BOARD DATE: 7 February 2020 DOCKET NUMBER: AR20170014632 APPLICANT REQUESTS: severance pay and correction of his DA Form 199 (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) * Department of Veterans Affairs (VA) Disability Evaluation System (DES) Proposed Rating, dated 12 October 2011 * DA Form 199, dated 8 December 2011 * U.S. Army Installation Management Command Orders 009-0264, dated 9 January 2012 * Enlisted Record Brief, dated 1 February 2012 * Physical Disability Information Report, dated 3 February 2012 * DD Form 214 (Certificate of Release or Discharge from Active Duty) * U.S. Army Human Resources Command (HRC) Combat-Related Special Compensation (CRSC) letter, dated 13 June 2017 * excerpt from Title 10, U.S. Code * partial undated DES VA Benefits Estimate Letter 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: a. He was required to waive his severance pay at the time of his medical retirement so it would not be recouped by the VA. The disabilities for which he was medically retired have since been determined to be combat-related, incurred in the line of duty (LOD) in a combat zone, and during the performance of combat-related operations. b. In accordance with Title 10, U.S. Code, section 1212, he is entitled to this severance pay in full without VA deduction due to his injury being combat-related and it is also excluded from Federal gross income under Title 26, U.S. Code, section 104. He has tried contacting the Defense Finance and Accounting Service (DFAS) for an audit as well as HRC and they are both unaware of how to correct this injustice. c. He believes this error was due to the incompetence and/or ignorance of his PEB Liaison Officer (PEBLO) counselor at Fort Bragg, NC. He told him at the time that he did not meet the combat-related criteria and therefore was required to waive his severance pay. 3. The applicant enlisted in the Regular Army on 4 March 2008 and deployed to Iraq from 6 December 2008 through 15 November 2009. 4. A VA DES Proposed Rating, dated 12 October 2011, shows the VA provided the following proposed disabilities for DES rating for PEB referred proposed DES service- connected disabilities: a. Chronic low back pain due to degenerative disc disease lumbosacral spine; recommended disability rating 40 percent. b. Radiculopathy, left lower extremity; recommended disability rating 10 percent. c. Radiculopathy, right lower extremity; recommended disability rating 10percent. d. Penile neuropathy, erectile dysfunction secondary to bilateral lumbosacral spinal stenosis with bilateral lower extremity radiculopathy; recommended disability rating 0 percent. 5. A DA Form 199, shows a PEB convened on 8 December 2011, where the applicant was found physically unfit and was recommended for permanent disability retirement with a combined rating of 50 percent for the following disabilities: a. Chronic low back pain due to degenerative disc disease lumbosacral spine; combat-related injury; onset during deployment to Iraq where he fell from a High Mobility Multipurpose Wheeled Vehicle (HMMWV); item 10D – yes; recommended disability rating 40 percent. b. Radiculopathy, left lower extremity; combat-related injury; onset during deployment to Iraq when he fell from a HMMWV; item 10d – yes; recommended disability rating 10 percent. c. Radiculopathy, right lower extremity; combat-related injury; onset during deployment to Iraq when he fell from a HMMWV; item 10D- yes; recommended disability rating 10 percent. d. Penile neuropathy, erectile dysfunction secondary to bilateral lumbosacral spinal stenosis with bilateral lower extremity radiculopathy; item 10D –yes; recommended disability rating 0 percent. 6. His DA Form 199 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. His DA Form 199 does not contain an item 10D, which is used to designate severance pay enhancement. It only pertains to cases where there is a severance finding (less than a 30 percent combined rating), not physical disability retirement, and the condition was incurred in a designated combat zone. d. The applicant concurred with the PEB findings on 15 December 2011 and waived his right to a formal hearing of his case. He did not request reconsideration of his VA ratings. 7. U.S. Army Installation Management Command Orders, 009-0264, dated 9 January 2012, released him from his current assignment because of physical disability and retired him effective 27 February 2012 with a permanent disability rating of 50 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. 8. His Physical Disability Information Report, dated 3 February 2012, likewise shows 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 and his disability did not result from a combat-related injury as defined in Title 26, U.S. Code, section 104. 9. His DD Form 214 shows he was retired due to permanent disability (enhanced) on 27 February 2012, after 3 years, 11 months, and 24 days of net active service. He did not receive severance pay. 10. A letter from HRC, dated 13 June 2017, shows the applicant’s claim for CRSC was approved in accordance with program guidance for the following disabilities, for a combined combat-related disability rating of 100% effective August 2016: * bilateral degenerative joint disease right hip * bilateral left ankle strain * limited motion of ankle, bilateral, right ankle strain * chronic low back pain due to degenerative disc disease lumbosacral spine * cluster headaches * panic disorder with agoraphobia, to include moderate major depression and insomnia * bilateral, partial resection of right distal clavicle residual degenerative joint disease right shoulder and scars * tinnitus 11. On 14 January 2020, the U.S. Army Physical Disability Agency (USAPDA) legal advisor provided an advisory opinion, stating: a. The claimant postulates since he was awarded CRSC after his disability retirement, his Army disability retirement should also award a combat-related determination. Department of Defense Instruction (DODI) 1332.18 (Physical Disability Evaluation) details when a Soldier is deemed to have incurred a disability as a result of combat. Injuries incurred during a period of war and in an area of armed conflict are not in and of themselves 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. b. In this case, the PEB determined the applicant’s injury resulted from him slipping and falling from a military vehicle while in Iraq. Since the slip and fall could have been incurred anywhere, it is not necessary combat-related, although it did occur in a combat zone. 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, the applicant’s request is found to be legally insufficient and no change to his PEB determination is recommended. A copy of the complete medical advisory was provided to the Board for their review and consideration. 12. On 20 January 2020, the applicant was provided a copy of the advisory opinion and given an opportunity to submit comments. He provided a copy of an USAPDA Information Paper titled “Disabilities Resulting from: Armed Conflict, Instrumentality of War, Conditions Simulating War, and Disabilities Incurred in a Combat Zone” dated 24 October 2011, and rebutted the advisory opinion, stating: a. The USAPDA proposes that his request is “legally insufficient”, however they are mistaken. His service disqualifying injuries are textbook examples of injuries caused by an instrumentality of war while engaged in combat related operations. His DA Form 199 states that his injuries were combat related and indicates that he have a “10D” designation for them as well. b. Furthermore, it was decided on 13 June 2017 that 100 percent of his service- connected disabilities were indeed combat-related. Being caused both by armed conflict and instrumentalities of war, to include my service disqualifying injures with VA Codes: 5237 and 8620(x2). The PEB finding specifically states “Combat related injury; onset during deployment to Iraq fell from HMMWV (Dec 2008-Nov 2009) (10D – Yes)”. It also states that they were the proximate result of performing his duty. c. His injuries occurred in the line of duty on a combat mission, serving as an airborne infantryman deployed to Oubaidy, Iraq as an automatic rifleman. While removing his M240B from the HMMWV pintle, they came under indirect fire. Hurrying to dismount, he fell from the turret landing on the RHINO counter-IED system, all while cradling the M240B and wearing an Improved Outer Tactical Vest (IOTV) with full combat load and a M4 rifle slung across his back. His service disqualifying injuries are all combat-related and per the 10D designation, his unpaid severance pay is due to him at this time. Title 26, U.S. Code, section104, Title10, U.S Code, section 1212, Title 10 U.S. Code, section 1413, and the already referenced DODI 1332.18 all support this position. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined relief was not warranted. Based upon the findings of the advisory opinion, as well as a lack of corroborating evidence to support the statement of the applicant concerning the injury occurring during an indirect mortar attack, the Board concluded there was insufficient evidence of an error or injustice which would warrant a change to the applicant’s 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, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3 year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. 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. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. 3. 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 4. 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 5. 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. 6. 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) AR20170014632 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1