ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 24 May 2019 DOCKET NUMBER: AR20160013872 APPLICANT REQUESTS: correction of his DD Form 199 (Informal Physical Evaluation Board (PEB) Proceedings) to show his post-traumatic stress disorder (PTSD) is combat related. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: • On-line application • Medical documents • 2 DA Forms 199 (Informal Physical Evaluation Board (PEB) Proceedings FACTS: 1. The applicant states: a. He was assigned to a combat zone in Afghanistan working in mortuary affairs. His PTSD was caused by his job. He was constantly attacked by the enemy with mortars and several situation car bombs exploded at the entrance of the base. His duties as a mortuary affairs specialist was related to deceased personnel, including recovery, collection, evacuation and establishment of tentative identification. He assisted in the preparation, preservation, and shipment of remains. b. He experienced a number of issues pertaining to PTSD to include flashbacks, panic attacks, nightmares, insomnia, and upsetting dreams about the traumatic events he experienced. He believes the lawyer assigned to his case during his medical evaluation board (MEB) committed a huge error by indicating his PTSD was not classified as combat related. He specifically told the lawyer that he disagreed about his PTSD not being classified as combat related and would like to file an appeal. He was told he had no option but to sign the DA Form 199. He believes he was misinformed by the lawyer and given incorrect information. His military records should be updated to show his PTSD as combat related. 2. On 22 May 2013, an Informal (PEB) found the applicant found the applicant physically unfit due to PTSD. PEB recommended a rating of 50 percent and that the applicant be placed on the temporary disability retired list (TDRL) with a re-examination during February 2014. It was determined the applicant’s disability did not result from a combat-related injury. 3. On 3 June 2013, after being advised of the informal PEB and receiving a full explanation of the results of the findings and recommendations and legal rights, the applicant concurred and waived a formal hearing of his case and he did not request reconsideration of his VA rights. 4. On 17 April 2015, an informal PEB found the applicant physically unfit due to PTSD and recommended a rating of 50 percent and that he be permanently retired due to disability. It was determined the applicant’s disability did not result from a combatrelated injury. 5. On 20 April 2015, after being advised of the informal PEB and receiving a full explanation of the results of the findings and recommendations and legal rights, the applicant concurred and waived a formal hearing of his case. 6. On 28 April 2015, the applicant was permanently retired due to disability. His disability was determined not to be as a result from a combat related injury. 7. On 12 January 2017, the Army Review Boards Agency (ARBA) medical advisor provided an advisory opinion. The ARBA medical advisor concluded 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. A copy of the complete medical advisory was provided to the Board for their review and consideration. 8. On 17 January 2017, the applicant was provided a copy of the advisory opinion for comments or rebuttal. He did not respond. 9. On 10 April 2019, the U.S. Army Physical Disability Agency (USPDA) legal advisor provided an advisory opinion. The USPDA legal advisor found insufficient evidence to support the applicant’s request to award a combat-related administrative determination. The applicant’s request is legally insufficient. A copy of the complete USPDA advisory was provided to the Board for their review and consideration. 10. On 15 April 2019, the applicant was provided a copy of the USPDA advisory for comment or rebuttal. He did not respond. 11. Title 26, U.S. Code, section 104, states the term "combat-related injury" means personal injury or sickness that 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. BOARD DISCUSSION: 1. The Board carefully considered the applicant’ request, supporting documents, medical proceedings, evidence in the record and two advisory opinions. The two advisory opinions concluded that the requested correction was not supported by the evidence available for review. The Board acknowledged that the applicant was found unfit due to PTSD, after considering the advisory opinions, the applicant’s statement and medical proceedings, the Board did not find that the applicant’s condition was combat-related injury. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION 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. 6/3/2019 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Title 26, U.S. Code, section 104, states the term "combat-related injury" means personal injury or sickness that 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. 2. Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation) prescribes Army policy and responsibilities for the disability evaluation and disposition of Soldiers who may be unfit to perform their military duties due to physical disability. Chapter 5-25(d) states combat related standards 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 will be considered combat related if it causes the Soldier to be unfit or contributes to unfitness and was incurred under any of the following circumstances: (1) As a direct result following armed conflict. See paragraph 5–24f. (2) 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. (3) Under conditions simulating war. In general, this 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 (combatives 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. (4) Caused by an instrumentality of war. Occurrence during a period of war is not required. A favorable determination is made if the disability was incurred during any period of service as a result of such diverse causes as 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. However, there must be a direct causal relationship between the instrumentality of war and the disability. For example, if a Soldier is on a field exercise and is engaged in a sporting activity and falls and strikes an armored vehicle, the injury will not be considered to result from the instrumentality of war (the armored vehicle), because it was the sporting activity that was the cause of the injury, not the vehicle. On the other hand, if the individual was engaged in the same sporting activity and the armored vehicle struck the Soldier, the injury would be considered the result of an instrumentality of war (the armored vehicle). 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