IN THE CASE OF: BOARD DATE: 20 January 2023 DOCKET NUMBER: AR20220004990 APPLICANT REQUESTS: * In effect, the revision of the order placing him on the Permanent Disability Retired List (PDRL), so that it shows he incurred his disability during a period of war and as a direct result of armed conflict with an enemy of the United States, or caused by an instrumentality of war * In the alternative, amend the order to state his injury was the direct result of an armed conflict * Award of the Purple Heart * Permission to appear personally before the Board APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * Online DD Form 149 (Application for Correction of Military Record) * Provost Marshal's Office (PMO) Bulletin, titled, "BOLO – Suspicious Events" FACTS: 1. The applicant states he is a 25-year-old Veteran; on 5 April 2019, a physical evaluation board (PEB) determined he was physically unfit for continued military service, due to post-traumatic seizures, and the PEB recommended his placement on the Permanent Disability Retired List (PDRL). On 29 May 2019, the Army medically retired him, and it was the worst day of his life because his life was forever changed. The applicant states he is seeking his requested relief so he will become eligible for Combat-Related Special Compensation (CRSC); his current Department of Veterans Affairs (VA) compensation is not a lot of money, and his injury severely disabled him. a. While stationed as a military policeman on an Army base near south of Seoul, Korea, his PMO issued a BOLO (Be-On-the-Look-Out) bulletin for a Korean National who had been seen outside the main gate pointing a "green-in-color circular object" at vehicles and pretending to shoot. The applicant notes he has provided a copy of the BOLO for the Board's review. b. On the day the applicant's injury, the person in the BOLO breached the main gate, as he had done on several previous occasions, and drove his vehicle onto the base; the applicant participated, as a passenger, in a high-speed police vehicular pursuit. Applicant goes on to explain, "My vehicle was involved in a motor vehicle accident, which resulted in the suspect's car being rendered disabled. As the suspect exited his vehicle and took off on foot, so did my driver. My driver did not properly put our TMP in park, so our vehicle rolled downhill without a driver and picked up speed. We hit a vehicle and a Soldier. In order to stop the vehicle, I dove headfirst into the driver's seat and applied my hand to the hand brake. While doing so, I struck my head. I started to have seizures within a week. My vehicle had about 13 Soldiers in it, and if I did not do what I did, people would have been injured or killed." c. The applicant notes that Section V of his current DA Form 199 (Informal PEB Proceedings) reads, "The disability disposition is not based on disease or injury incurred in the line of duty with an enemy of the United States...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...and was not caused by a combat related injury...as per the provisions of (Title) 26 (Internal Revenue Code) USC (United States Code) 104 (Compensation for Injuries or Sickness), (Title) 10 (Armed Forces) USC 10216 (Military Technicians (Dual Status)), 5 (Government Organization and Employees) USC 8332 (Creditable Service), 5 USC 3502 (Order of Retention), and 5 USC 6303 (Annual Leave; Accrual)." d. In addition, the applicant points out that, per the Department of Defense (DOD) Financial Management Regulation (FMR), "If claimants' injuries are sustained in the performance of duty under conditions Simulating War (exercises, field training), they should be deemed combat-related. In general, disabilities resulting from military combat 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 combat obstacle courses qualify." e. Based on the foregoing, the applicant argues the Board should deem his post- traumatic seizures as having been incurred in the performance of duties simulating war. "An RPG (rocket-propelled grenade) is a combat weapon. RPGs are not designed for civilian use. Further, to the best of my knowledge, [applicant's installation] was participating in a joint training exercise, which required service members to be in a status unofficially known as 'G.O. 1,' which referred to General Order #1...Additionally, frequent training drills were conducted during this training time." f. If the Board is unable to grant his request based on war simulation, the applicant asks the Board to find that his injury directly resulted from armed conflict; he bases this on the fact that his injury happened in South Korea, and South Korea is technically still at war with North Korea. Additionally, the individual identified in the BOLO may have been a North Korean agent, and, at the time of his injuries, North Korea had fired ICBMs (Intercontinental Ballistic Missiles). With regard to the Korean National suspect, the applicant is unsure what happened after the suspect's apprehension because both counterintelligence and CID (U.S. Army Criminal Investigation Command) got involved, and the applicant did not have the required clearance to learn further details. g. The applicant additionally contends that, assuming the suspect was a North Korean agent, the applicant should then qualify for the Purple Heart, as he had a "mild traumatic brain injury or concussive severe enough to cause either loss of consciousness or restriction from full duty due to persistent signs, symptoms, or clinical finding, or impaired brain functions for a period greater than 48 hours from the time of the concussive incident." Following his injury, doctors restricted him from full duty for more than 48 hours, and his injury occurred while he served with friendly foreign forces engaged in an armed conflict against an opposing armed force in which the United States was not a belligerent party. 