IN THE CASE OF: BOARD DATE: 3 February 2022 DOCKET NUMBER: AR20210009525 APPLICANT REQUESTS: correction of his – * Informal Physical Evaluation Board (PEB) Proceedings to show he was permanently retired due to major depressive disorder (MDD) (combat related) in lieu of MDD (noncombat related) * Standard Form (SF) 600 (Chronological Record of Medical Care), dated 14 August 2014, by removing “Injury & Illness: Not Work Related; Not Battle Related; Category: Injuries, Other Cause: Non-Battle Injury.” APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Orders HO-118-0077, Headquarters III CORPS, Fort Hood, TX * Patient Movement Request * SF 600 (Chronological Record of Medical Care) (6 pages) * Memorandum, Headquarters, Carl Darnall Army Medical Center, subject: NARSUM Addendum - Behavioral Health * Memorandum, Soldiers’ MEB Counsel Office (Region II--Southern Region), Fort Hood, TX, subject: Request for Impartial Medical Review * Informal Physical Evaluation Board (PEB) Proceedings * Memorandum for Retirees, Permanently Retired from the Temporary Disability Retired List (TDRL); subject: Contact Information * DD Forms 214 and 214C (Certificate of Release or Discharge from Active Duty) * Department of Defense (DOD) Regulation 7000.14-R (Financial Management Regulation), Volume 7B, Chapter 63, pertains to Combat Related Special Compensation (CRSC). 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 the record is in error because he was injured while on active duty by an “instrumentality of war, a power generator,” which is the primary reason he was diagnosed with having MDD. Additionally, he states his PEB Proceedings incorrectly state his “disability did not result from a combat-related injury under the provisions of 26 United States Code (USC) 104 or 10 USC 10216.” 3. He provided the following documents: a. Orders HO-118-0077, Headquarters III CORPS, Fort Hood, TX, dated 27 April 2016, showing he was deployed to Kuwait in support of Operation Inherent Resolve with a proceed date of on or about 2 June 2016. b. Patient Movement Request showing he got his right hand caught in a generator pull chain on 2 August 2016 sustaining multiple right hand finger injuries: c. Chronological Records of Medical Care, dated between 14 and 15 August 2016 showing he arrived at Joint Base Andrews, MD, on 14 August 2016, with a destination of Fort Hood, TX. (1) Disposition Evacuation - Injury & Illness: Not Work Related; Not Battle Related; Category: Injuries, Other Cause: Non-Battle Injury. The applicant marked this document to show this is an error. (2) Upon arrival at Joint Base Andrews he reported he was doing well without new complaint/issue during the flight. He received Percocet and Tylenol during flight. d. A Memorandum, Headquarters, Carl Darnall Army Medical Center, subject: NARSUM Addendum - Behavioral Health, dated 27 March 2017, showing he was referred for a Medical Evaluation Board (MEB) on the basis of a diagnosis of an unspecified depressive disorder - he also claimed a concussion and insomnia. The author of the addendum concluded the applicant had MDD incurred in the line of duty that did not meet retention standards. e. Memorandum, Soldiers’ MEB Counsel Office (Region II--Southern Region), Fort Hood, TX, dated 12 April 2017, showing the purpose of this memorandum is to request an impartial medical review (IMR) regarding his MEB findings, approved on 5 February 2016. He was counseled on these findings by his PEB Liaison Officer (PEBLO) on 11 February 2016. f. Informal PEB Proceedings, showing on 26 September 2019, a PEB convened and found the applicant physically unfit and recommended a rating of 100% for MDD and that the disposition be permanent disability retirement. The PEB determined the disability disposition is not based on disease or injury incurred in the line of duty in combat with an enemy of the United States 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. The PEB also determined the disability did not result from a combat-related injury under the provisions of 26 USC 104 or 10 USC 10216 (on the copy provided to this Board, the applicant annotated this statement as being an error). g. On 8 October 2019, the applicant concurred with the PEB findings and waived a formal hearing of his case. h. Department of Defense Regulation 7000.14-R (Financial Management Regulation), Volume 7B, Chapter 63, pertaining to CRSC, dated November 2019. 4. Orders 251-0149, Headquarters III Corps, Fort Hood, TX, show the applicant was released from assignment and duty because of a physical disability incurred while entitled to basic pay and under conditions that permit his placement on the TDRL. His effective date of retirement was 27 September 2017 and he was placed on the retirement list on 28 September 2017 with a 50 percent disability rating. The orders state his disability was not based on an 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 and his disability did not result from a combat related injury as defined in in 26 USC 104. 5. On 27 September 2017, he was retired under the provisions of chapter 4, AR 635- 40. 6. Army Regulation 635-40 defines instrumentality of war as a device designed primarily for military service and intended for use in such service at the time of the occurrence of the injury. It may also be a device not designed primarily for military service if use of or occurrence involving such a device subjects the individual to a hazard peculiar to military service. This use or occurrence differs from the use or occurrence under similar circumstances in civilian pursuits. There must be a direct causal relationship between the use of the instrumentality of war and the disability must be incurred incident to a hazard or risk of the service. The PEB makes the final determination as to whether an injury was caused by an instrumentality of war based on the preponderance of evidence submitted. 7. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. A review of the Armed Forces Health Longitudinal Technology Application (AHLTA), Federal Electronic Health Record (FEHR) & Health Artifacts Image Solutions (HAIMS) indicates the applicant was injured while repairing a power generator and his hand was caught in a generator pull cable in Kuwait. On 26 September 2019, the PEB determined he was unfit due to MDD with a rating of 100%. The PEB determined the disability did not result from a combat-related injury. The applicant concurred with the PEB findings and waived a formal hearing of his case on 8 October 2019. The applicant’s injury that led to his MDD occurred while engaged in his MOS (generator mechanic) duties and not while engaged in armed conflict. He was in an area of operations (Kuwait) that was not an area of armed conflict. The findings of the PEB are accurate and no change is warranted. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found relief is not warranted. 2. The Board concurred with the conclusion of the ARBA Medical Advisor that the applicant's MDD is not combat-related. The Board found that a power generator does not meet the definition of instrumentality of war and determined the PEB's finding was not in error or unjust. 3. The Board found insufficient evidence to support a recommendation to change entries on the SF 600 dated 14 August 2014. After reviewing all available evidence, the Board found no indication that the entries in question are incorrect. The Board determined the entries in question are not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XX :XX :XX 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 three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 40-501 (Standards of Medical Fitness) provides information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures. Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement), provides a listing of all medical conditions and specific causes for referral to an MEB. It states: a. The various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for all enlisted Soldiers of the Active Army, Army Reserve National Guard, and U.S. Army Reserve. The medical conditions and physical defects, individually or in combination, are those, that: (1) Significantly limit or interfere with the Soldier's performance of their duties. (2) May compromise or aggravate the Soldier's health or well-being if they were to remain in the military Service. This may involve dependence on certain medications, appliances, severe dietary restrictions, or frequent special treatments, or a requirement for frequent clinical monitoring. (3) May compromise the health or well-being of other Soldiers. (4) May prejudice the best interests of the Government if the individual were to remain in the military Service. b. Soldiers with conditions listed in chapter 3, who do not meet the required medical standards will be evaluated by an MEB. Possession of one or more of the conditions listed in this chapter does not mean automatic retirement or separation from service. Physicians are responsible for referring Soldiers with conditions listed in chapter 3 to an MEB. 3. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the PDES according to the provisions of Title 10, U.S. Code, chapter 61, Retirement or Separation for Physical Disability, and Department of Defense Directive 1332.18. It states: a. The mere presence of an impairment does not, itself, justify a finding of unfitness because of physical disability. In each case it is necessary to compare the nature and degree of physical disability present the requirements of the duties the Soldier reasonably may be expected to perform because of tier office, grade, rank or rating. To ensure all solders are physically qualified to perform their duties in a reasonable manner, medical retention qualification standards have been established in Army Regulation 40-501. These guidelines are used to refer Soldier to an MEB. b. Disability compensation is not an entitlement acquired by reason of service- incurred illness or injury; rather it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. c. When a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement, creates a presumption that the Soldier is fit. An enlisted soldier who reenlistment has not been approved before the end of his or her current enlistment, is not processing for separation; therefore this rule does not apply. The presumption of fitness may be overcome if the evidence establishes that: (1) The Soldier was, in fact, physically unable to perform adequately the duties of his or her office, grade, rank or rating for a period of time because of disability. There must be a causative relationship between the less than adequate duty performance and the unfitting medical condition or conditions. (2) An acute, grave illness or injury or other significant deterioration of the Soldier's physical conditions occurred immediately prior to, or coincident with processing for separation or retirement for reasons other than physical disability and which rendered the Soldier unfit for further duty. d. The fact that a Soldier has a condition listed in the Department of Veterans Affairs schedule for Rating Disabilities (VASRD) does not equate to finding of physical unfitness. An unfitting, or ratable condition, is one which renders the Solder unable to perform the duties of their office, grade, rank, or rating, in such a way as to reasonably fulfill the purpose of their employment on active duty. e. Provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him/her and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a MEB. Those members who do not meet medical retention standards will be referred to a PEB for a determination of whether they are able to perform the duties of their grade and MOS with the medically-disqualifying condition. The PEB evaluates all cases of physical disability equitably for the Soldier and the Army. The PEB investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board. Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability. 4. Title 10, U.S. Code, chapter 61, provides for the retirement and discharge of members of the Armed Forces who incur a physical disability in the line of duty while serving on active or inactive duty. However, the disability must have been the proximate result of performing military duty. It further provides for disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade, or rating because of disability incurred while entitled to basic pay. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210009525 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1