ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 2 July 2019 DOCKET NUMBER: AR20180014638 APPLICANT REQUESTS: correction of his DD Form 199 (Informal Physical Evaluation Board (PEB) Proceedings) to show his lumbar degenerative disc disease with radiculitis is combat related. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 199-1 (Formal Physical Evaluation Board (PEB) Proceedings) * 2 letters of support * 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, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records 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 disagrees with the finding that his lumbar degenerative disc disease with radiculitis was not caused by an instrumentality of war. Since his hearing he has been able to track down and get sworn statements from his driver and medic. Their statements directly show a correlation of the events and their first hand eye witness accounts of the incident in question. 3. On 29 September 2014, a formal PEB found the applicant physically unfit due to lumbar degenerative disc disease with radiculitis and recommended a rating of 40 percent and that he be permanently retired due to disability. It was determined the applicant’s disability is not based on disease or injury incurred in the line of duty in combat with an enemy of the U.S. 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. 4. On 3 October 2014, after being advised of the formal PEB and receiving a full explanation of the results of the findings and recommendations and legal rights, the applicant did not concur and indicated he did not attach a written appeal. He acknowledged that failure to submit a written appeal may result in final processing of his case without review by the U.S. Army Physical Disability Agency (USAPDA). He did not request reconsideration of VA rating. 5. The applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was retired due to permanent disability on 28 January 2015. 6. The applicant provides the following: a. A written statement, dated 1 December 2014, from A.C. who states, in effect, around August 2009, they were completing a mission when the applicant climbed on top of the MRAP to clear the M240B. The applicant lifted the feed tray and lost his footing and fell approximately 8 feet, hitting his head and knees on the truck and ground. The applicant seemed to have gotten knocked out for a short time. The medic immediately rendered care. The applicant complained of back and knee pain constantly throughout the rest of their tour and was placed on bed rest a few times during the remaining months. b. A written statement, dated 1 December 2014, from A.S. who states, in effect, the applicant was injured around the middle of August 2009, while clearing a M240B before re-entering the wire. The applicant was lifting the feeding tray when his feet slipped from under him. His knees hit the truck and he fell to the ground. The applicant hit his head on the side of the truck before he struck the ground. He was immediately transported to the Aid Station. The attending physician assistant stated it looked like a possible lumbar strain but did not have radiological capabilities at that site. The applicant was put on 24 hour bed rest and given a toradol shot for pain control. Over the next few months the applicant continued to complain of headaches, knee, and severe lower back pain. 7. On 29 April 2019, USPDA, legal advisor provided an advisory opinion. The USPDA legal advisor found insufficient evidence to support the applicant’s request to award a combat-related administrative determination. The applicant’s request is legally insufficient. A copy of the complete USPDA advisory was provided to the Board for their review and consideration. 8. On 30 April 2019, the applicant was provided a copy of the USPDA advisory for comment or rebuttal. He did not respond. 9. Title 26, U.S. Code, section 104, states the term "combat-related injury" means personal injury or sickness that is incurred as 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. BOARD DISCUSSION: After review of the application and all evidence, including the Physical Disability Agency (PDA) advisory opinion, the Board determined there is insufficient evidence to grant relief. The Board agreed with the PDA advisory opinion and found no error or injustice in the determination by the formal Physical Evaluation Board and the subsequent findings by the United States Army PDA in the applicant’s appeal. According to the DoD Financial Management Regulation, Vol 7B, Chapter 630204, and Title 26, U.S. Code, section 104, 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 Mine-Resistant Ambush Protected (MRAP) vehicle was an instrumentality of war that caused his injury is not supported as the vehicle was stationary and was under no direct enemy threat when the applicant mounted the vehicle to perform maintenance on the vehicle’s weapon system and fell off the vehicle and injured his back. The Board agreed that the proximate cause of the applicant’s injury to his back was/is attributed to his simple negligence and not the intrinsic qualities of the vehicle. Therefore, the Board found no basis on which to grant relief to correct the applicant’s DD Form 199 (Informal Physical Evaluation Board (PEB) Proceedings) as the Board found his lumbar degenerative disc disease with radiculitis is not combat related. ? 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Title 10, USC, 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 Army Board for Correction of Military Records (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. Title 26, U.S. Code, section 104, states the term "combat-related injury" means personal injury or sickness that is incurred as 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. 3. 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. Chapter 5-25(d) states combat related standards 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 following armed conflict. See paragraph 5–24f. (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) Under conditions simulating war. In general, this 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 (combatives 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. (4) 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). //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180014638 4 1