IN THE CASE OF: BOARD DATE: 22 August 2022 DOCKET NUMBER: AR20210009879 APPLICANT REQUESTS: correction of his DA Form 199-1 (Formal Physical Evaluation Board Proceedings), 15 July 2014 to show his disabilities of: (1) Cervical Spine, degenerative disc disease, and (2) Left Shoulder Impingent Syndrome, are combat-related (caused by an instrumentality of war). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * NGB Form 22 (Report of Separation and Record of Service), 28 August 2014 * Line of Duty (LOD) Determination and Approval, 12 June 2013 * DA Form 2173 (Statement of Medical Examination and Duty Status), 4 June 2013 * Active Duty Orders, 9 January 2004 * Disability Retirement Orders, 25 July 2014 * DA Form 199-1 (Formal PEB Proceedings), 15 July 2014 * Combat Related Special Compensation (CRSC) Approval, 27 December 2016 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 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: He participated in a PEB hearing on 15 July 2014 which resulted in his permanent disability retirement on 29 August 2014. He subsequently got approved for CRSC on 27 December 2016 for the same conditions that resulted in his retirement. In looking at his DA Form 199-1 and retirement orders (Order D 206-09), he noticed the following lines: Disability is based on injury or disease received in LOD (Line of Duty) as a direct result of Armed Conflict or caused by an instrumentality of war and incurred in the LOD during a war period as defined by law: NO (This should be YES)...Disability resulted from a combat related injury as defined in 26 USC 104: NO (This should be YES)..The DA Form 199-1, Section V states: 1. 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 (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.). 3. The disability did not result from a combat related injury under the provisions of 26 USC 104 or 10 USC 10216. DA199-1 should state my disability incurred in the line of duty during a period of war and was caused by an instrumentality of war. a. He believes the CRSC decision for the same conditions listed in the DA Form 199-1 show that those disabilities meet the requirements for the caused by an instrumentality of war condition in 26 USC 104. He has attached his CRSC Decision Letter for reference. He is requesting consideration for an amendment to Section V the DA Form 199-1 and his retirement order to show the disabling conditions meet the requirements of a combat related injury as defined in 26 USC 104 subsection (b)(3)(B) and was incurred in the line of duty during a period of war. His previous application was submitted on 24 April 2017 and closed after a misunderstanding regarding the reason for correction. b. The assumption that he wanted a CRSC decision reversed caused the application to be closed and he was referred to the department that manages CRSC. However, he does not want a CRSC decision changed as he is already receiving CRSC for combat related injuries. Attempts to reverse the decision to close the application were denied, however, he secured a memorandum from COL from the Casualty and Mortuary Affairs Operations Division. She stated ARBA rejected his case because they believed he did not exhaust his appeals through HRC. However, since he is retired, HRC cannot make changes to his retirement orders. 3. Review of the applicant’s service records shows: a. He served in the Army National Guard (ARNG), through multiple enlistment/extensions or reenlistment, from 18 November 1989 to 28 August 2014, holding military occupational specialty 19D (Cavalry Scout). b. He was mobilized and served on active duty from: * January to October 2000, served in Bosnia for 8 months and 11 days * January 2004 to March 2005, served in Iraq from 8 March 2004 to 4 February 2005 * August 2008 to October 2009; served in Kuwait/Iraq from 8 November 2008 to 12 August 2009). c. A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 23 June 2005, shows on or about 8 December 2004, on a route to Baghdad, he was involved in a roll-over accident. Rainy morning and the roads were wet with soft shoulders. Driver swerved of the road to avoid head-on collision with a larger truck and lost control. M-114 rolled over into roof. Soldier received injures to left lower back and neck. Soldier was taken to TMC at Camp Ashraf them to LSA Anaconda for observation d. On 1 March 2005, the State ARNG approved his incident and determined it was in line of duty. e. A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 4 June 2013, shows he reported moderate discomfort to right shoulder, and claimed a history of rotator cuff injury 2 years earlier. f. On 21 May 2013, the National Guard Bureau determined/approved his C3-C4, and C-4-C-5 Cervical Stenosis and Left Shoulder Rotator Cuff Strain that occurred during Operation Iraqi Freedom, were in Line of Duty. g. On 15 July 2014, a formal PEB convened and found his medical conditions were unfitting. The DA Form 199-1 shows: (1) Cervical Spine, Degenerative Joint Disease, with Spondylosis, Status Post Operative, PEB referred as: Status Post Cervical Fusion; Residuals of Neck Surgery (MEB Dx 1). Condition onset following vehicle rollover in Iraq in 2004. Reasonable performance requires that Soldier perform all DA Form 3349, block 5 functional activities. Soldier is unfit, because profile restrictions associated with this condition prevent Soldier from being able to carry and fire individual weapon. In accordance with DoDI 1332.38, E3.P3.4.1.1. (Narrative Summary, DA Form 3349, DA Form 7652, DA Form 3947, VA C&P Exam, and DVA Proposed Rating Decision); Rated at 20%. (2) Left shoulder impingement syndrome (MEB Dx 3). Condition onset following vehicle rollover in Iraq in 2004. Reasonable performance requires that Soldier perform all DA Form 3349, block 5 functional activities. Soldier is unfit, because profile restrictions associated with this condition prevent Soldier