IN THE CASE OF: BOARD DATE: 20 April 2020 DOCKET NUMBER: AR20180012712 APPLICANT REQUESTS: correction to her DD Form 214 (Certificate of Release or Discharge from Active Service) for the period ending 23 March 2011 to show in Line 28 (Narrative Reason for Separation) "Disability, Severance Pay, Combat Related." APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 199 (Physical Evaluation Board (PEB) Proceedings) dated 12 October 2010 * DA Form 199 dated 15 December 2010 * DD Form 214 and DD Form 214C for the period ending 23 March 2011 FACTS: 1. The applicant did not file within the 3 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 the narrative reason for her separation shown on her DD Form 214 in Line 28 is incorrect because her disability is combat related as shown on her DA Form 199 in line 10c which states her disability did result from a combat related injury as defined in Title 26, U.S. Code, section 104. 3. The applicant enlisted in the Regular Army on 9 June 2004. Her military occupational specialty (MOS) was 25B (Information Technology Specialist). She served in Iraq from 25 November 2007 through 5 January 2009. She received the Combat Action Badge for her actions with enemy forces. 4. The applicant’s DD Forms 199 and her separation order are not filed in her personnel record. The Board relied on her copies of her DD Forms 199 that she provided as evidence in support of her application. 5. The applicant’s first PEB was held on 12 October 2010 at Fort Lewis, Washington. Her one unfitting medical condition was degenerative arthritis (right patellofemoral syndrome) traced to an incident in 2005 when a tent pole collapsed. She underwent patellofemoral ligament release in 2007. In 2009 she had patellofemoral reconstruction surgery. She continued to have pain that increased with walking, standing or squatting. This condition was unfitting as she cannot run, jump, hop or move with prescribed personal military equipment. Her condition was stable and it was rated 10 percent for painful motion of a major joint. It is noted on her DA Form 199 that her disability rating was less than 30 percent. Soldiers with a disability rating of less than 30 percent and with less than 20 years of service, as computed under Title 10, U.S. Code, section 1208, are separated from service with disability severance pay. Her DA Form 199 shows in Line 10c (If retired because of disability (emphasis added), the board makes the recommended finding that:) her disability did not result from a combat related injury as defined in Title 26, U.S. Code, section 104. 6. On 15 December 2010 at Fort Lewis, Washington a second PEB convened to reconsider her 12 October 2010 PEB based on new documentation not previously considered. Her one unfitting medical condition remained unchanged. Her diagnosis was degenerative arthritis (right patellofemoral syndrome) traced to an incident in 2005 when a tent pole collapsed. She underwent patellofemoral ligament release in 2007. In 2009 she had patellofemoral reconstruction surgery. The PEB states: On examination Soldier has a right antalgic gait, tenderness to palpation in the peripatellar area and crepitus with passive range of motion. Active flexion ranged from 5 to 100 degrees, with no indication of ligamentous laxity. Unfitting as Soldier cannot run, jump, hop, or ·move with a fighting load. Stable. Rated 10 percent for painful motion of a major joint, with consideration of function loss… It is noted that [her] disability rating is less than 30 percent. Soldiers with a disability rating of less than 30 percent and with less than 20 years of service, as computed under [Title 10, U.S. Code, section 1208] 10 USC 1208 (active plus [Reserve Component] RC equivalent service), are separated from service with disability severance pay. 7. Her 12 October 2010 DA Form 199 was superseded and replaced with her 15 December 2010 DA Form 199. The PEB found her physically unfit with a combined rating of 10 percent and her disposition was separation with severance pay. Her 15 December 2010 DA Form 199 shows in Line 10c (If retired because of disability (emphasis added), the board makes the recommended finding that:) her disability did result from a combat related injury as defined in Title 26, U.S. Code, section 104. 8. On 15 December 2010 after she was counseled by a PEB Liaison Officer (PEBLO), she concurred with the PEB Informal Proceedings of 15 December 2010 and waived a formal hearing of her case. 9. As previously stated, her physical disability separation orders are not filed in her personnel record. Her personnel record does contain her DD Form 214 with DD Form 14C showing she was honorably discharged on 23 March 2011. Her DD Form 214 documents in pertinent part: * Block 12c (Net Active Service This Period) – 6 years, 9 months and 15 days * Block 18 (Remarks) in pertinent part – Block 25: Orders 004-0027 dated 4 January 2011; disability severance pay $36,682.80 * Block 25 (Separation Authority) – Army Regulation 635-40, chapter 4 * Block 28 (Narrative Reason for Separation) – "disability, severance pay, non- combat related" 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. Evidence of record shows the applicant’s injury was traced to an incident in 2005 when a tent pole collapsed, not during her deployment. The Board found there was no evidence her condition resulted from combat. The Board concluded there was insufficient evidence of an error or injustice which would warrant a change to her DD Form 214. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XX :XXX :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 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 10, U.S. Code, section 1203, provides for physical disability separation of a member who has less than 20 years of service and a disability rating less than 30 percent under the standard schedule of rating disabilities in use by the Department of Veterans Affairs at the time of determination. 3. 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 4. 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 5. 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. 6. 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 line of duty (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) AR20180012712 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1