IN THE CASE OF: BOARD DATE: 28 July 2020 DOCKET NUMBER: AR20180009011 APPLICANT REQUESTS: Correction of his retirement orders to show his injury/disability was incurred as a result of a combat-related incident. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * unit temporary change of station orders * Personal Health and Medical History (page 1 of 8) 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 records indicate that his injury was not incurred in the line of duty from an instrumentality of war. In reality, his injury was sustained while deployed in support of Operation Iraqi Freedom (OIF). His retirement orders do not reflect that his traumatic brain injury (TBI) was sustained from an instrumentality of war. He sustained the TBI during his OIF deployment while operating a military watercraft that was carrying wartime supplies. He needs this administrative error corrected in order to take advantage of Department of Veterans Affairs medical benefits specifically designed for veterans injured from an instrumentality of war. 3. The applicant enlisted in the Regular Army on 17 May 2000. His record shows he served in Iraq from 3 August 2007 to 1 August 2008. 4. Orders issued by the U.S. Army Garrison, Fort Monroe, VA, on 30 March 2011, directed the applicant's release from assignment and duty because of physical disability and his placement on the Temporary Disability Retired List effective 27 April 2011. The orders contain the following entries: "Disability is based on injury or disease received in the line of duty 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 as defined by law: No" and "Disability resulted from a combat related injury as defined in Title 26 U.S. Code section 104: No." 5. The applicant's Medical Evaluation Board (MEB) proceedings and/or the Physical Evaluation Board (PEB) proceedings recommending his placement on the TDRL are not available. 6. A DA Form 199 (Informal PEB Proceedings) shows that on 24 November 2014, a PEB reevaluated the applicant's physical disabilities and found him unfit for anxiety disorder and residuals of TBI. The PEB recommended a disability rating of 80 percent and his placement on the Permanent Disability Retired List (PDRL). 7. Section V (Administrative Determinations) of the DA Form 199 shows the PEB 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. 8. On 8 December 2014, the applicant concurred with the PEB's findings and recommendations and waived a formal hearing of his case. 9. Orders issued by the U.S. Army Physical Disability Agency on 19 December 2014, directed the applicant's removal from the TDRL and his placement on the PDRL effective 19 December 2014. The orders contain the following statements: "Disability is based on injury or disease received in the line of duty 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 as defined by law: No" and "Disability resulted from a combat related injury as defined in Title 26 U.S. Code section 104: NO." 10. The applicant provided a Personal Health and Medical History (page 1 of 8) and highlighted his deployment dates. This form does not show the origin of his injuries. 11. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant's records in iPERMS, the Armed Forces Health Longitudinal Technology Application (AHLTA), Health Artifacts Image Management Solutions (HAIMS) and the VA's Joint Legacy Viewer (JLV) and made the following findings and recommendations: a. The applicant is contending that his TBI is a combat related injury. The 26Aug2008 McDonald Army Health Center note in AHLTA showed the applicant was seen for head pain and was diagnosed with Postconcussion Syndrome. The 14Apr2010 Walter Reed Psychiatry AHLTA note provided the following details: While serving on the Army landing craft in the Gulf, he fell backwards while carrying cables up the stairways and struck the back of his head on the bottom step. b. On 24Nov2014, the informal PEB convened for final disposition of the applicant, and found the TBI condition continued to be unfitting and recommended permanent disability retirement. The PEB determined the TBI condition was not based on injury incurred as a direct result of combat, nor was the injury combat related, however, it was incurred in a combat zone. The TBI condition did not meet retention standards IAW AR 40-501. BOARD DISCUSSION: After review of the application and all evidence, including the applicant’s statements, supporting documents and ARBA Medical Advisory opinion, the Board determined there is insufficient evidence to grant relief. The Board found no error or injustice in the applicant’s retirement orders. Per regulation, to be considered combat-related, the proximal cause of the injury must be a direct result of armed conflict; while engaged in extra hazardous service, under conditions simulating war; or which is caused by an instrumentality of war. The applicant’s argument that the Army landing craft in the Gulf was an instrumentality of war that caused his injury is not supported, despite the fact that the accident occurred while the applicant was deployed in a combat zone. The Board agreed that the proximate cause of the applicant’s injury to his head was/is attributed to his simple negligence, tripping on the steps while carrying cables, and not the intrinsic qualities of the Army landing craft. Therefore, the Board found no basis on which to grant relief to correct the applicant’s records as the Board found his head injury does not meet the regulatory conditions for being deemed combat-related. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : 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 thre-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. 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. 5. Army Regulation 15-185 (ABCMR) states in paragraph 2-9 the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180009011 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1