IN THE CASE OF: BOARD DATE: 28 April 2020 DOCKET NUMBER: AR20180006041 APPLICANT REQUESTS: correction of his DA Form 199 (Informal Physical Evaluation Board (IPEB) Proceedings) to show his injuries were incurred as a result of a combat- related incident. He also requests a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * four third-party statements * two letters from the U.S. Army Human Resources Command (HRC) Combat- Related Special Compensation (CRSC) Branch, dated 23 February and 14 September 2015 * Integrated Disability Evaluation System (IDES) Narrative Summary (NARSUM), dated 11 September 2013 * Standard Form (SF) 600 (Chronological Record of Medical Care), dated 20 March 2012 * SF 600, dated, 27 March 2012 * medical record from the QTC Medical Group, Grovetown, GA, dated 13 August 2013 * DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, U.S. Code, 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 his PEB determined that his injuries were not combat-related. The PEB stated that his injuries occurred during physical training (PT) and therefore, not combat-related. He contends his unit participated in field training exercises involving guerilla drills. Under no circumstances did he get injured doing calisthenics exercises. According to Field Manual 7-22 (Army Physical Readiness Training) guerilla drills is a combat-related activity that falls under "simulated war." His medical records show he reported during various medical appointments that he fire-carried another Soldier in a simulated combat exercise. He deployed for a year with his injuries and continued his deployment duties, which exacerbated his back condition. 3. The applicant enlisted in the Regular Army on 7 February 2011. 4. An SF 600 dated 20 March 2012, and an SF 600 dated 27 March 2012, show the applicant reported that he injured his back while performing fireman's carry with another Soldier. 5. A medical record from the QTC Medical Group, Grovetown, GA, dated 13 August 2013, shows the applicant reported that he injured his back in November 2011 from carrying heavy equipment during PT. 6. The applicant's IDES NARSUM, dated 11 September 2013, shows he reported that in October 2011, he injured his back while performing a fireman lift during PT in his unit at Fort Gordon, GA. The IDES NARSUM further shows he also reported that in the summer of 2012, he re-injured his back while carrying heavy tents. 7. A DA Form 199 shows that on 13 March 2014, an IPEB found the applicant physically unfit for the performance of his military duties due to lumbar degenerative disc disease. The IPEB recommended a 40 percent disability rating and the applicant's permanent disability retirement. The DA Form 199 contains the following statement in Section III: "The Soldier's back pain began in October 2011 at Fort Gordon after he performed a fireman lift during physical training. His condition was exacerbated in 2012 while deployed to Kuwait and subsequently Jordan while carrying heavy tents, performing PT, and moving his duffle bags. 8. Section V of the DA Form 199 shows the IPEB determined the following: a. The disability disposition is not based on disease or injury incurred in the line of duty in combat with an enemy of the United States and 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. This determination is made for all compensable cases but pertains to potential benefits for disability retirees employed under Federal Civil Service. b. The disability did not result from a combat-related injury under the provisions of Title 26, U.S. Code, section 104 or Title 10, U.S. Code, section 10216. 9. On 18 March 2014, the applicant concurred with the IPEB's findings and recommendations and waived a formal hearing of his case. 10. The applicant provided four third-party statements, from members of his former unit and his spouse, essentially stating the applicant injured his back during PT and re- injured his back during deployment while carrying heavy equipment. 11. On 23 February and 14 September 2015, the HRC CRSC Branch denied the applicant's claims for CRSC based on the lack of evidence indicating his injuries were caused by combat-related events. 12. On 30 March 2020, the U.S. Army Physical Disability Agency (USAPDA) Legal Advisor provided an advisory opinion. The USAPDA found the applicant's request legally insufficient and stated: a. The applicant concurred with the findings of his PEB on 18 March 2014. The PEB findings stated he experienced an onset of back pain during a fireman lift in 2011 and that the condition was exacerbated in 2012 while deployed to Kuwait. The applicant has provided statements attesting to his back injury. b. The Department of Defense Instruction (DoDI) 1332.18 details when a Soldier's disability may be deemed combat-related. One is under conditions simulating war. The evidence must demonstrate a documented, direct causal relationship between the simulated armed conflict and the resulting disability. At present, the available record and statements provided by the applicant are not consistent as to the cause of the injury. A 2017 memorandum from his first line supervisor suggests the injury was as a result of moving equipment. The 2014 PEB identified onset during a fireman lift. The Compensation and Pension exam states the condition is due to injury when carrying heavy equipment during physical training. The inconsistency of the available record and documents provided by the applicant does not support the contention that the disability is combat-related. c. The PEB's findings were neither arbitrary nor capricious, and were not in violation of any statute, directive, or regulation. Based on the above, the USAPDA Legal Advisor found the applicant's request to be legally insufficient and recommended no change to his PEB determination. 