from being able to carry and fire individual weapon. IAW DoDI 1332.38, E3.P3.4.1.1. (Formal Proceedings, NARSUM, DA Form 3349, DA Form 7652, DA Form 3947, VA C&P Exam, and DVA Proposed Rating Decision) (3) This case was adjudicated as part of the Integrated Disability Evaluation System (IDES) under the 19 December 2011 Policy and Procedure Directive-type Memorandum (DTM) 11-015. The specific VASRD codes to describe the Soldier’s condition and the disability percentage was determined by the DVA and is documented in DVA memorandum dated 26 March 2014. The disposition recommendation was determined by the PEB based on the DVA disability rating proposed and applicable statutes and regulations for the Physical Disability Evaluation System (PDES). (4) At the formal board on 15 July 2014, [Applicant] requested that the PEB find his left shoulder condition unfitting. The SM was represented by Major [Name of Counsel], Office of Soldiers’ PEB Counsel. The Soldier testified that he injured his shoulder in a vehicle rollover accident while deployed to Iraq in 2004, and subsequently underwent SLAP repair surgery in 2006. He stated that the shoulder and arm continue to go numb during prolonged use, preventing him from being able to carry and fire his weapon. He reported that it continues to fail conservative treatment. Based upon a review of the medical records, the Soldier’s testimony, and a memorandum from the Commander, the PEB determined that the SM’s shoulder condition is unfitting and adopts the DVA 10% disability rating. The PEB recommends that 1SG be permanently retired from military service with a combined disability rating of 30%, and his disposition as permanent disability retirement. (5) Section V (Administrative Determination) reads: (a) 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 (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.) (b) Evidence of record reflects the Soldier was not a member or obligated to become a member of an armed force or Reserve thereof, or the NOAA or the USPHS on 24 September 1975. (c) The disability did not result from a combat-related injury under the provisions of 26 USC 104 or 10 USC 10216. (6) The applicant was counseled. He concurred with the formal PEB’s findings and recommendations and elected not to request reconsideration of his VA rating. Accordingly, on 25 July 2014, the U.S. Army Physical Disability Agency (USAPDA) published Orders 206-09 permanently retiring him due to disability effective 29 August 2014, in the grade of E-8. The orders read: * Disability is based on injury or disease received in LOD as a direct result of Armed Conflict or caused by an instrumentality of war and incurred in the LOD during a war period as defined by law: NO * Member of an armed force on 24 Sep 75: NO * Disability resulted from a combat related injury as defined in 26 USC 104: NO i. On 27 December 2016, the Army awarded him CRSC * Cervical Spine, Degenerative Joint Disease, with Spondylosis, Status Postoperative Documentation verifies disability as combat-related due to an Instrumentality of War * Degenerative Joint Disease, Lumbar Spine (5010-5242): Documentation verifies disability as combat-related due to an Instrumentality of War * Right Ear Disability Documentation verifies disability as combat-related due to an Instrumentality of War * Adjustment Disorder and Depression Secondary to Chronic Pain; This condition is granted due to your combat award * Scar, SIP Left Shoulder Surgery; Documentation confirms condition as secondary to 5203 * Scar, Status Post C4-5 Discectomy and Decompression; Documentation confirms condition as secondary to 5242, * Left Shoulder Impingement Syndrome; Documentation verifies disability as combat-related due to an Instrumentality of War * Left Shoulder Impingement Syndrome; Documentation verifies disability as combat-related due to an Instrumentality of War * Left Shoulder Impingement Syndrome; Documentation verifies disability as combat-related due to an Instrumentality of War BOARD DISCUSSION: After reviewing the application and all supporting documents, and the evidence found within the military record, the Board found that relief was/was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. Based upon the available documentation and the findings of the medical advisor, the Board concluded there was sufficient evidence to show that the applicant’s injury was an instrumentality of war, and thus the requested relief should be granted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of Army records of the individual concerned be corrected by amending the applicant’s DA Form 199-1 (Formal Physical Evaluation Board Proceedings), 15 July 2014 to show his disabilities of: (1) Cervical Spine, degenerative disc disease, and (2) Left Shoulder Impingent Syndrome, are combat-related (caused by an instrumentality of war). 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 ABCMR determines it would be in the interest of justice to do so. 2. 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. a. Physical disability evaluation will include a decision and supporting documentation regarding whether the injury or disease that makes the Soldier unfit or that contributes to unfitness was incurred in combat with an enemy of the United States, was the result of armed conflict, or was caused by an instrumentality of war during a period of war. b. Required determinations for Section 8332 Title 5 United States Code. The Soldier’s retired pay is awarded based on service-connected disability— (1) Incurred in combat with an enemy of the United States; (2) Caused by an instrumentality of war and incurred in LOD during a period of war as defined by 38 USC 101. c. Combat related. This standard 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. . (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) AR20210009879 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1