IN THE CASE OF: BOARD DATE: 8 February 2022 DOCKET NUMBER: AR20210009830 APPLICANT REQUESTS: a. Correction of Orders D319-21, issued by the U.S. Army Physical Disability Agency (USAPDA), on 15 November 2018, to show his disabilities were 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 were the result of combat-related injuries. b. Correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) as follows: (1) Amend Item 12b (Record of Service – Separation Date This Period) to show his separation date as 15 November 2018; and (2) Amend Item 28 (Narrative Reason for Separation) to show he was separated by reason of "Disability, Permanent" instead of "Disability, Temporary (Enhanced)." APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 18 September 2020 * Physical Disability Information Report, dated 14 December 2016 * DD Form 214, for the period ending 14 March 2017 * Orders D319-21, issued by the USAPDA on 15 November 2018 * Certificate of Retirement, dated 16 November 2018 FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, U.S. 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: a. The Physical Disability Information Report indicates his disabilities were shown to have been 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 his injury or disease was incurred in the line of duty during a period of war as defined by law, and were the result of a combat-related injury. However, his retirement orders indicate that they were not. b. His DD Form 214 should reflect his retirement date as 15 November 2018 and his narrative reason for separation should have the term "temporary" removed and be replaced with his current status of "permanent." c. The DD Form 214 was done while he was pending disposition of his medical evaluation processing and wasn't finalized on 15 November 2018, with the issuance of his retirement orders. 3. The applicant enlisted in the Regular Army on 14 March 2004. 4. The applicant served in Afghanistan from 20 January 2007 through 24 January 2008; and from 7 May 2012 through 17 February 2013. He served in Iraq from 18 November 2009 through 11 July 2010. 5. The applicant acknowledged, on 14 March 2016, he had been counseled on being medically separated and his election of a separation date. 6. The applicant's immediate commander prepared a Physical Disability Evaluation System (PDES) Commander's Performance and Functional Statement on 25 August 2019. It was stated that the applicant could complete a task; however, he takes a longer time to complete them due to pain. 7. A Department of Veterans Affairs (VA) Compensation and Pension Exam was conducted on 14 September 2016. The record contains an incomplete copy of this examination. The attending physician reported that the applicant's service medical records show he was screened for post-traumatic stress disorder (PTSD) and traumatic brain injury (TBI) on 26 April 2016 and per the psychologist "based on available information it does not appear that further comprehensive evaluation is necessary." "SM denied any persisting negative impact from events during deployment." It was noted that prior to this, the SM had four months of counseling and medication for diagnosis of PTSD. 8. An Integrated Disability Evaluation System (IDES) Narrative Summary (NARSUM), dated 28 September 2016, records the medical review of 20 conditions, of which two were found to be medically unacceptable: left shoulder chronic sprain with impingement and PTSD. Subsequent to the date of this statement, the applicant was diagnosed with an adjustment disorder and later PTSD. 9. The applicant was afforded a medical evaluation board (MEB) on 30 September 2016 for 20 conditions, of which the evaluation determined that only the applicant's PTSD and left shoulder conditions were medically unacceptable/did not meet retention standards. 10. The Physical Evaluation Board (PEB), conducted on 3 November 2016, requested the Department of Veterans Affairs (VA) provide a disability rating for the applicant's PTSD and left chronic shoulder sprain with impingement, status post subacromial decompression, distal clavicle excision with residual pain. 11. A DA Form 199 (Informal PEB Proceedings), dated 21 November 2016, found the applicant physically unfit and recommended a rating of 60%, placement on the Temporary Retired List (TDRL) and to be reexamined in August 2017. The conditions that were found unfitting were PTSD and chronic left should sprain with impingement. The reason the PEB disposition is placement on the TDRL, in accordance with DODI 1332.18, Enc. 3, App. 4, para. I.a., because at least one unfitting compensable condition is unstable. He would retain the rating for each unfitting, stable. On TDRL re- evaluation, the PEB will re-rate only the unfitting, unstable conditions. 12. A Physical Disability Information Report, dated 14 December 2016 states: 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: "YES" b. Disability resulted from a combat related injury as defined in Title 26 United States Code (USC), Section 104: "YES" c. Disability was incurred in a combat zone or incurred during the performance of duty in combat-related operations as designated by the Secretary of Defense (National Defense Authorization Act 2008, Section 1646): "N/A" 13. Orders 364-0606, issued by the 101st Airborne Division (Air Assault) and Fort Campbell, KY on 29 December 2016, released to applicant from active duty effective 14 March 2017, due to physical disability, and placed him on the TDRL effective 15 March 2017. The orders include the following statements: 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: "YES" b. Disability resulted from a combat related injury as defined in Title 26 United States Code (USC), Section 104: "YES" 14. The applicant was medically retired on 14 March 2017, under the provisions of Army Regulation 635-200, Chapter 4. The DD Form 214 shows his narrative reason for separation as "Disability, Temporary (Enhanced)." 