BOARD DATE: 24 July 2020 DOCKET NUMBER: AR20170003463 APPLICANT REQUESTS: correction of his separation orders to show his disability is based on a direct result of armed conflict or caused by an instrumentality of war and is combat related. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * On-line Application * Orders * Correspondence from the Army Human Resources Command (AHRC) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code, section 1552(b); however, the 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. The applicant states, in effect, he was unable to apply for Combat Related Special Compensation (CRSC) until he was medically retired. He was medically retired in October 2012. His DD Form 214 (Certificate of Release or Discharge from Active Duty) and separation orders were corrected to show his medical retirement. In July 2013, he was approved for CRSC; however, his orders do not reflect his injuries were combat related or incurred as a result of instrumentality of war. 3. The applicant enlisted in the Regular Army on 22 November 1995. 4. On 11 February 2002, a PEB found the applicant unfit due to low back pain following a lifting injury in March 2001. The PEB recommended a combined disability rating of 10 percent and separation with severance pay. On 20 February 2002, the applicant did not concur with the PEB findings and indicated his written appeal was attached. 5. The disability description section of his DA Form 199 (PEB Proceedings) states, in part: a. The Soldier's retirement is not based on disability from injury or disease received in the LOD as a direct result of armed conflict or caused by an instrumentality of war and incurring in the LOD during a period of war as defined by law. b. The disability did not result from a combat-related injury as defined in Title 26, U.S. Code, section 104. 6. On 7 May 2002, the Physical Disability Board of Review recommended the applicant's prior determination be recharacterized and the applicant's discharge with severance pay be changed to reflect permanent disability retirement, effective as of the date of his prior medical separation. 7. Headquarters, U.S. Army Garrison, Fort Wainwright, Orders 289-0204, dated 15 October 2012, permanently retired him effective 21 May 2002 with a 40-percent disability rating. Paragraph 2 of these orders state: a. "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 war as defined by law: No." b. "Disability resulted from a combat related injury as defined in 26 USC 104 [Title 26, U.S. Code, section 104]: No." 8. A DD Form 215, dated 16 October 2012, corrected the applicant's DD Form 214 to show he was permanently retired due to disability. 9. A letter from the AHRC CRSC Branch, dated 2 July 2013, shows the applicant was awarded combat-related disability for chronic back strain with degenerative disc disease and degenerative joint disease-20 percent and lumbar radiculopathy, left lower extremity-10 percent. The justification/comments section states "Documentation verifies disability as combat-related" for the chronic back strain and "Documentation confirms condition as secondary to VA Code 5237" for the lumbar radiculopathy. 10. On 30 October 2015, the applicant was informed by a supervisor in the Veteran Inquiry Section, AHRC, that they were unable to process his requested DD Form 215. The Physical Disability Agency evidence clearly reflected his back was injured in March 2001, while carrying a litter with a patient during an air-evacuation in Alaska. 11. Title 26, U.S. Code, section 104, states 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 caused by an instrumentality of war. 12. The Army Review Boards Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant's records in iPERMS, the Armed Forces Health Longitudinal Technology Application (AHLTA), Health Artifacts Image Management Solutions (HAIMS) and the VA's Joint Legacy Viewer (JLV) and made the following findings and recommendations: a. The applicant is requesting correction of military orders to reflect combat designation for his disability (a lumbar condition), for which he contends he was approved for CRSC (Combat-Related Special Compensation) disability. The 11 February 2002 PEB Proceedings show that the lumbar condition was deemed not incurred in the line of duty as a direct result of armed conflict and in addition, the lumbar condition did not result from a combat related injury. PEB notes show the mechanical low back pain occurred following a lifting injury. b. One month after the injury, the 17 April 2001 Kamish Aviation Medical Clinic note requesting physical therapy consultation reads that the method of injury was “lifting patient.” A DA Form 2173 signed on 10 October 2001 details that “while on an air-evac mission in the Yukon area” the applicant and another Soldier “dragged a patient 3-4 blocks and as they were loading the patient into the aircraft the patient was falling so [applicant] lunged forward to catch the patient and when he did this he felt a tearing feeling and then ‘heat’ radiating down his legs to his toes and up his mid back.” There were no other medical records available for this review that were either proximate to the lumbar injury itself or the MEB/PEB process. c. The 19 April 2012 Physical Disability Board of Review notes show that the lumbar injury occurred “while lifting a litter onto a helicopter.” The PEB found the lumbar condition unfitting. The lumbar condition was a MEB referred condition and did not meet retention standards. Combat designation is outside the purview of the ARBA Medical Advisor. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found the requested relief is not warranted. 2. The Board found insufficient evidence to support a conclusion that the PEB erred in determining that the applicant's disability was not a direct result of armed conflict or caused by an instrumentality of war or that his disability did not result from a combat- related injury. The Board agreed that the later favorably CRSC determination is not, in itself, evidence of error on the part of the PEB. Based on a preponderance of evidence, the Board determined the PEB's determinations were not in error or unjust. 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. 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. The applicant did not file within the three year time frame provided in Title 10, United States Code, section 1552(b); however, the 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. The U.S. Army Human Resources Command Adjutant General Directorate defines an "instrumentality of war" as a vehicle, vessel, or device (e.g., combat vehicles, weapons, Agent Orange) designated primarily for military service and intended for use in such service at the time of the occurrence or injury. It may include such instrumentalities not designated primarily for military service if use of or occurrence involving such instrumentality subjects the individual to a hazard peculiar to military service. Such use or occurrence differs from the use or occurrence under similar circumstances in civilian pursuits. 3. DODI 1332.38, paragraph E3.P5.2.2 (Combat-Related), 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 shall be considered combat related if it makes the member unfit or contributes to unfitness and was incurred under any of the following circumstances: * as a direct result of armed conflict * while engaged in hazardous service * under conditions simulating war * caused by an instrumentality of war 4. DODI 1332.38, paragraph E3.P5.2.2.3 (Under Conditions Simulating War), in general, 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, 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170003463 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1