2. The applicant requests the award of the Purple Heart. a. Army Regulation (AR) 600-8-22 (Military Awards), currently in effect, states, in paragraph 2-8i (3) (b) (Purple Heart), that former Soldiers who believe they should have been awarded the Purple Heart for qualifying wounds or injuries should file an application/written request with the Commander, U.S. Army Human Resources Command (HRC). (1) Along with the written request, the former Soldier should include the following documentation: * Deployment/Assignment orders * Enlisted Record Brief * One-Page Narrative describing the qualifying incident and the conditions under which the former Soldier was injured or wounded * Statements from at least two individuals, other than the former Soldier, who were personally present, observed the incident, and have direct knowledge of the event; alternatively, the former Soldier can submit other official documentation that corroborates the one-page narrative * Casualty Report (if available) * Standard Form (SF) 600 (Medical Record – Chronological Record of Medical Care) * DD Form 214 (Certificate of Release or Discharge from Active Duty) (2) When considering award of the Purple Heart for a mild traumatic brain injury (mTBI) or concussion that did not result in the loss of consciousness, the former Soldier must provide evidence that the diagnosed mTBI/concussion resulted in a disposition of “not fit for full duty” by a medical officer for a period greater than 48 hours, based on persistent signs, symptoms, or findings of functional impairment resulting from the concussive event. The regulation offers a nonexclusive list of examples for medical treatments of mTBI/concussion that would meet the standards of treatment necessary for the award of the Purple Heart; these include: * The former Soldier's referral to a neurologist/neuropsychologist for treatment * Rehabilitation, such as occupational or physical therapy * Restrictions from full duty for a period greater than 48 hours, due to persistent signs, symptoms, or physical finding of impaired brain function (3) Once compiled, the former Soldier should send the written request and all supporting documentation to the following address: Commander, U.S. Army Human Resources Command, ATTN: AHRC-PDP-A, DEPT 480, 1600 Spearhead Division Avenue, Fort Knox, KY 40122-5408. b. AR 15-185 (Army Board of Correction of Military Records (ABCMR)) states in paragraph 2-5 (Administrative Remedies) that the Board will not consider any application until the applicant has exhausted all administrative remedies to correct the alleged error or injustice. There is no evidence the applicant first applied to HRC for the Purple Heart, and HRC denied his request. As such, this portion of the applicant's request will not be further addressed by the Board. 3. The applicant requests to appear personally before the Board. AR 15-185 (ABCMR) states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR. 4. A review of the applicant's service records show: a. On 7 May 2013, the applicant enlisted into the Army National Guard (ARNG) for 8 years; upon completing initial entry training, the Army awarded him military occupational specialty 31B (Military Police). Effective 7 November 2014, the applicant executed an interstate transfer to the Army National Guard (ARNG). b. On 8 May 2017, the ARNG honorably discharged the applicant; his National Guard Bureau Form 22 (Report of Separation and Record of Service) shows he completed 4 years and 2 days of ARNG service. Item 15 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded This Period) lists the Army Reserve Components Achievement Medal, National Defense Service Medal, and Army Service Ribbon. c. On 9 May 2017, the applicant enlisted into the Regular Army for 3 years. Following an immediate transfer to Fort Leonard Wood for reception processing, orders assigned the applicant to a military police company in Korea, and he arrived, on 6 June 2017. At some point prior to April 2018, the applicant incurred an injury that caused his post-traumatic seizures; the applicant's available service record is void of any documentation detailing the surrounding circumstances. d. On 26 April 2018, the applicant completed his tour in Korea, and orders reassigned him to a military police unit at West Point, NY. On 5 May 2018, the applicant's former battalion commander and command sergeant major awarded the applicant a battalion Certificate of Achievement for the applicant's outstanding service while assigned in Korea to the battalion. e. On 28 September 2018, the applicant transferred to a Warrior