ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 2 May 2019 DOCKET NUMBER: AR20160015094 APPLICANT REQUESTS: that his disability retirement orders be corrected to show the following: * That his disability is based on an 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 * That his disability resulted from a combat related injury as defined in Title 26, United States Code, section 104 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Retirement Orders * Commander Memorandum * DD Form 214 (Certificate of Release or Discharge from Active Duty * Afghanistan Deployment Orders * Brooke Army Medical Center Orders * U.S. Army Medical Record Excerpts FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. Applicant states the reasons for his medical discharge and retirement are because of injuries sustained in Patika Province, Afghanistan in support of Operation Enduring Freedom in October 2010. His injuries were caused by an instrument of war during a period of war, namely a 30-foot long, 4,000 pound flatbed tractor trailer that fell on his left forearm. The error needs to be corrected to reflect the truth. 3. A review of applicant’s service record shows the following: * He enlisted in the Regular Army on 2 February 2009 * On 29 June 2010, he was ordered to deploy from Fort Campbell, Ky to Afghanistan on or about 6 August 2010 and served as a Motor Transport Operator * On 18 October 2010, he received emergency treatment for a crushed left arm (with both radius and ulna fracture) caused by a trailer momentarily pinning his mid-forearm before rolling off * He was re-deployed and underwent multiple surgeries to repair his arm * A 24 April 2012 memorandum from his company commander notes that applicant had undergone four surgeries, was still in pain, and began the Medical Evaluation Board process on 18 April 2012 * On 20 August 2012, an Informal Physical Evaluation Board (PEB) recommended he be permanently retired based on unfitting injuries suffered when a trailer fell on his left arm while he was deployed to Afghanistan * The PEB also found: 1) applicant’s injury 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; and 2) applicant’s disability did not result from a combat-related injury * Applicant’s retirement orders, dated 9 October 2012 mirror the PEB’s findings above 4. On 15 November 2018, the U.S. Army Physical Disability Agency (USAPDA) responded to the ABCMR’s request for an advisory opinion in applicant’s case. The USAPDA found applicant’s request to be legally sufficient. The USAPDA concurred with applicant “that the proximate cause of his disabling and unfitting condition was directly attributed to a 4K lb trailer, otherwise qualifying under an Instrumentality of War analysis and entitled to the benefits of 26 USC 104 as appropriate.” 5. Applicant was provided a copy of the advisory opinion and did not submit additional matters. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include all medical records of the applicant, the Board determined that relief was warranted. Based upon the findings of the enclosed medical opinion finding the proximate cause of his disabling and unfitting condition was attributed to a 4K lb trailer accident, the Board concluded that the injury was in the line of duty as a direct result of armed conflict or caused by an instrumentality of war. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by changing the applicant’s disability retirement order be corrected to show the following: * That his disability is based on an 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 * That his disability resulted from a combat related injury as defined in Title 26, United States Code, section 104 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. Title 26, USC, section 104, in relevant part, exempts from federal income tax withholding a member’s disability retired pay, if the member receives disability retired pay because of a combat-related injury. The term “combat-related injury” means personal injury or sickness incurred as a direct result of armed conflict, or while engaged in extra hazardous service, or under conditions simulating war, or caused by an instrument of war.” ABCMR Record of Proceedings (cont) AR20160015094 3 1