BOARD DATE: 10 February 2020 DOCKET NUMBER: AR20170005746 APPLICANT REQUESTS: correction of his DA Form 199-1 (Formal Physical Evaluation Board (PEB) Proceedings) to show his disability was the result of a combat-related injury APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 199, dated 21 April 2014 * National Capital Region PEB memorandum, dated 1 May 2014 * U.S. Army Physical Disability Agency (APDA) memorandum, dated 5 May 2014 * APDA Orders D 125-04, dated 5 May 2014 * email correspondence, dated 7 May 2014 FACTS: 1. The applicant states: a. He does not feel that his rebuttal to the Formal PEB held on 13 April 2013 was given proper consideration and he would like his rebuttal, dated 9 May 2014 to be reconsidered. He asserts the disabilities sustained to his back and the radiculopathy resulting from it warrant assignment of a combat-related designation because they were the result of an improvised explosive device (IED) blast which he was subjected to while deployed. He believes his back injury should be designated as combat-related as defined in Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation). b. He does not believe the statement by Lieutenant Colonel (LTC) N____ B____ was given proper consideration when the PEB reviewed his case. LTC N____ B____ was his military transition team chief, who knew his team well. His statement is attached. As a military transition team member, they did not have the benefit of having a medical evaluation after the IED explosion. There was an error in the rebuttal, as it states: This memorandum is a rebuttal to the formal PEB decision rendered 13 August 2013, and if denied an appeal to the PDA on behalf of Sergeant First Class (SFC) R_____ M_____ (who is not the applicant) will be submitted. The appeal was rushed to meet the submittal deadline, so this may have had an effect on the review or it was not reviewed at all since it was one day past the deadline. 2. After a brief period of enlisted service in the U.S. Army Reserve (USAR), the applicant was appointed as a Reserve Commissioned Officer of the Army on 12 May 1990 and served in the USAR his entire career. 3. He was ordered to active duty in support of Operation Iraqi Freedom on 20 February 2006 and deployed to Iraq from 2 April 2206 through 20 March 2007. He was honorably released from active duty on 21 April 2007 due to the completion of required active service. 4. A DA Form 199-1, shows a formal PEB convened on 21 April 2014, where the applicant was found physically unfit and was recommended for permanent disability retirement with a combined rating of 30 percent for the following disabilities: a. Degenerative disc and joint disease, lumbosacral spine, status L5 herniation and discectomy; onset occurred in 2006 while on active duty and deployed to Iraq; recommended disability rating 20 percent. b. Radiculopathy, sensory type L4 dermatome, left lower extremity; onset occurred on 4 February 2009 while on active duty; recommended disability rating 10 percent. 5. His DA Form 199-1 further shows: a. The Board made the recommended finding that the applicant’s retirement was 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 incurred in the LOD during a period of war as defined by law. b. His disability did not result from a combat-related injury as defined in Title 26, U.S. Code, section 104 and Title 10 U.S. Code, section 10216. c. In a formal hearing held on 18 April 2014, the applicant requested the Board reconsider the above determinations that his injury was not incurred in the LOD in combat as a direct result of armed conflict or caused by an instrumentality of war and incurred in the LOD during a period of war and that his disability did not result from a combat-related injury. d. Upon consideration of the applicant’s testimony and documents provided during the hearing and in the case file, the Board determined there was insufficient objective evidence to establish a causal link between the applicant’s involvement in an IED strike during deployment and his back condition to warrant a combat-related designation. e. The DA Form 2173 (Statement of Medical Examination and Duty Status) signed by Major (MAJ) N____ B____ and dated 1 March 2007 indicates the applicant’s lower back pain is due to chronic Interceptor Multi-Threat Body Armor (IBA)wear. A further review of his medical records could not establish the IED incident as either precipitating or aggravating the applicant’s back conditions. Therefore, based on the preponderance of objective and medical evidence, the Board reaffirmed the informal PEB’s determination regarding a combat-related designation and that his disposition be permanent disability retirement with a rating of 30 percent. f. On 30 April 2014, the applicant signed the document, annotating he did not concur with the formal PEB findings and did not attach a written appeal. 6. A National Capital Region PEB memorandum, dated 1 May 2014, states they received the applicant’s non-concurrence with the formal PEB held on 18 April 2014. Although he did not provide new evidence or submit a written appeal, his case was Thoroughly reviewed and based upon careful reconsideration of his case, the PEB did Not find sufficient objective evidence to change the determination in his case. Without any new evidence, the PEB could not establish a sufficient causal link between his involvement in an IED strike during deployment and his back condition to warrant a combat-related designation. 7. A U.S. Army Physical Disability Agency (APDA) memorandum, dated 5 May 2014, advised the applicant that he had been found to have a disability and would be permanently retired with a disability rating of 30 percent. 8. APDA Orders D 125-04, dated 5 May 2014, released him from his current assignment because of physical disability and placed him on the retired list effective 9 June 2014 with a permanent disability rating of 30 percent. His disability was not based on injury or disease received in the LOD as a direct result of armed conflict or caused by an instrumentality of war and incurred in the LOD during a period of war as defined by law. His disability did not result from a combat-related injury as defined in Title 26, U.S. Code, section 104. 