IN THE CASE OF: BOARD DATE: 22 August 2022 DOCKET NUMBER: AR20220003662 APPLICANT REQUESTS: in effect, correction of Section V: Administrative Determinations of his DA Form 199 (Informal Physical Evaluation (IPEB) Proceedings) to show his disability did result from a combat-related injury under the provisions of 26 U.S. Code (USC) 104 or 10 USC 10216. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 199 * Letter, U.S. Army Human Resources Command (AHRC), 22 December 2020 * Department of Veterans Affairs (VA) Rating Decision, 8 February 2021 * Photograph * 3-page Article FACTS: 1. The applicant claims his IPEB states his post-traumatic stress disorder (PTSD) was not combat related. At the time of his medical discharge, an error was made by the VA; however, they subsequently corrected the error to state his PTSD is in fact combat related. 2. The applicant enlisted in the Army National Guard of South Carolina on 11 May 2002. Evidence shows he served in Iraq for the periods 25 October 2004 to 17 October 2005 and 1 September 2011 to 31 December 2011. He also served in Kuwait from 1 January 2012 to 18 April 2012. 3. On 5 September 2020, an IPEB convened and considered the applicant's conditions under the provisions of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3. The IPEB found the applicant physically unfit for PTSD and recommended a rating of 70 percent and that his disposition be permanent disability retirement. 4. Section III: Medical Conditions Determined to be Unfitting of his DA Form 199 notes that his PTSD incurred or was aggravated in the line of duty in a duty status authorized by 10 USC 1201(c) or 10 USC 1204. 5. Section V: Administrative Determinations states in: * #1 The disability disposition is not based on disease or injury incurred in the line of duty in combat with an enemy of the U.S. 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. * #3 The disability did not result from a combat-related injury under the provisions of 26 USC 104 or 10 USC 10216. 6. On 11 September 2020, the applicant concurred with the findings of the IPEB and waived a formal hearing of his case. He did not request a reconsideration of his VA ratings. 7. On 20 October 2020, he was placed on the retired list in the rank/grade of Staff Sergeant/E-6 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). His orders note his disability incurred in the line of duty in a combat zone or as the result of performing combat related operations. 8. The applicant provides a/an: a. Letter from the Combat Related Special Compensation (CRSC) Branch, AHRC, dated 22 December 2020, in which it is noted the IPEB stated his PTSD with secondary alcohol use disorder rated at 70 percent is not combat related. The applicant stated he is being denied benefits because he was non-combat related during his medical board, but the VA changed it after they determined they made a mistake. b. VA Rating Decision dated 8 February 2021, in which the VA noted: as requested, they had changed the labeling for his PTSD from non-combat, fear-easing standard to combat, fear-easing standard. After careful review of his service treatment and personnel records, they noted that he was exposed to and witnessed combat and a hostile force in Iraq in support of Operation New Dawn. c. Photograph of a downed helicopter. The applicant notes he saw his friends die that night. d. 3-page article dated 11 December 2004, discussing the first pilots lost by the South Carolina Army National Guard when two helicopters accidentally collided in Mosul, Iraq. 9. Department of Defense Instruction 1332.38. (Physical Disability Evaluation), paragraph E3.P5.2.2 states that 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 circumstances listed below: * As a direct result of armed conflict * While engaged in hazardous service * Under conditions simulating war * Caused by an instrumentality of war BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. Based upon the available documentation and the lack of collaborative medical evidence showing the applicant’s PTSD was combat related, the Board concluded there was insufficient evidence of an error or injustice warranting a correction to the applicant’s record. 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. Army Regulation 635-40 establishes the Army Physical Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. The regulation 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 and the disability must be incurred incident to a hazard or risk of the service. 2. Title 26, USC, section 104 states that for purposes of this subsection, 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, or under conditions simulating war, or which is caused by an instrumentality of war. 3. Department of Defense Instruction 1332.38., paragraph E3.P5.2.2 states that 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 circumstances listed below: * As a direct result of armed conflict * While engaged in hazardous service * Under conditions simulating war * Caused by an instrumentality of war //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220003662 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1