Transition Unit at Fort Belvoir, VA; on 5 April 2019, an informal PEB determined the applicant was physically unfit for continued service and recommended a disability rating of 80 percent and placement on the PDRL. (1) The PEB reported its findings and recommendations on a DA Form 199 and, in Section V, the PEB stated the following: (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) "The disability did not result from a combat-related injury under the provisions of 26 USC 104 or 10 USC 10216." (2) In Section IX (Soldier's Elections), the applicant indicated he concurred with the PEB's findings and recommendations and waived his right to a formal PEB. He also affirmed he did not wish to request a reconsideration of the VA's disability rating. (3) Section XII (USAPDA (U.S. Army Physical Disability Agency) Authentication for the Secretary of the Army shows that, on 15 April 2019, the results of the applicant's PEB were approved. f. Paragraph 2 of Orders Number 112-0008 dated 22 April 2019 and issued by the U.S. Army Garrison, Fort Belvoir, released the applicant from assignment and duty due to physical disability and directed the applicant's placement on the PDRL. The orders reflect the following additional information: (1) Effective date of retirement is 29 May 2019; placed on the retired list, effective 30 May 2019. (2) The retirement type is permanent disability, and the disability percentage is 80 percent. (3) The order additionally 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: No." (b) "Disability resulted from a combat related injury as defined in 26 USC 104: No." g On 29 May 2019, the Army honorably retired the applicant and transferred him to the U.S. Army Reserve Control Group (Retired). His DD Form 214 shows he completed 2 years and 21 days of net active duty service, and item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) lists the following: * Army Achievement Medal * Army Reserve Component Achievement Medal * National Defense Service Medal * Korea Defense Service Medal * Army Service Ribbon * Overseas Service Ribbon * Marksman Marksmanship Qualification Badge with Pistol Bar * Certificate of Achievement h. On 30 March 2021, the applicant filed a request with HRC for CRSC based on his post-traumatic seizures; on 14 April 2021, HRC verified that the applicant's disabling condition of tinnitus was combat-related but stated the applicant's PEB had stated the post-traumatic seizures was not combat-related. On 6 December 2021, the applicant requested HRC to reconsider its CRSC decision regarding his post-traumatic seizures; on 3 January 2022, HRC again denied the applicant's request, citing the lack of any new medical evidence confirming that a combat-related event caused the applicant's condition. 5. AR 635-40 (Disability Evaluation for Retention, Retirement, or Separation), currently in effect, prescribes policies and procedures for the Army's implementation of the Disability Evaluation System (DES). Federal law defines the DES as a DOD process for evaluating the nature and extent of disabilities affecting members of the Armed Forces; its objectives are to maintain an effective and fit military force, provide benefits for Soldiers whose service was terminated due to a disability incurred in the line of duty, and to provide prompt processing of disabled Soldiers while ensuring the Soldiers' rights and the interests of both the government and Soldiers are protected. a. PEBs determine a Soldier's fitness for continued military service and make certain administrative decisions that can affect his/her benefits; in reaching its determinations, PEBs apply the standard of "preponderance of evidence." (1) PEBs can be either informal or formal. The informal PEB consists of two military or civilian members and makes the Soldier's initial fitness determination. In cases where the Soldier does not concur with the informal PEB's findings and recommendations, he/she can request a formal PEB, during which the Soldier can appear, with counsel, to present matters for the PEB's consideration. (2) One of the informal PEB's administrative decisions is to determine, for the purposes of employment under Federal civil service law, whether the Soldier's unfitting condition was incurred in combat with an enemy of the United States, or the result of armed conflict, or was caused by an instrumentality of war. b. Chapter 5 (Adjudicative Policy for PEB and U.S. Army Physical Disability Agency (USAPDA) Determinations) provides policy guidance for making administrative determinations. (1) Paragraph 5-24 (Determinations for Purposes of Federal Civil Service Employment). 