ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 3 December 2019 DOCKET NUMBER: AR20170014193 APPLICANT REQUESTS: correction of his disability retirement orders 304-1312, dated 30 October 2012, to show: * Disability is based on injury or disease received in the line of duty as a direct result of armed conflict or caused by instrumentality of war and incurred in the line of duty during a period of was as defined by laws: Yes * Disability resulted from a combat related injury as defined in 26 USC 104: Yes APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Congressional Inquiry, dated 28 August 2019 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 (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 that his Disability Retirement Orders contain errors and injustices regarding the character of his injury. In 2004, his initial injury occurred while being extracted from an improvised armored SUV, while conducting a battle drill, was dropped striking back and head the combat theater of Iraq. In 2011, his initial injury was aggravated while becoming dislodged and striking his head and back in a MRAP roll-over simulator in the theater of Kuwait. He requests the following change on his Disability Retirement Orders 305-1313, dated 30 October 2012: * Disability is based on injury or disease received in the line of duty as a direct result of armed conflict or caused by instrumentality of war and incurred in the line of duty during a period of was as defined by laws: Yes * Disability resulted from a combat related injury as defined in 26 USC 104: Yes He further states that the character of wartime service injury was not accurately annotated in the initial Physical Evaluation Board (PEB) nor updated with the continuation on active duty (COAD) with supporting documents from his unit command not associated with deployment. The 2006 medical evaluation board (MEB) did not detail injury origin accurately. Further, the 2012 PEB relied upon initial PEB with error of character of initial injury. The applicant deployed as an individual augmentee in 2004 during a period of extreme shortage of armored Vehicles. Improvised armored non tactical vehicles were used in conducting battle drills where he was injured; local clinic supported with motrin. The applicant completed his tour and returned to home station and subsequently permanent change of station (PCS)'d resulting in a PEB in 2005 with a COAD to continue service. The applicant deployed to Iraq 2011 wherein he aggravated his initial injury by becoming dislodged in a vehicle roll over simulator. Upon being hired as a civil service employee, HR personnel discovered the military retirement orders did not reflect his service-connected disability being incurred or even aggravated by his war time service to process military buy back. 3. The applicant provides a congressional inquiry from senator X__ X. X__ office in reference interest the applicant’s case. 4. A review of the applicant’s service record shows the following: a. He enlisted in the Army National Guard (ARNG) on 24 September 1988. b. He enlisted in the Regular Army (RA) on 29 December 1994. He re-enlisted on 6 March 1998 and 29 April 2001. c. He served in Kuwait from 19 February 2011 to 20 August 2011, Iraq from 13 April 2004 to 14 July 2004 and from 20 December 2003 to 21 December 2003, Korea from 5 June 2002 to 6 June 2003, Kuwait from 1 May 2001 to 2 July 2001, and the Gulf War from February 1991 to June 1991. d. Medical Evaluation Board, dated 21 July 2006, states that the applicant is referred to the Physical Evaluation Board for adjudication for fitness for duty. Because of the nature of his MOS, he is unable to perform the duties expected of him, in addition to the physical fitness requirements that are required of Army Soldiers in general. Again, the MEB would like to reiterate the applicant has a strong desire to stay in the military with the physical limitations noted on his profile form. The MEB report states that going back to when the applicant initially developed problems, the patient sustained no trauma and there was no specific event when his back pain started; however, because of his frequent deployments, he overall feels the cumulative trauma sustained during those deployments has caused him to have the chronic low back pain. e DD form 199 (PEB), dated 13 October 2006, states that the applicant’s functional limitations in maintaining the appropriate level of stamina, caused by the physical impairments recorded (Chronic low back pain with atraumatic onset in Jun 05), make you medically unfit to perform the duties required of a Soldier of his rank and primary specialty. Since he has a service-connected medical conditions, you should contact a Department of, Veterans Affairs counselor to learn about available le benefits such as disability compensation, rehabilitation programs. Block 10 state that the applicant’s retirement is not based on disability from injury or disease received in the line of duty as a result of armed conflict or caused by an instrumentality of war and incurring in line of duty during a period as defined by law. f. The applicant’s request for COAD was favorable considered. The applicant is authorized retention on active duty until completion of 20 years which will qualify him for retirement. g. Veteran Affairs Letter, dated 7 August 2012, lists the proposed disability rating for the applicant for: * Degenerative Arthritis, Thoracolumbar Spine with Sprain [Disability Evaluation System (DES)/PEB Referred] PEB 10% * Post-Traumatic Stress Disorder, Service Connected Gulf War, 50% * Asthma, Service Connected Gulf War, 30% * Benign Prostate Hypertrophy, service connected Gulf War, 20% * Degenerative Arthritis, right shoulder, Service connected Gulf War, 10% * Gout, left knee, Service connected Gulf War, 10% * Gout, left knee, Service connected