ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 9 January 2020 DOCKET NUMBER: AR20190007675 APPLICANT REQUESTS: Reconsideration of his previous request for correction of his separation orders to show his disability is based on a direct result of armed conflict or caused by an instrumentality of war and is combat related. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Orders * 2 DD Forms 214 (Certificate of Release or Discharge from Active Duty) * Documents from the Department of Veterans Affairs (VA) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20160000150 on 17 August 2017. 2. The applicant states due to newly received evidence referenced in his VA Decision Letter, which includes a diagnosis of post-traumatic stress disorder, his retirement orders should read his disability is based on injury or disease received in the line of duty as a 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 and his disability resulted from a combat related injury. 3. His medical evaluation board proceedings are not available for review. 4. On 11 November 2014, a physical evaluation board (PEB) found him physically unfit due to right brachial plexus palsy and cervical degenerative disc disease. 5. The disability description section of his DA Form 199 (PEB Proceedings) states right brachial plexus palsy is not a battle injury and did not occur in a combat zone. Onset traced to September 2004 during a road march with full combat gear, with pain and weakness of the right upper extremity. 6. His DA Form 199 also states: a. The Soldier's retirement is not based on disability from injury or disease received in the LOD as a direct result of armed conflict or by an instrumentality of war and incurring in the LOD during a period of war as defined by law. b. The disability did not result from a combat-related injury as defined in Title 26, U.S. Code, section 104. 7. The PEB recommended a 50-percent disability rating and permanent disability retirement. On 16 November 2011, he concurred with the PEB findings and waived a formal hearing. 8. On 18 November 2011, the U.S. Army Physical Disability Agency approved the PEB findings. 9. Headquarters, U.S. Army Garrison, Fort Carson, Orders 325-0014, dated 21 November 2011, permanently retired him effective 26 December 2011 with a 50-percent disability rating. Paragraph 2 of these orders state: a. "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’." b. "Disability resulted from a combat related injury as defined in 26 USC 104 [Title 26, U.S. Code, section 104]: ‘No’." 10. On 26 December 2011, he retired by reason of permanent disability. 11. A letter from the U.S. Army Human Resources Command CRSC Branch, dated 9 March 2015, shows the applicant was awarded combat-related disability for right supraventricular brachial plexus palsy with neuralgia - 40 percent effective 12 January. The justification/comments section states "Documentation supports evidence of injury while simulating war." 12. On 7 March 2017, an advisory opinion was obtained from the Medical Advisor, U.S. Army Physical Disability Agency (USAPDA). The advisory official states: a. The available record indicates the applicant sustained this injury (right supraventricular brachial plexus palsy with neuralgia) while performing a road march with full combat gear and body armor. There is no evidence to support that this condition was sustained under conditions simulating war (e.g., during a war games; tactical exercises or grenade and live fire weapons practice). b. Department of Defense Instruction (DODI) 1332.38 (Physical Disability Evaluation), paragraph E3.P5.2.2.3, the provision in effect at the time the applicant's case was processed, precisely mirrors the current DODI 1332.38. c. There is no requisite evidence to support that the applicant's condition was incurred under conditions simulating war. 13. The advisory opinion was furnished to the applicant for comment. He did not respond. 14. He provides a letter from VA, dated 30 April 2019, which shows his PTSD disability rating for PTSD was increased from 30 to 50 percent. 15. On 31 October 2019, an advisory opinion was obtained from the Legal Advisor, USAPDA. The advisory states, in part, the PEB findings were supported by the preponderance of evidence, were not arbitrary nor capricious, and were not in violation of any statue, directive, or regulation. Due to the foregoing reasons, USAPDA finds the applicant's request to be legally insufficient. The complete advisory is available for the Board's review and consideration. 16. The applicant was provided a copy of the advisory opinion for comment or rebuttal. He did not respond. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief is not warranted. Considering the facts above, the Board found no error in the applicant’s separation orders. The Board also noted that the PEB stated that the “Soldier's retirement is not based on disability from injury or disease received in the LOD as a direct result of armed conflict or by an instrumentality of war and incurring in the LOD during a period of war as defined by law. The disability did not result from a combat-related injury as defined in Title 26, U.S. Code, section 104.” Recent independent review of the applicants medical records by the Medical Advisor, U.S. Army Physical Disability Agency (USAPDA) confirmed this determination ? 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 26, U.S. Code, section 104, states 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 under conditions simulating war, or caused by an instrumentality of war. 2. The U.S. Army Human Resources Command Adjutant General Directorate defines an "instrumentality of war" as a vehicle, vessel, or device (e.g., combat vehicles, weapons, Agent Orange) designated primarily for military service and intended for use in such service at the time of the occurrence or injury. It may include such instrumentalities not designated primarily for military service if use of or occurrence involving such instrumentality subjects the individual to a hazard peculiar to military service. Such use or occurrence differs from the use or occurrence under similar circumstances in civilian pursuits. 3. DODI 1332.38, 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. NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20190007675 4 1