13. The applicant was provided a copy of the advisory opinion on 2 April 2020 and given an opportunity to submit comments. He did not respond. BOARD DISCUSSION: After review of the applicant and all evidence, the Board found the relief is not warranted. The applicant’s contentions, his military record, the legal advisory, and regulatory guidance were carefully considered. The Board agreed with the advisory in that the applicant concurred with the findings of his PEB on 18 March 2014. The PEB findings stated he experienced an onset of back pain during a fireman lift in 2011 and that the condition was exacerbated in 2012 while deployed to Kuwait. The Board noted the PEB's findings were neither arbitrary nor capricious, and were not in violation of any statute, directive, or regulation. The Board determined the applicant does not warrant relief in this case. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : XXX :XX :XXX 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 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 635-40 (Disability Evaluation for Retention, Retirement, or Separation) prescribes Army policy and responsibilities for the disability evaluation and disposition of Soldiers who may be unfit to perform their military duties due to physical disability. Paragraph 5-24 (Determination for Purposes of Federal Civil Service Employment) states that physical disability evaluation will include a decision and supporting documentation regarding whether the injury or disease that makes the Soldier unfit or that contributes to unfitness was incurred in combat with an enemy of the United States, was the result of armed conflict, or was caused by an instrumentality of war during a period of war. These determinations impact the eligibility of certain military retirees for certain benefits when employed under the Federal Civil Service System. a. The determinations will be recorded on the record of proceedings of the Soldier’s adjudication. Notwithstanding that the determinations concern disability retirements, the determination will be documented on the record of proceedings for a disability disposition of separate with disability severance pay. b. Armed Conflict: The fact that a Soldier may have incurred a medical impairment during a period of war, in an area of armed conflict, or while participating in combat operations, is not sufficient to support a finding that the disability resulted from armed conflict. There must be a definite causal relationship between the armed conflict and the resulting unfitting disability. 3. Army Regulation 635-40, paragraph 5-25 (Determination for Federal Tax Benefits) states: a. Physical disability evaluation will include a determination and supporting documentation on whether the Soldiers disability compensation is excluded from Federal gross income under the provisions of Title 26, U.S. Code, section 104. The entitlement to this exclusion is based on the Soldier having a certain status on 24 September 1975 or being retired or separated for a disability determined to be combat related as set forth in this paragraph. The determination will be recorded on the record of proceedings of the Soldier’s adjudication. b. Combat related: This standard 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 will be considered combat-related if it causes the Soldier to be unfit or contributes to unfitness and was incurred under any of the following circumstances: (1) As a direct result of armed conflict. (2) 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. (3) Caused by an instrumentality of war. Occurrence during a period of war is not required. A favorable determination is made if the disability was incurred during any period of service as a result of such diverse causes as 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. However, there must be a direct causal relationship between the instrumentality of war and the disability. For example, if a Soldier is on a field exercise and is engaged in a sporting activity and falls and strikes an armored vehicle, the injury will not be considered to result from the instrumentality of war (the armored vehicle), because it was the sporting activity that was the cause of the injury, not the vehicle. On the other hand, if the individual was engaged in the same sporting activity and the armored vehicle struck the Soldier, the injury would be considered the result of an instrumentality of war (the armored vehicle). 4. Army Regulation 635-40, paragraph 5-27 (Determination relating to Disability Severance Pay) states: The National Defense Authorization Act for 2008 made several enhancements to disability severance pay. Two of the enhancements (disability severance pay computed as though the Soldier had at least 6 years of active duty and no recoupment of the severance pay by the VA) require the PEB make a determination as to whether the disability was incurred as described below. These determinations will be documented on the record of proceedings. a. The disability was incurred in the line of duty in a combat zone as designated by the Secretary of Defense. b. The disease or injury was incurred in the line of duty during the performance of duty in combat-related operations. To be considered incurred during the performance of combat-related operations, the criteria of paragraph 5–25, must be met. (1) To qualify as a combat zone, the area must qualify as a combat zone tax exclusion area (2) To qualify as performance of duty in combat-related operations, the disease or injury must meet the requirements to be combat related as set forth at paragraph 5–25. 5. Title 26, U.S. Code, section 104, states that for the purpose of this subsection, 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180006041 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1