Gulf War, 10% * Gout, right foot, Service connected Gulf War, 10% * Cataracts with floaters and photophobia, Service connected Gulf War, 10% * Tinnitus, Service connected Gulf War, 10% * Carpal tunnel syndrome, right hand, service connected Gulf War, 10% * Carpal tunnel syndrome, left hand, service connected Gulf War, 10% h. Orders 304-1312, dated 30 October 2012, states that the applicant was released from assignment and duty because of physical disability incurred while entitled to basic pay and under conditions that permit his retirement for permanent disability effective 2 January 2012. It further states that disability is based on injury or disease received in the line of duty as a direct result of armed conflict or caused by an by instrumentality of war and incurred in the line of duty during a period of was as defined by laws: NO. Disability resulted from a combat related injury as defined in 26 USC 104: NO i. DD form 199, dated 18 September 2012, states that intervertebral Disc Degeneration and Herniated Lumbar Disc without Unfitting Radiculopathy (MEB Dx 1, 2) is not a combat injury and was not incurred in a combat zone, but was aggravated while deployed to Iraq. j. He was retired from active duty on 2 January 2013 with an honorable character of service. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows in block 28 (Narrative Reason for Separation) Disability, Permanent (Enhanced). It also shows that he completed 19 years 2 months and 23 days of active duty service. k. A medical advisory opinion, 6 November 2019, states that request for an advisory opinion regarding the applicant’s case. The applicant requests an instrumentality of war and a combat related determination for his intervertebral Disc Degeneration and Herniated Lumbar Disc without unfitting radiculopathy condition. For the reasons below, they find the request to be legally sufficient. The applicant postulates his injury meets the requirements for an instrumentality of war and/or a combat related determination based on aggravation to his back from a simulated roll over in a Mine Resistant Ambush Protected Vehicle (MRAP). Based on the preponderance of medical evidence provided during his 2005 and 2012 IDES cases, specifically the NARSUM from 2005 and the findings of re-aggravation of the condition in 2012, it appears that CW2 (R) Armstrong is entitled to an instrumentality of war and conditions simulating combat determinations. 5. By regulation, AR 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, and appointment, including officer procurement programs. Individuals evaluated will be reported as Medically Acceptable or Medically Unacceptable by reason of medical fitness or medical unfitness. 6. Title 26 USC 104 states for purposes of this subsection, the term “combat-related injury” means personal injury or sickness that 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. 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. 8. By regulation, AR 635-40, Paragraph 4-24 states that the U.S. Army Human Resource Command will dispose of the case by publishing orders or issuing proper instructions to subordinate headquarters, or return any disability evaluation case to U.S. Army Physical Disability Agency for clarification or reconsideration when newly discovered evidence becomes available and not reflected in findings or recommendations. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found relief was not warranted. Based upon the documentary evidence provided by the applicant and found within the military personnel file, the Board found that although the applicant’s injury was sustained while serving in a combat environment, the event for which the injury was incurred was a training-related event and not related to any combat related activity with an armed enemy. As such, the Board concluded that there was insufficient evidence of an error or injustice which would warrant a correction to the record. 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. 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 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. Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, provides the evaluation for physical fitness of Soldier who may be unfit to perform their military duties because of physical disability. a. Paragraph 1-1 (Purpose) Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, or rating. A correlation must be established between the Soldiers medical defects and physical capabilities. b. Paragraph 4-26a (Army disability rating review board) states that the ADRRB may notify or amend a fully executed retirement order of a Soldier based on whether substantial new evidence exists which by due diligence, could not have been presented before disposition was accomplished, and the evidence would have warranted a higher percentage of disability if presented before disposition. 3. AR 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, and appointment, including officer procurement programs. Individuals evaluated will be reported as Medically Acceptable or Medically Unacceptable by reason of medical fitness or medical unfitness. 4. Title 26 USC 104 states for purposes of this subsection, the term “combat-related injury” means personal injury or sickness that 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. 5. 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. 6. By regulation, AR 635-40, Paragraph 4-24 states that the U.S. Army Human Resource Command will dispose of the case by publishing orders or issuing proper instructions to subordinate headquarters, or return any disability evaluation case to U.S. Army Physical Disability Agency for clarification or reconsideration when newly discovered evidence becomes available and not reflected in findings or recommendations. NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20170014193 5 1