IN THE CASE OF:  

		BOARD DATE:  18 September 2020

		DOCKET NUMBER:  AR20170006420


APPLICANT REQUESTS:  correction of his separation orders to show his disability is 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)
*	Orders
*	Letter from U.S. Army Human Resources Command (AHRC)
*	DA Form 2173 (Statement of Medical Examination and Duty Status)

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 he applied for Combat Related Special Compensation (CRSC) 
and his application was approved.  The U.S. Army Physical Disability Agency 
(USAPDA) has the same information he forwarded to AHRC and believes his retirement 
order is in error.  It's only right for a service member's record to correctly show what 
they achieved and accomplished while serving.  This issue has affected his retirement 
benefits due to incorrect information being forwarded to the Internal Revenue Service 
for taxation purposes. 

3.  His medical evaluation board proceedings are not available for review.

4.  On 17 November 2011, a physical evaluation board (PEB) found him physically unfit 
due to asthma, degenerative arthritis of the spine (cervical and lumbar), and paralysis of 
sciatic nerve.

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 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.  The PEB recommended a 60-percent disability rating and permanent disability 
retirement.  On 23 November 2011, he concurred with the PEB findings and waived a 
formal hearing.

7.  Headquarters, USAPDA, Orders D341-01, dated 7 December 2011, permanently 
retired him effective 11 January 2012 with a 60-percent disability rating.  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 letter from AHRC CRSC Branch, dated 10 January 2013, shows the applicant was 
awarded combat-related disability for degenerative changes lumbar spine and cervical 
spine degenerative disc disease - 30 percent effective 12 February. The 
justification/comments section states "Documentation supports evidence of injury while 
simulating war."

9.  On 3 January 2020, an advisory opinion was obtained from the Legal Advisor, 
USAPDA.  The advisory states, in part:

     a.  The applicant concurred with the findings of his PEB on 23 November 2011. The 
PEB findings specifically stated his condition was due to a combat injury. The claimant 
was found unfit for duty for asthma and degenerative arthritis, PEB acknowledged both 
conditions occurred while in a combat zone; however, neither were caused by direct 
combat or incurred as an instrumentality of war.

     b.  The applicant postulates since he was awarded CRSC after his disability 
retirement, his Army disability retirement orders should also state "Yes" for a combat 
related award determination.  Department of Defense Instruction (DoDI) 1332.18, dated 
5 August 2014, details Soldiers incurring a disability during a period of war, in an area of 
armed conflict, or while participating in combat operations is not sufficient to support an 
administrative determination that a disability is a direct result of combat related activity. 
The evidence must demonstrate a direct causal relationship between the combat 
related activity and the disability. Moreover, a finding of CRSC by U.S. Army Human 
Resources Command is not the same finding as determined by the USAPDA.

     c.  The PEB's findings were neither arbitrary nor capricious and were not in violation 
of any statute, directive or regulation. Due to the above, we find the applicant's request 
to be legally insufficient. The USAPDA recommends no change to his PEB 
determination.  The complete advisory is available for the Board's review and 
consideration.

10.  On 7 January 2020, the applicant was provided a copy of the advisory opinion for 
comment or rebuttal.   

11.  On 8 March 2020, in response to the USAPDA advisory opinion, the applicant
resubmits a copy of DA Form 2173 and states, in part, he was involved in a HMMWV
accident while deployed to a combat zone.  He didn’t have any degenerative arthritis
issues before his deployment and if he had, it would have been found prior to his
deployment.  He asks that all evidence be given a fair review before a final conclusion is
made.

12.  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.

BOARD DISCUSSION:

1.  After reviewing the application and all supporting documents, the Board found that 
relief is not warranted.

2.  The Board found that, while the applicant was injured in a HMMWV accident while in 
a combat zone, the injury itself was not the direct result of armed conflict, incurred while 
engaged in extra hazardous service under conditions simulating war, or caused by an 
instrumentality of war.  The Board concurred with the conclusion of the USAPDA 
advisory official that the PEB's determination was not in error.  The Board determined 
there is insufficient evidence to support a recommendation for relief in this case.

?
BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	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.  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.

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)	 AR20170006420


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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