ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 4 June 2019 DOCKET NUMBER: AR20160018666 APPLICANT REQUESTS: correction of his military records to show his disability was combat related. He also requests personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Applicant Letter to the Board * Statement of Medical Examination and Duty Status * Line of Duty Investigation Memorandum 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 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. The applicant states Orders Number D084-43, dated 25 March 2014, permanent physical disability, should show his injury received in line of duty (LOD) was a direct result of Armed Conflict or caused by a instrumentality of war and incurred in the LOD during a war period as defined by law and his disability resulted from a combat related injury as defined in 26 USC 104. He was on active duty orders during war time Global War on Terrorism and Operation Enduring Freedom (OEF)/Operation Iraqi Freedom (OIF). The injuries he incurred happened during pre-mobilization training exercise. During field training, he was lifting Soldiers off of the field during a simulated nuclear, biological, chemical (NBC) attack and injured his back. He is requesting the corrections to his orders and discharge paperwork. He feel this is an injustice or error and ask that corrections be made as soon as possible. 3. The applicant provides: a. A self-authored letter to the board requesting corrections to his orders and discharge paperwork. He feels this is an injustice or error and ask that corrections be a. made as soon as possible. He attempted to address the issue with this Physical Evaluation Board Liaison Officers (PEBLO), but they were of no help or guidance. b. DA Form 2173 (Statement of Medical Examination and duty Status) giving details of the accident stated that Soldier injured back a training event at Camp Swift. He was lifting Soldiers off of the field during a simulated NBC attack. c. Line of Duty (LOD) memorandum , dated 1 June 2011, closing the investigation of the accident. 3. A review of the applicant’s service records show the following: a. Having had prior service, he enlisted in the Texas Army National Guard (TXARNG) on 18 January 2006. b. On 1 October 2009, he mobilized to Camp Swift, Texas in support of Pre- Mobilization Support for the 162nd Area Support Medical Company (ASMC) as a Full- Time National Guard (FTNG) Mobilization Augmentee. c. On 22 April 2010, his DD Form 214 (Certificate of Release or Discharge from Active Duty), shows he was released from active duty under, (AR) 635-200 (Personnel Separations-Enlisted Personnel) Chapter 4, he completed 6 months, and 22 days of active service d. On 7 March 2014, the Physical Evaluation Board (PEB) finds the Soldier physically unfit and recommends a rating of 40% and that the Soldier's disposition be permanent disability retirement. e. The PEB stated with regard to medical conditions determined to be unfitting (Section III) the following: (1) The disability disposition is 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 (5 USC 8332, 3502, and 6303). (This determination is made for all compensable cases but pertains to potential benefits for disability retirees employed under Federal Civil Service.) (2) Evidence of record reflects the Soldier was not a member or obligated to become a member of an armed force or Reserve thereof, or the NOAA or the USPHS on 24 September 1975. (3) The disability did not result from a combat-related injury under the provisions of 26 USC 104 or 10 USC 10216. (1) f. The United States Army Physical Disability Agency (PDA) placed the Soldier on the retirement list for permanent physical disability, Orders# 183-011, dated 2 July 2014. The Soldier medical conditions are: * Lumbago (back) * Chronic Right Knee Pain * Chronic Left Knee Pain g. He was honorably discharged from the Army National Guard on 30 April 2014. His NGB Form 22 (Report of Separation and Record of Service), shows he was discharged under provisions of National Guard Regulation (NGR) 600-200, (Enlisted Personnel Management). He completed 24 years and 11 months of total service. 4. On 23 October 2018, the USAPDA Legal Advisor rendered an advisory opinion and stated: a. This is in response to the 22 October 2018 request for an advisory opinion regarding applicant’s case. He requested a correction to his military records correcting his combat related administrative determinations. The USAPDA finds the applicant’s request to be legally non-sufficient. b. On 7 March 2017, a (PEB) was completed recommending permanent disability retirement finding his conditions were not within the guidelines for instrumentality of war (V1) combat related (V3) determination. PEB research shows the applicant's Lumbago condition was the result of a motor vehicle accident while on active duty while it is possible his training exercise aggravated the condition there is no direct causality to an instrumentality of war nor was it combat related. The applicant sustained his knee injuries while stationed at Fort Sam Houston, Texas conducting physical training, which again is not a direct result of an instrumentality of war or combat related. c. The applicant provided insufficient evidence to warrant a change to his retirement orders. While his conditions are in the Line of Duty, they were not a result of instrumentality of war nor combat related. For an instrumentality of war, determination to be favorability concerned there must be a direct causal relationship between the instrumentality of war and the disability. In order to have a condition found to be combat related the Soldier condition would have been attributable to the special dangers associated with armed conflict or the preparation or training for armed conflict, or a direct result following armed conflict, engaged in hazardous service, or under conditions simulating war. In light of the above reasons and in accordance with Department of Defense Instruction 1332.18 and Army Regulation 635-40, paragraph 5-25(d) (4), the request for instrumentality of war (V1N3) does not meet the minimum requirements listed above. 4. The applicant was provided a copy on 23 October 2018 of the advisory opinion and given the opportunity to provide a rebuttal, however, he did respond. 4. 5. By regulation (AR 15-185), applicants do not have a right to a formal hearing before the ABCMR. The Director of the ABCMR may grant a formal hearing whenever justice requires. 6. By law (Title 26, USC, section 10), 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, or under conditions simulating war; or which is caused by an instrumentality of war. 7. By law (Title 10, USC, section 1413a), the term “combat-related disability” means a disability that is compensable under the laws administered by the Secretary of Veterans Affairs and that is attributable to an injury for which the member was awarded the Purple Heart; or was incurred (as determined under criteria prescribed by the Secretary of Defense) as a direct result of armed conflict; while engaged in hazardous service; in the performance of duty under conditions simulating war; or through an instrumentality of war. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the legal advisory’s finding that there was insufficient evidence to warrant a change to his retirement orders, and the applicant failed to rebut those findings, the Board determined the injuries were not caused by the training as there is record he was injured prior to the mobilization training. 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. 0 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, authorizes special rules for combat-related injuries for compensation for injuries or sickness. For purposes of this subsection, the term “combat-related injury” means personal injury or sickness (A) which is incurred (i) as a direct result of armed conflict, (ii) while engaged in extra-hazardous service, or (iii) under conditions simulating war; or (B) which is caused by an instrumentality of war. 3. Title 10, USC, section 1413a, states the Secretary concerned shall pay to each eligible combat-related disabled uniformed services retiree who elects benefits under this section a monthly amount for the combat-related disability of the retiree determined under subsection (b). In this section, the term “combat-related disability” means a disability that is compensable under the laws administered by the Secretary of Veterans Affairs and that (1) is attributable to an injury for which the member was awarded the Purple Heart; or (2) was incurred (as determined under criteria prescribed by the Secretary of Defense) (A) as a direct result of armed conflict; (B) while engaged in hazardous service; (C) in the performance of duty under conditions simulating war; or (D) through an instrumentality of war. 4. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires.