ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 21 March 2023 DOCKET NUMBER: AR20170002744 APPLICANT REQUESTS: tax free severance pay due to instrumentality of war and/or a combat-related determination for his unfitting conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * two self-authored letters * letter from Platoon Sergeant * medical records FACTS: 1. The applicant states: a. The injury to his right knee occurred while he was deployed to Afghanistan between December 2012 and September 2013. He injured his knee while trying to take cover under a bunker. He was treated with a knee brace, Ibuprofen, and Naproxen. He scheduled a follow-up appointment with the same doctor in Afghanistan. He was told he'd have to wait for a Magnetic Resonance Imaging (MRI) when he got back to the United States because of the limited medical equipment in Afghanistan. b. When he visited the legal office for advice regarding his Physical Evaluation Board (PEB) he was advised to do a Department of Veterans Affairs Request for Reconsideration and not appeal his PEB results. He had no knowledge on which was better. They did not address the fact the injury happened in a combat zone. They only addressed the pain and limited mobility of his knee. 2. The applicant's service records contain the following documents for the Board's consideration: a. A DA Form 199 (Informal PEB Proceedings), dated 8 November 2016, which shows: * the PEB found the applicant to be physically unfit for duty * they recommended he receive a rating of 20 percent disability and be separated with severance pay * the disability was for right and left knee chondromalacia, degenerative joint disease and chronic quadriceps, tendinopathy in his right knee * the onset of the injury was in 2011 while the applicant was stationed in Fort Carson, Colorado * the PEB disposition was not based on injury incurred in the line of duty in combat with an enemy of the United States * the disability did not result from a combat-related injury * the disability severance pay was not awarded for disability incurred in a combat zone or incurred while performing combat related operations * the applicant concurred and waived a formal hearing in his case * the applicant requested VA reconsider his disability rating * the applicant signed the PEB on 18 November 2016 b. A DD Form 214 (Certificate of Release or Discharge from Active Duty), which shows the applicant was honorably discharged on 15 March 2017 for disability non- combat (enhanced) with severance pay. He received $34,729.20 in severance pay. 3. The applicant's service records are void of documentation showing he incurred his injury in Afghanistan. 4. The applicant provides the following documents for the Board's consideration: a. Two self-authored letters, which state in pertinent part: * the applicant provided his MRI results for the Board's consideration * the radiology report was not uploaded into his records * he received a copy of the report before he left Korea * the time he saw the doctor in Afghanistan was not in his records * the only reports from Afghanistan were when he was seen for his hip which was injured at the same time as the knee injury * he injured his knee while deployed to Afghanistan * he was taking cover inside a bunker when the injury occurred * he landed awkwardly on a rock and his weapon * he went to the Troop Medical Clinic in Bagram, Afghanistan * the doctor had limited medical equipment at the clinic * they could not see what was done to his knee * he had to wait to return to the United States before he could get an MRI * he got an x-ray done when he returned to the states he did not break any bones * in 2014 he was stationed in Korea * when he arrived there his knee was in more pain * he was referred for an MRI and that was when they discovered the injuries to his knee b. A Memorandum for Record from the applicant's former platoon sergeant, dated 1 February 2017, which states: * the platoon sergeant witnessed the applicant injure his right knee while going to a bunker during an attack on their base * he and several Soldiers had to carry the applicant to the clinic after the attack due to the severity of his injury * since the incident in Afghanistan, the applicant had continuous issues with his knee * the applicant went to the clinic numerous times because of the pain in his right knee c. MRI results of his right knee, dated 3 March 2015, which show: * the applicant had chronic left knee pain since 2012 * he had gradually worsening atraumatic right knee pain * the pain is worse when the applicant was running and jumping * there is no information regarding the injury occurring in Afghanistan 5. In the processing of this case, an advisory opinion was obtained on 21 February 2020, from the Legal Advisor, US Army Physical Disability Agency (USAPDA). The advisor stated: a. The applicant requests an instrumentality of war and/or a combat-related determination for his unfitting conditions. For the reasons below, the USAPDA finds the request to be legally insufficient. b. The applicant concurred with the findings of his Physical Evaluation Board (PEB) findings on 18 November 2016, waiving his right to a Formal PEB. The PEB found him unfit for continued military service for bilateral chrondromalacia degenerative joint disease with no specific trauma noting the onset began in 2011 while stationed at Fort Carson, CO. At no time during his initial PEB did he submit evidence his injury was due to combat action or training for combat. c. The applicant claims his condition should have a combat-related determination as he fell attempting to reach a bunker during an incoming alert. The evidence provided by the applicant does not support the provisions for combat-related injury as defined in Department of Defense Instruction (DoDI) 1332.18, which details when a Soldier’s disability is deemed as incurred 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 disability. To support his position, the applicant provided a single, unsigned, witness statement and a medical record from 2015. He admits that he does not have medical evidence of his injuries from when he was deployed. Unfortunately, for the applicant, there is substantial evidence that his chronic knee conditions began prior to his deployment. A medical record from 14 June 2011 indicates that he first complained of having bilateral knee pain for the past two months. On 26 October 2011, he underwent a MRI and was diagnosed with, “significant lateral patellar chondromalacia.” This is the same condition that he was separated for. Indeed, his provider opined in 2011 that his conditions, “could potentially be acute on chronic.” Thus, a preponderance of evidence does not support his contentions. d. In conclusion, 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. 6. The applicant was provided a copy of this advisory opinion on 25 February 2020, to provide him an opportunity to comment and/or submit a rebuttal. He did not respond. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. The evidence of record shows the applicant concurred with the findings of his informal PEB on 18 November 2016, waiving his right to a formal PEB. The PEB found him unfit for continued military service for bilateral chrondromalacia degenerative joint disease with no specific trauma noting the onset began in 2011 while stationed at Fort Carson, CO. At no time during his initial PEB did he submit evidence his injury was due to combat action or training for combat. The Board reviewed and agreed with the advisory opinion that the evidence provided by the applicant does not support the provisions for combat- related injury as defined by DODI 1332.18, and it was a condition that began prior to his deployment. ? 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. REFERENCE: Department of Defense Instruction 1332.18 (Disability Evaluation System) states, this standard covers injuries and diseases attributable to the special dangers associated with armed conflict or the preparation or training for armed conflict. A disability is considered combat-related if it makes the Service member unfit or contributes to unfitness and the preponderance of evidence shows it was incurred under any of the following circumstances. a. As a Direct Result of Armed Conflict. b. While 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. c. 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. d. 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) AR20170002744 1 1