BOARD DATE: 10 February 2020 DOCKET NUMBER: AR20180007579 APPLICANT REQUESTS: correction of his physical disability retirement orders to show: * his disability is based on injury or disease received in the line of duty (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 * 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) * Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell Orders 034-0709, dated 3 February 2005 * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Physical Disability Board of Review (PDBR) Record of Proceedings, dated 16 May 2013 * PDBR memorandum, signed 20 June 2013 * Army Review Boards Agency (ARBA) letter, dated 8 July 2013 * Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell Orders 192-0600, dated 11 July 2013 * Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell Orders 192-0601, dated 11 July 2013 * DD Form 215 (Correction to DD Form 214), dated 25 July 2013 * U.S. Army Physical Disability Agency (APDA) letter, dated 26 July 2013 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 is requesting correction of his retirement orders. His orders state his disability retirement was not due to disability in the line of duty or the result of a combat-related injury. He is submitting his application to request revocation of these orders and the issuance of new orders to reflect this correction. b. He believes this error was made just as his initial reason for separation was made in error, which he appealed to the PDBR and had corrected to reflect retirement. His disability was incurred during his deployment to Iraq, prior to which he was healthy and fully capable of all active duty responsibilities. It was his service in Iraq that caused him to not be able to stay in the Army. He was medically evacuated out of Iraq to Landstuhl, Germany then back to Fort Campbell, KY. c. His disability was incurred during a period of war as defined by law and was the reason he received a permanent medical retirement. He is requesting those two statements on his orders to be corrected to allow him to request concurrent receipt of Army disability retirement pay and Department of Veterans Affairs (VA) disability pay. 3. The applicant enlisted in the Regular Army on 25 June 1996 and served in Kuwait/Iraq from 1 June 2003 through 1 September 2003. 4. Documents pertaining to his Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB) were not provided by the applicant and are not in his available records for review. 5. Headquarters, 10st Airborne Division (Air Assault) and Fort Campbell Orders 034-0709, dated 3 February 2005, honorably discharged him effective 26 March 2005 due to disability with a rating of 10 percent, authorizing him to severance pay. 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 war period as define by law. His disability did not result from a combat-related injury. 6. His DD Form 214 shows he was honorably discharged due to disability with severance pay on 26 March 2005, after 8 years, 9 months, and 2 days of net active service. 7. The applicant provided a PDBR Record of Proceedings, dated 16 May 2013, which shows: a. The applicant was medically separated for Kartagener’s Syndrome (KS) (a rare hereditary disease that causes defects in the action of cilia lining the respiratory tract) with chronic sinusitis. He developed multiple upper respiratory infection symptoms while deployed in support of Operation Iraqi Freedom. The condition would improve with empiric treatment and deteriorate without treatment. The applicant was evacuated from the area of responsibility to Germany for treatment. His condition could not be adequately rehabilitated to meet the physical requirements of his military occupational specialty or satisfy physical fitness standards. He was issued a permanent physical profile rating of “3” for the condition and referred to an MEB. The MEB characterized the KS with chronic sinusitis conditions as medically unacceptable and existed prior to service (EPTS) and forwarded his case to the Informal PEB. No other conditions were submitted by the MEB. The Informal PEB adjudicated his KS with chronic sinusitis as unfitting with a disability rating of 10 percent. The applicant then appealed to the Formal PEB, which affirmed the Informal PEB rating. b. The applicant contends he was not rated fairly by the MEB/PEB compared to what the VA used to rate his medical condition when he was going through the MEB. His disability rating should have equaled the VA rating and he should have been medically retired instead of medically separated. c. A ratings comparison shows the Formal PEB rated the applicant’s KS with chronic sinusitis as 10 percent disabling on 19 January 2005, while on an unspecified date after his separation, the VA rated the same conditions as 30 percent disabling. d. After reviewing all the available evidence, the records showed the applicant experienced multiple upper respiratory infections requiring medical treatment while deployed. He would improve with treatment but deteriorate after completing his course of treatment with antibiotics and/or breathing medications. In August 2003, he developed severe respiratory distress, not helped by the usual treatments and was evacuated from the theater with pneumonia and transferred back to the U.S. His service treatment records indicate he was seen and treated for symptoms due to KS continuously from mid-August 2003 through his discharge. e. The PEB rated the applicant’s KS with chronic sinusitis at 10 percent while the VA rated the applicant’s KS condition as analogous to asthma at 30 percent. The PEB came to this conclusion by using a combined rating approach for his KS and sinus and lung conditions. After deliberation, the PDBR determined the applicant’s KS condition most nearly met the 30 percent disability rating and was analogous to chronic sinusitis with bronchiectasis. The PDBR recommended the prior PEB determination be modified to recharacterize the applicant’s discharge with severance pay to reflect permanent disability retirement due to KS with chronic sinusitis condition with a combined disability rating of 30 percent. 8. An ARBA letter, dated 8 July 2013, informed the applicant the recommendation of the PDBR to recharacterize his separation as a disability retirement with a combined disability rating of 30 percent effective the date of his medical separation for disability with severance was accepted. 9. On 11 July 2013, his original separation orders were revoked and Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell Orders 192-0601, dated 11 July 2013 were issued, placing him on the retired list effective 27 March 2005, due to physical disability with a 30 percent disability rating. His retirement orders show 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. 10. A DD Form 215, issued on 25 July 2013, amended his prior DD Form 214 to delete Reference to disability with severance pay and show permanent disability retirement. 11. An APDA letter, dated 26 July 2013, informed the applicant of the corrections to his Disability separation to reflect permanent disability retirement with a 30 percent rating, Retroactively effective the date of his original disability separation. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement, his record of service, his medical conditions, the outcome of disability processing and the reason for his separation. The Board considered the review by the PDBR and the change in the applicant’s discharge from medical separation to medical retirement. The Board found insufficient evidence to show the applicant’s disability was based on injury or disease received in the LOD as a direct result of armed conflict or caused by an instrumentality of war incurred in the LOD during a period of war as defined by law and his disability did not result from a combat-related injury. Based on a preponderance of evidence, the Board determined that the previous LOD and Combat Related determinations related to his disability were not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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, United States 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 26, U.S. Code, section104 (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 3. 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 4. 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. 5. 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) AR20180007579 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1