IN THE CASE OF: BOARD DATE: 28 September 2020 DOCKET NUMBER: AR20190015450 APPLICANT REQUESTS: correction of his records 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) * Narrative Summary, page 1 * Commander's Memorandum, dated 19 May 2004 * Department of Veteran Affairs (VA) Decision, pages 3 and 4 * AERO Medical Evacuation Patient Record * Patient Movement Request FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code, section 1552(b); however, the 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, in part, he believes his disability falls under a condition that was exacerbated and permanently altering his health because of being in a combat zone. He did not have health problems before deploying because that would have prevented him from performing his duties. Shortly after arriving in Kuwait/Iraq, he developed a bacterial infection from something in a sand storm. This caused him to have trouble breathing. It did not get better and he went to Camp Wolf medical and was then medevacked out due to conditions in the deployment area causing his prior minor asthma condition to become considerably worse. After getting back to Fort Benning, his condition did not improve and he went from being able to perform his duties to not being able to do so. His condition lead to him being medically retired. 3. The applicant enlisted into the Regular Army on 28 April 1998. 4. The applicant's medical evaluation board (MEB) and informal physical evaluation board (PEB) proceedings are not available for review; however, Orders 209-2236, issued by Headquarters, U.S. Army Infantry Center, dated 27 July 2004, shows the applicant was placed on the temporary disability retired list (TDRL) effective 2 September 2004, with a 30-percent disability rating. 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: No." 5. On 30 August 2007, a PEB found him physically unfit due to asthma, mild persistent. The PEB recommended permanent disability retirement with a 30 percent disability rating. 6. On 6 September 2007, after being advised of the findings and recommendations of the PEB, and having received a full explanation of the results of the findings and recommendations and legal rights pertaining thereto, he concurred and waived a formal hearing of his case. 7. Orders D271-02, issued by U.S. Army Physical Disability Agency, dated 27 September 2007, removed the applicant from TDRL and permanently retired him effective 28 September 2011, with a 30-percent disability rating. 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: Not Applicable." b. "Disability resulted from a combat related injury as defined in 26 USC 104: Not Applicable." 8. Based on the applicant's contention the Army Review Board Agency medical staff provided a medical review for the Board members. See "MEDICAL REVIEW" section. 9. 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. MEDICAL REVIEW: 1. The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: 2. The informal PEB for his TDRL reevaluation convened on 30 August 2007, finding the applicant continued to be unfit for the asthma and rated his disability at 30%. As part of their administrative findings, they determined that his unfitting condition was not combat related: They found no evidence the disability was the direct result of armed combat; was related to the use of combat devices (instrumentalities of war); the result of combat training; incurred while performing extra hazardous service though not engaged in combat; incurred while performing activities or training in preparation for armed conflict in conditions simulating war; or that he was a member of the military on or before 24 September 1975. 3. His combined rating was 30% and the PEB recommend the disposition of permanent retirement for physical disability. Following counseling by his PEB liaison officer (PEBLO), he concurred with these findings on 6 September 2007. There is no evidence the onset of asthma meets any of the criteria outlined above. 4. There is an administrative determination for disabilities incurred in a combat zone or combat zone tax exclusion area. However, this only benefits and therefore is only applied to Soldiers being separated with severance pay. For these Soldiers, this determination, also known as “V4”, eliminates deductions by the VA from VA compensation due to the receipt of disability severance pay; and sets the minimum years of service used for calculating their severance pay at 6 years, benefitting Soldiers with less than six years of time in service. Because the applicant was retired and not separated with severance pay, V4 does not apply. 5. There is no evidence identified supporting the applicant’s claim that his unfitting disability was combat related. It is the opinion of the Agency Medical Advisor that the awarding of a combat related designation is not warranted ? BOARD DISCUSSION: The applicant requested, in effect, correction of his DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings) to show his disability is based on a direct result of armed conflict or caused by an instrumentality of war and is combat related.. The Board carefully considered the applicant’s contentions and supporting documents. The Board found insufficient evidence of a medical disability or condition that would support a change to the rated conditions, disability determinations, disability ratings, and/or combat-relatedness for the discharge in this case. The Board discussed that the earlier PEB found no evidence the disability was the direct result of armed combat; was related to the use of combat devices (instrumentalities of war); the result of combat training; incurred while performing extra hazardous service though not engaged in combat; incurred while performing activities or training in preparation for armed conflict in conditions simulating war; or that he was a member of the military on or before 24 September 1975. The PEB determined that the applicant’s asthma was not combat related. The Board agreed with the PEB findings that the applicant’s asthma was not incurred in the line of duty during a period of war and is not the result of a combat related injury. Therefore, the Board found insufficient evidence to recommend a change in the PEB fitness determination for the contended condition and so no additional disability rating is recommended. 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, United States 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 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. 3. 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. 4. 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 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190015450 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1