9. The applicant provided email correspondence, dated 7 May 2014, wherein he was advised his appeal and supporting documents were due on 8 May 2014 and the applicant responded requesting an update on the status of his appeal. 10. The applicant’s appeal and any additional evidence, to include a referenced updated statement from LTC N____ B____ are not in his available records for review. 11. On 14 January 2020, the APDA legal advisor provided an advisory opinion, stating: a. The applicant requested that a combat-related determination be applied to his Disability Evaluation System case. He believes his rebuttal submitted to the PEB determination to include a clarifying statement by LTC N____ B____ were either not received on time or were not given proper consideration. b. The applicant nonconcurred with the PEB determination on 30 April 2014 and the PEB reviewed and responded to that nonconcurrence on 21 May 2014, reaffirming the determination of the Board. Subsequently, the applicant’s Counsel submitted a written appeal with exhibits, including LTC N____ B____’s statement of clarification on 9 May 2014. The APDA reviewed the case on 3 June 2014, upholding the PEB Decision. c. Although it is written in response to the 9 May 2014 written appeal, there is no indication that Counsel’s argument was given consideration or the supporting evidence was weighed. There is sufficient evidence to support the applicant’s assertion that his back condition was sustained in an IED incident, meriting combat-related designation. In its decision, the PEB relied on the DA Form 2173 executed by then MAJ B____ in Determining the back condition was due to chronic IBA wear. In his clarification Statement, LTC B____ not only further confirms the occurrence of the IED incident, he Also established that the back pain began subsequent to the incident and gives further explanation for why treatment was not immediately sought, namely the nature of the Mobile Integrated Tactical Terminal (MiTT) and the proximity in time to redeployment. d. This sufficiently overcomes what in the majority of cases would be a lack of medical evidence. Based on the 9 May 2014 written appeal and supporting evidence, the preponderance of the evidence supports a combat-related designation for the back condition. Due to the above, the APDA legal advisor finds the applicant’s request to be legally sufficient. 12. On 20 January 2020, the applicant was provided a copy of the advisory opinion and given an opportunity to submit comments, but he did not respond. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement, his record of service to include deployed service, his disability evaluation processing and the determination of the PEB regarding the source of his injury. The Board considered his disagreement with the PEB determination and statement of clarification he provided. The Board considered the review and conclusions of the APDA advising official. Based on a preponderance of evidence, the Board determined that the applicant’s claim has merit and a correction to his record is appropriate. 2. After reviewing the application and all supporting documents, the Board found that relief was warranted. 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 amending APDA Orders D 125-04, dated 5 May 2014 to reflect that the applicant’s disability (back condition) resulted from a combat related injury: YES. 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, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent. 2. Title 26, U.S. Code, section 104 (Compensation for injuries or sickness) states gross income (for income tax purposes) does not include amounts received as a pension, annuity, or similar allowance for personal injuries or sickness resulting from active service in the armed forces of any country or in the Coast and Geodetic Survey or the Public Health Service, or as a disability annuity. 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 3. Department of Defense Instruction (DODI) 1332.38 (Physical Disability Evaluation), 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. 5. Appendix 5 (Administrative Determinations) to enclosure 3 of DODI 1332.18 (Disability Evaluation System) (DES) currently in effect, defines armed conflict and instrumentality of war. a. Incurred in Combat with an Enemy of the United States. The disease or injury was incurred in the LOD in combat with an enemy of the United States. b. Armed Conflict. The disease or injury was incurred in the LOD as a direct result of armed conflict (see Glossary) in accordance with sections 3501 and 6303 of Reference (d). The fact that a Service member may have incurred a disability during a period of war, in an area of armed conflict, or while participating in combat operations is not sufficient to support this finding. There must be a definite causal relationship between the armed conflict and the resulting unfitting disability. c. 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. d. Under Conditions Simulating War. In general, this covers disabilities resulting from military training, such as war games, practice alerts, tactical exercises, airborne operations, and 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. e. Caused by an Instrumentality of War. Occurrence during a period of war is not a requirement to qualify. If the disability was incurred during any period of service as a result of 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, the criteria are met. However, there must be a direct causal relationship between the instrumentality of war and the disability. For example, an injury resulting from a Service member falling on the deck of a ship while participating in a sports activity would not normally be considered an injury caused by an instrumentality of war (the ship) since the sports activity and not the ship caused the fall. The exception occurs if the operation of the ship caused the fall. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170005746 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1