ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 9 May 2019 DOCKET NUMBER: AR20160014992 APPLICANT REQUESTS: correction of Orders 161-0008, dated 9 June 2016 to show that his 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 as was defined by law. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 294 (Application for a Review by the Physical Disability Board of Review (PDBR)) * Orders 161-0008 (Retirement Orders) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * DD Form 215 (Correction to DD Form 214) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20160008272 on 1 June 2016. 2. The applicant states that he was recently retired by the U.S. Army Physical Disability Agency (USAPDA) and they stated his injuries were not related to combat as defined under 26 U.S. Code 104. In his medical records, it is listed that he has had multiple combat vehicle accidents, subjected to improvised explosive devices (IEDs) and rocket propelled grenade (RPG) fire that occurred in 2003 through 2004. His head, back, and neck were injured during Operation Iraqi Freedom (OIF) 1. The accidents were reported to the chain of command and no treatment was offered since he was a company commander. He also reported post-traumatic stress disorder (PTSD). The Army rated him at 0%, but the Department of Veterans Affairs (VA) rated him at 30% and combat related. He was awarded the Combat Action Badge. He was a reserve Solider mobilized for OIF and injured in 2007 while he was stateside at Fort Dix while he was mobilizing for deployment. He believes his disabilities are directly related injuries that were incurred as a direct result of armed conflict, hazardous duty, an 1. instrumentality of war or simulated war. He is asking the Board to change his injuries from non-combat related to combat related. 3. The applicant provides: a. DD Form 294, which shows he applied for a review by the PDBR of the rating awarded to him for his medical separation from the Army on 11 January 2014. b. Orders 161-0008, dated 9 June 2016, which show he was retired because of physical disability incurred while entitled to basic pay and under conditions that permit his retirement for permanent physical disability. 4. A review of the applicant’s service records show: a. Having prior service in the U.S. Marine Corps, the applicant was appointed in the Army National Guard (ARNG) on 9 June 1999. b. He served in: * Southwest Asia from 3 April 2003 to 4 December 2003 * Kuwait from 3 April 2003 to 22 April 2003 * Iraq from 23 April 2003 to 1 December 2003 * Kuwait from 2 December 2003 to 4 December 2003 c. He separated from the ARNG on 27 April 2004 for appointment in another service. d. He entered active duty on 5 March 2007 in support of OIF. e. On 1 November 2007, a Physical Evaluation Board (PEB) convened and found the applicant’s condition of cervical strain with intermittent radiation of pain, chronic left shoulder pain, and PTSD and made him physically unfit and recommended a combined rating of 10%. The board recommended the applicant be separated with severance pay. f. His DA Form 199 (PEB Proceedings) shows the Soldier’s retirement is not based on disability from injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurring in line of duty during a period of war as defined by law and that the disability did not result from a combat related injured as defined in Title 26 U.S. Code 104. g. On 7 January 2008, he was discharged from active duty. His DD Form 214 shows he was discharged under AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b (3) for physical disability with severance pay. a. h. On 29 March 2016, he received the official PDBR rating increase from 10% to 40%. This rating included a summary of the case. i. On 1 June 2016, the PDBR sent their recommendation on the applicants disability status. In turn, the Army Review Boards Agency (ARBA) sent a letter accepting the recommendation of the 40% increase for the applicant. j. On 9 June 2016, his previous discharge orders were revoked and re-issued to include a disability rating change from 10% to 40% with a permanent disability status. He was issued a DD Form 215 for disability, permanent on 10 June 2016. No injuries received are from armed conflict or caused by instrumentality of war incurred in the line of duty during a period of war. No disability resulted from a combat related injury as defined by 26 U.S. Code 104. k. On 13 June 2016, ARBA provided an information letter concerning correction of the applicants disability separation records and retirement benefits that states that the applicant’s previous retirement orders will be revoked and he will permanently retire at 40% with a retroactive date to the date he separated with disability severance. The applicants dependents will be entitled to identification cards (ID) through the Defense Enrollment Eligibility Reporting System (DEERS). l. On 14 February 2019, the Senior Medical Advisor for ARBA made the opinion to the Case Management Division (CMD) and stated that the applicant did not meet medical retention standards for PTSD, left shoulder, and that a review of the available documents found no evidence to support his claims that would support a change to his rated disability or combat related case. Applicant did meet medical retention standards for adjustment disorder, low back pain, possible TBI (Traumatic Brain Injury), hyperlipidemia, headaches, tinnitus, sleep apnea, and other conditions. 5. By regulation, AR 635-40, Paragraph 4-24 states that the U.S. Army Human Resource Command will dispose of the case by publishing orders or issuing proper instructions to subordinate headquarters, or return any disability evaluation case to U.S. Army Physical Disability Agency for clarification or reconsideration when newly discovered evidence becomes available and not reflected in findings or recommendations. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon documentary evidence presented by the applicant and found within the military service record, the Board found insufficient evidence that would justify changing the service record. Based upon the findings within the medical advisory, the Board concluded there was no error or injustice which would warrant changing the record of the applicant. 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. 5/13/2019 X CHAIRPERSON Signed by: 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. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 635-40 paragraph 4-24b (3), states that the U.S. Army Human Resources Command will dispose of the case by publishing orders or issuing proper instructions to subordinate headquarters, or return any disability evaluation case to U.S. Army Physical Disability Agency for clarification or reconsideration when newly discovered evidence becomes available and not reflected in findings or recommendations. 3. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors, when taking action on applications from former service members administratively discharged under other than honorable conditions, and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 4. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole, or in part, to: mental health conditions, including PTSD; TBI; sexual assault; sexual harassment. Boards were directed to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part to those conditions or experiences. The guidance further describes evidence sources and criteria, and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for that misconduct which led to the discharge.