BOARD DATE: 28 February 2020 DOCKET NUMBER: AR20180010553 APPLICANT REQUESTS: In effect, correction of his separation orders to show combat- related, in lieu of, non-combat related. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 22 May 2012 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), 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 he was recently notified that since his injury in which he was discharged for was a result of airborne operations, and vastly exacerbated during his combat service in Iraq in 2009, where he earned a Combat Infantryman Badge, then it qualifies as combat related. He did not know that there was a difference, but now that he has been informed, he would like it changed to be able to recoup a portion of the taxes that were associated with this to offset the recoupment of the severance pay. The incident and reasons for his injuries are well documented in his Veterans Affairs records. 3. A review of the applicant’s official records show the following on: a. On 24 July 2007, the applicant enlisted in the Indianapolis Army National Guard. b. On 19 May 2009, Orders Number 139-049, issued by Headquarters, 3rd Brigade Combat Team, 82nd Airborne Division, Forward Operating Base Loyalty, Iraq, awarded the applicant the Combat Infantry Badge, by reason of actively engaging or being engaged by the enemy. c. The applicant’s records are void of orders ordering him to Iraq. However, his DD Form 214 shows he served in Iraq from 4 December 2008 – 17 November 2009. Additionally, his record contains an Army Commendation Medal Certificate presented to him for meritorious service in support of Operation Iraqi Freedom from 6 December 2009 to 4 December 2009. d. On 13 February 2012, a Physical Evaluation Board (PEB) convened and found the applicant physically unfit for arm limitation of motion, listed as left shoulder pain due to tendonitis. DA Form 199 (PEB Proceedings) shows the applicant reported previous incidents without seeking any medical care, then in 2010 while stationed in Germany, while moving a couch his shoulder popped and he did receive medical care. Magnetic resonance imaging showed a posterior labral tear. He underwent surgery and had limited range of motion which was unfitting because he could not carry and fire an individual weapon, wear body armor or load bearing equipment for at least 12 hours a day. The PEB recommended a combined rating of 20 percent and his disposition be separation with severance pay of otherwise qualified. The following conditions were not found unfitting: * Left elbow degenerative changes with possible loose bodies * Depression * Right knee pain due to iliotibial band syndrome (resolved) * Mild traumatic brain injury * Plantar fasciitis e. The PEB also recommended on the DA Form 199: * disability did not result from a combat related injury as defined by Title 26 USC, section 104 and for purposes of Title 10 USC, section 10216(G) * disability was not incurred in a combat zone or incurred during the performance of duty in combat-related operations as designated by the Secretary of Defense (National Defense Authorization Act 2008 section 1646) f. On 14 February 2012, the applicant concurred with the PEB and waived a formal hearing of his case. g. On 27 February 2012, Orders Number 058-0016, issued by the Installation Management Command – Europe, Baumholder Transition Center, reassigned the applicant to the transition point for transition processing. These orders state the PEB’s recommendations pertaining to injuries not being a combat related injury or in the performance of duty in combat-related operations. h. On 22 May 2012, the applicant was honorably discharged from active duty by reason of disability, severance pay, non-combat related. DD Form 214, item 18 (Remarks) shows disability severance pay $22,665.00. 4. Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation) paragraph 4-19 (PEB decisions – common criteria), paragraph j(1) states the following rules apply when deciding whether a Soldier is entitled to severance pay: * the disability was incurred while the Soldier was engaged in armed conflict, or in an operation or incident involving armed conflict or the likelihood of armed conflict; * a direct causal relationship exists between the armed conflict or the incident or operation, and the disability * the disability is unfitting, was caused by an instrumentality of war, and was incurred in the line of duty during a period of war as defined by law 5. Title 26 USC, section 104 states disability compensation may be excluded from gross income when the disability pay is awarded by reason of a combat-related injury. Combat related injuries cover those disabilities attributable to the special dangers associated with armed conflict or the preparation or training for armed conflict. 6. Department of Defense Financial Management Regulation (DOD FMR) 7000-14-R states Disability Severance Pay (DSP) is normally taxable income. However, it is not subject to tax withholding if the entitlement resulted from combat-related injury or illness, as determined by the Secretary of the Military Department concerned, which happens as a result of a direct result of armed conflict or by an instrumentality of war. 7. AR 15-185 (ABCMR) states 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. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s request, his record of service to include service in Iraq, disability evaluation system processing, the unfitting condition resulting in his disability separation and the determination of the PEB related to the causes of his disability. The Board found insufficient evidence to support his statement as to the cause of his disabling condition and insufficient reason to change the PEB determination. Based on a preponderance of evidence, the Board determined that the applicant’s disability separation and the PEB determinations 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, USC, 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 ABCMR determines it would be in the interest of justice to do so. 2. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) paragraph 4-19 (PEB decisions – common criteria), paragraph j(1) states the following rules apply when deciding whether a Soldier is entitled to severance pay: * the disability was incurred while the Soldier was engaged in armed conflict, or in an operation or incident involving armed conflict or the likelihood of armed conflict; * a direct causal relationship exists between the armed conflict or the incident or operation, and the disability * the disability is unfitting, was caused by an instrumentality of war, and was incurred in the line of duty during a period of war as defined by law 3. Title 26 USC, section 104 states disability compensation may be excluded from gross income when the disability pay is awarded by reason of a combat-related injury. Combat related injuries cover those disabilities attributable to the special dangers associated with armed conflict or the preparation or training for armed conflict. 4. DODFMR 7000-14-R states DSP is normally taxable income. However, it is not subject to tax withholding if the entitlement resulted from combat-related injury or illness, as determined by the Secretary of the Military Department concerned, which happens as a result of a direct result of armed conflict or by an instrumentality of war. 5. AR 15-185 (ABCMR) states 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) AR20180010553 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1