported to the U.S. Army Health Clinic, Vilsek, Obarpf, Germany with pain in his lumbar spine without neurological deficits after an accident with a military vehicle. Details of the accident were not indicated in the report. He was diagnosed with contusion of his lumbar spine, ruled out fracture. 3. He served in Afghanistan from 21 June 2010 through 19 May 2011. 4. On 13 December 2011, the applicant was medically seen with his chief complaint of lower back pain. It was noted the applicant was on active duty and the visit was not deployment related. The source of the patient information was the applicant. He complained of chronic acute onset midline lumbosacral pain since January 2010. The pain began when the vehicle in which he was a passenger flipped off of a bridge. He was banged around inside the vehicle and had several items of equipment and people land on him. There was no indication the accident occurred while performing combat-related operations. 5. On 17 December 2011, the Troop Medical Clinic requested a consult for the applicant for his complaints of lower back pain for 21 months following a Stryker rollover. 6. On 30 July 2012, a memorandum for record (MFR) from the U.S. Army Medical Department Activity, Fort Stewart, GA, indicated the applicant could remain on active duty until he had reached a medical retention determination point, was found fit for duty, had completed processing through the Physical Disability Evaluation System, or 26 August 2013, whichever occurred first. 7. On 15 July 2013, a second MFR from the U.S. Army Medical Department Activity, Fort Stewart, GA, indicated the applicant could remain on active duty until he had reached medical retention determination point, was found fit for duty, had completed processing through the Physical Disability Evaluation System, or 26 August 2014, whichever occurred first. 8. On 15 September 2013, an informal PEB found the applicant physically unfit and recommended a rating of 10 percent and that his disposition be separation with severance pay. a. He was found unfit for chronic lumbar strain. The onset of pain began in 2010 during a Stryker rollover while stationed in Germany. Despite multiple treatment modalities his impairment persisted. This condition is unfitting because the symptoms of stiffness, spasms, decreased range of motion, and numbness prevent the Soldier from performing the physical requirements of his MOS 11B. His commander does not recommend retention. In addition, he is unable to perform nine of the ten functional activities required of all Soldiers, to include living in an austere environment. The informal PEB determined that continued exposure to the rigors of military service would create an unreasonable risk to the applicant's health. b. The informal PEB considered primary insomnia, intermittent bilateral tinnitus, and post traumatic brain injury migraine headaches were not associated with his profile limitations and did not impact the applicant's ability to perform any one of the ten functional activities. The medical evaluation board indicated these conditions met medical retention standards. c. In Section V (Administrative Determinations) the PEB made the following findings: (1) The disability disposition was not based on disease or injury incurred in the line of duty 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 line of duty during a period of war. (This determination is made for all compensable cases but pertains to potential benefits for disability retirees employed under Federal Civil Service.) (2) The disability did 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. (3) The disability severance pay was not awarded for a disability incurred in a combat zone or incurred while performing combat-related operations as designated by the Secretary of Defense (See Title 10, U.S. Code, section 1212). 9. On 30 September 2013, the applicant acknowledged he was advised of the findings and recommendations of the informal PEB and he received a full explanation of the results of the findings and recommendations and legal rights pertaining thereto. The applicant concurred with the finding and waived a formal hearing of his case. He indicated he was requesting the Department of Veterans Affairs (VA) reconsider his disability ratings. 10. On 25 February 2014, the applicant was discharged by reason of disability, with severance pay, non-combat (enhanced). He completed 5 years, 1 month, and 25 days of active service. 11. On 4 May 2017, the Case Management Division (CMD), Army Review Boards Agency (ARBA) requested the applicant provide a copy of his Army military medical records and any other records that supported his stated issue. The applicant provided 10 packets of medical records containing 1001 pages with a table of contents. 12. On 9 June 2017, CMD, ARBA requested a medical advisory opinion to determine if the medical condition(s) met or did not meet medical retention standards and whether his medical condition(s) were duly considered during his medical separation processing. 