15. The VA, on 21 November 2017, afforded the applicant disability evaluations for the following conditions: PTSD; sleep apnea; migraines; bilateral shoulder impingement; degenerative disc disease at L5-S1; bilateral knee pain syndrome; bilateral tinnitus; right ankle lateral collateral ligament sprain; erectile dysfunction; scaring of forehead, left shoulder, and right shoulder, Pseudofolliculitis Barbae. He was denied service connection for 19 additional conditions including TBI. 16. An Informal TDRL PEB Proceedings, dated 19 October 2018, found the applicant unfit, recommended an 80% disability evaluation and that his disposition be "Permanent Disability Retirement." The TDRL PEB noted that: * The disability disposition is 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 (5 USC 8332, 3502, and 6303). (This determination is made for all compensable cases but pertains to potential benefits for disability retirees employed under Federal Civil Service.) * The disability did result from a combat-related injury under the provisions of 26 USC 104 or 10 USC 10216. 17. Orders D319-21, issued by the USAPDA on 15 November 2018, removed the applicant from the TDRL and permanently retired him, effective 15 November 2018. The orders also 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 Title 26 USC, Section 104: "NO" 18. The applicant applied for Combat-Related Special Compensation (CRSC). The Army Human Resources Command, on 26 February 2018, verified that the applicant's PTSD and tinnitus were combat-related. In the notification to the applicant they stated they were unable to verify that his sleep apnea, migraines, degenerative disc disease at L5-S1, and erectile dysfunction were combat-related. 19. The applicant was medically retired on 14 March 2017 and placed on the TDRL. He was reevaluated in 2018 and removed from the TDRL with placement on the permanent disability list effective 15 November 2018. The DD Form 214 is a summary of a Soldier's period of continuous active duty. Time spent on the TDRL is not active duty. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was partially warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. a. Board members noted that when the applicant's PEB convened on 14 December 2016, it noted that the applicant's 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 and resulted from a combat related injury as defined in Title 26 United States Code (USC), Section 104. Likewise, his retirement orders listed a similar listing. Furthermore, his TDRL PEB also noted the same. Board members believe an error was committed when the USAPDA published Orders D319-21, on 15 November 2018, removing him from the TDRL and permanently retired him, effective 15 November 2018, and erroneously indicating "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": and "Disability resulted from a combat related injury as defined in Title 26 USC, Section 104: "NO." This should be corrected. b. Board members also considered his request to amend his DD Form 214 to show his separation date as 15 November 2018; and that his Disability, was Permanent instead of Temporary. Board members noted that when the PEB considered his condition(s) in 2016, his conditions were not stable enough for final adjudication. At least one unfitting compensable condition was unstable. That is why he was not permanently retired in 2016. Between 2016 and 2018, he was retired; he was not on active duty. When his conditions were stable enough for final adjudication, the TDRL PEB removed him from the TDRL and permanently retired him in 2018. He cannot get active duty credit from 2016 to 2018 because he was not on active duty during this period. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF XX: XX: XX: GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending Orders D319-21, issued by the USAPDA on 15 November 2018, as follows: * 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: "YES" * Disability resulted from a combat related injury as defined in Title 26 USC, Section 104: "YES" 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to: * Amending Item 12b (Record of Service – Separation Date This Period) to show his separation date as 15 November 2018 * Amending Item 28 (Narrative Reason for Separation) to show he was separated by reason of "Disability, Permanent" vice "Disability, Temporary (Enhanced)." 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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army. It establishes standardized policy for preparing and distributing the DD Form 214 and states: a. The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge. b. A DD Form 214 is issued to active Army Soldiers on termination of active duty by reason of administrative separation (including separation by reason of retirement or expiration term of service (ETS)), physical disability separation, or punitive discharge under the Uniform Code of Military Justice. c. A DD Form 214 will not be prepared for Soldiers removed from the TDRL. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont.) AR20210009830 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont.) AR20210009830 1 ABCMR Record of Proceedings (cont.) AR20210009830 1