IN THE CASE OF: BOARD DATE: 13 February 2020 DOCKET NUMBER: AR20170010213 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) * DD Form 294 (Application for a Review by the Physical Disability Board of Review (PDBR)) * 2 Letters from the Army Review Boards Agency * Letter from the Office of the Assistant Secretary * Record of Proceedings PDBR * DD Form 214 (Certificate of Release or Discharge from Active Duty) * DD Form 215 (Correction to DD Form 214) * orders 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 injured during hand-to-hand combative training. He was medically discharged due to the injuries and his records should show his disability is based on a direct result of armed conflict or caused by an instrumentality of war and is combat related. The PDBR awarded him a medical retirement after he requested a reconsideration of his medical discharge. 3. The applicant enlisted in the Regular Army on 24 January 2007. 4. On 7 August 2008, a physical evaluation board (PEB) convened and found him physically unfit due to cervical spine strain, painful right shoulder, lumbar strain, and shellfish allergy. 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 10-percent disability rating and separation with severance pay. 7. A memorandum dated 19 August 2008, indicates the applicant was informed of the PEB's decision; however, he had not responded and was considered to have accepted the findings and recommendation. 8. On 24 November 2008, the applicant was discharged due to disability, severance pay, non-combat related. 9. On 28 December 2015, after carefully reviewing the applicant's application and medical separation file, PDRB recommended to the Deputy Assistant Secretary of the Army (DASA), Army Review Boards Agency (ARBA) the applicant's separation be re- characterized to reflect permanent disability retirement with a combined rating of 30 percent rather than 10 percent. 10. On 2 September 2016, DASA, ARBA, approved the recommendation of PDRB and directed correction of the applicant's records with an effective date of the applicant's original medical separation for disability with severance pay. 11. A DD Form 215, dated 27 September 2016, corrected the applicant's DD Form 214 to show he was permanently retired due to disability. 12. On 3 January 2020, an advisory opinion was obtained from the Legal Advisor, USAPDA. The advisory states, in part: a. On 28 December 2015, PDBR completed a reconsideration of the applicant's physical disability separation. PDBR agreed to amend the applicant's determination to a permanent disability retirement and adopted VA ratings for his right shoulder condition at 10 percent, cervical spine strain at 10 percent, and lumbar strain at 10 percent for a total rating of 30 percent. The PDBR determination did not discuss a change to his combat related determinations from his original PEB. However, PDBR did note in its analysis and discussion the applicant's right shoulder, neck and back conditions were either caused or aggravated during combative training. b. The claimant postulates he was injured during hand-to-hand combative training which led to his subsequent separation from the military. However, based on his PEB proceedings the applicant's initial injuries were due to a motor vehicle accident prior to his entry into military service and re-injured during service. The Department of Defense Directive 1332.18, dated 5 August 2014, details Soldiers can incur a disability while participating in activities which simulate combat during a period of war. The evidence must demonstrate a direct causal relationship between the combat related activity and the disability. In this case, PDBR cited specific evidence of injury or aggravation during combative training as it relates to his right shoulder, neck and back. The medical evidence, which predates the referral to the PEB, is considered to be reliable and accurate. As such, there is sufficient evidence to warrant a finding of conditions simulating war (V3 -Yes). 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 sufficient. Therefore, USAPDA recommends a change to the applicant's PEB determination. The complete advisory is available for the Board's review and consideration. 10. On 24 January 2020, the applicant was provided a copy of the advisory opinion for his comment or rebuttal. He did not respond. 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. BOARD DISCUSSION: After reviewing the application, the supporting documents, the records, and the facts above, the Board found that relief is warranted. Consistent with the findings of the USAPDA, the applicant’s DD Form 214 should be corrected to show his disability was combat related under conditions simulating war. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was 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 showing on his DD Form 214 for the period ending 24 November 2008 that his disability was combat related under conditions simulating war. 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 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. 2. 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 3. 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) AR20170010213 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1