13. On 27 June 2017, the ARBA Senior Medical Advisor provided a medical advisory opinion. a. He reviewed the applicant's application, medical records, electronic medical records and his personnel record. He also restated the applicant’s request to change his DA Form 199 to show his disability did occur in a combat zone or incurred while performing combat related operations. b. Within the applicant's medical records is an inpatient summary (translated to English) from a hospitalization in a German hospital from 1 through 3 February 2010. The applicant’s diagnosis was contusion of the lumbar spine with a fracture ruled out. He was prescribed medication and therapy. c. The applicant's DA Form 3349 (Physical Profile), dated 28 March 2012, shows he received a permanent three rating for his lower extremities based on chronic low back pain for 9 months. He was referred to a medical evaluation board. His physical profile was updated on 27 July 2012 with the same permanent rating. d. The applicant's medical evaluation board narrative summary dated 29 November 2012 shows he had chronic lumbar strain with possible lumbar spine instability. This condition caused a significant impact on his ability to perform his military and MOS duties. He did not agree with the findings. Upon review of his appeal, an Army official stated his concerns were for the VA (presumably he disagreed with the VA Rating Decision). e. The DA Form 3947 (Medical Evaluation Board Proceedings) identified his unfitting condition as chronic lumbar strain with possible lumbar spine instability in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3. Four other medical conditions were found to meet medical retention standards. f. On 15 September 2013 an informal PEB convened to administratively review the applicant's case file. A DA Form 199 was completed and the only diagnosis found to not meet medical retention standards was chronic lumbar strain. This diagnosis was rated 10 percent. The disability disposition was not based on a disease or injury incurred in the line of duty in combat with an enemy of the United States or as a direct result of armed conflict or caused by an instrumentality of war. The applicant waived a formal hearing but did request a review by the VA to consider his disability ratings. (The applicant was processed through the Integrated Disability Evaluation System.) g. A memorandum, dated 30 November 2013, from the VA Decision Review Officer responded to the applicant's request for a reconsideration of his disability rating. The reviewing official determined the 10 percent evaluation proposed for the applicant's chronic lumbar strain was confirmed and continued. There was no objective evidence of examination findings showing a worsening of the applicant's condition that would warrant a higher evaluation. h. The applicant's medical conditions were duly considered during medical separation processing. i. A review of the available documentation found no evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case. j. A review of the available medical documentation was consistent with the previous PEB determination regarding combat-related operations. His disability was not incurred in a combat zone or incurred while performing combat-related operations as designated by the Secretary of Defense. k. A review of the VA Joint Legacy Reviewer (electronic VA records) shows the applicant is considered service connected disabled for post-traumatic stress disorder at 50 percent, migraine headaches at 30 percent, lumbosacral or cervical strain rated at 20 percent, paralysis of musculospinal nerve at 20 percent, and tinnitus at 10 percent. His total service connected VA disability rating is 80 percent. 14. On 29 June 2017, the applicant was provided a copy of the above advisory to give him the opportunity to give him the opportunity to provide a rebuttal/additional comments. He did not provide any additional rebuttal or comments. REFERENCES: 1. Appendix 5 (Administrative Determinations) to enclosure 3 of Department of Defense Instruction (DODI) 1332.18 (Disability Evaluation System) (DES) defines armed conflict and instrumentality of war. a. Incurred in Combat with an Enemy of the United States. The disease or injury was incurred in the line of duty (LOD) in combat with an enemy of the United States. b. Armed Conflict. The disease or injury was incurred in the LOD 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. c. 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. d. 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. e. 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. 2. Title 10, U.S. Code, section 1212 states: a. The minimum years of service of a member for purposes of computation of disability pay shall be as follows: (1) Six years 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. (2) Three years in the case of any other member. b. The amount of disability severance pay received under this section shall be deducted from any compensation for the same disability to which the former member of the armed forces or his dependents become entitled under any law administered by the Department of Veterans Affairs. c. No deduction may be made under the above paragraph in the case of disability severance pay received by a member for a disability incurred in line of duty in a combat zone or incurred during performance of duty in combat-related operations as designated by the Secretary of Defense. 3. Title 26, U.S. Code, section 104 (Compensation for injuries or sickness) states gross income (for income tax purposes) does not include 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. 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 which is caused by an instrumentality of war DISCUSSION: 1. The applicant contends Section V of his DA Form 199, paragraph 4 should read "The disability severance pay was awarded for disability incurred in a combat zone or incurred while performing combat-related operation as designated by the Secretary of Defense." 2. The PEB determined the applicant's medical condition was not incurred in a combat zone or while performing combat-related operations as designated by the Secretary of Defense. 3. The applicant's medical condition was found to have been caused by an instrumentality of war, the Stryker vehicle, within the meaning of Title 26, U.S. Code, section 104. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002643 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002643 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2