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. These determinations affect a military retiree's eligibility for such benefits as military service being credited toward a civil service retirement, retention in the event of a reduction in force, and military service credit for the accrual of annual leave. (a) Title 5 (Government Organization and Employees), USC, Section 8332 (Creditable Service). If a civil service employee is awarded retired pay based on any period of military service, such credit may only be given if the retired pay was awarded due to a service-connected disability incurred in combat with an enemy of the United States or caused by an instrumentality of war during a period of war. (b) Title 5, USC, Section 3502 (Order of Retention). The Office of Personnel Management will prescribe regulations for the release of its employees in a reduction of force action; when determining which employees should participate in the reduction in force, an employee who is also retired military will be entitled to credit for the length of time in active service during a war. (c) Title 5, USC, Section 6303 (Annual Leave; Accrual). Employees are entitled to annual leave with pay; annual leave accrues, in part, based on the employee's years of service. In determining years of service, the employee is entitled to credit for all service; however, those who are retired military will receive credit for their active military service only if they retired due to a disability that resulted from armed conflict or was caused by an instrumentality of war during a period of war or the retiree's service was performed during a war. (d) Title 10 (Armed Forces), Section 10216 (Military Technicians (Dual Status)). A military technician who is also a Federal civilian employee and subsequently loses his/her dual status due to a combat-related disability may be retained in a non-dual status so long as the combat-related disability does not prevent the Soldier from performing non-dual status functions, and the Soldier is not otherwise determined to be disqualified. (e) Armed Conflict. The fact that a Soldier incurred a medical impairment during a period of war, in an area of armed conflict, or while participating in combat operations is insufficient to support a finding that the disability resulted from armed conflict. There must be a definite causal relationship between the armed conflict and the resulting unfitting condition. Armed conflicts include the following: war, expedition, occupation of an area or territory, battle, skirmish, raid, invasion, rebellion, insurrection, guerilla action, riot, or any other action in which the Soldier was engaged with a hostile or belligerent nation, faction, force, or terrorists. Normally, Soldiers assigned to administrative, supply, or other support duties in a rear area are not considered to be in the area of combat operations, unless the injury actually occurred during an enemy attack in the immediate area. (f) Title 38 (Veterans' Benefits), Section 101 (Definitions) lists the periods of war; for Korea, the period was 27 June 1950 to 31 January 1955. (2) Paragraph 5-25 (Determinations for Federal Tax Benefits). Title 26 (Internal Revenue Code), Section 104 (Compensation for Injuries or Sickness) states a Soldier's disability compensation is excluded from Federal gross income when the retirement was based on a combat-related disability. A physical disability will be considered combat related if it caused the Soldier to be unfit or contributed to unfitness and was incurred under any of the following circumstances: * Direct result of armed conflict (as defined in paragraph 5-24 above) * While the Soldier was engaged in hazardous service, such as aerial flight, parachute duty, demolition duty, experimental stress duty, and/or diving duty * Under conditions simulating war, i.e., war games, practice alerts, tactical exercises, airborne operations, leadership reaction courses, grenade or live-fire weapons practice, bayonet training, hand-to-hand combat training, rappelling, and/or negotiating combat confidence or obstacles courses * Caused by an instrumentality of war, such as a military weapon; accidents involving a military combat vehicle; injury/sickness due to fumes, gases, or explosion of military ordnance; in any case, there must be a direct causal relationship between the instrumentality of war and the disability 6. In addition to AR 635-40's guidance to PEBs, the DOD FMR applies the same definitions of combat-related injuries when determining Combat-Related Special Compensation (CRSC). The FMR states: a. Direct Result of Armed Conflict. (1) To support a combat-related determination, it is not sufficient to only state the fact that a member incurred the disability during a period of war, in an area of armed conflict, or while participating in combat operations. There must be a definite causal relationship between the armed conflict and the resulting disability. (2) Armed conflict includes a war, expedition, occupation of an area or territory, battle, skirmish, raid, invasion, rebellion, insurrection, guerilla action, riot, or any other action in which Service members are engaged with a hostile or belligerent nation, faction, force, or with terrorists. b. While Engaged in Hazardous Service. Hazardous service is service that includes, but is not limited to, aerial flight, parachute duty, demolition duty, experimental stress duty, and diving duty. A finding that a disability is the result of hazardous service requires that the injury or disease be the direct result of actions taken in the performance of such service. c. In the Performance of Duty under Conditions Simulating War. In general, performance of duty under conditions simulating war covers disabilities resulting from military training, such as war games, practice alerts, tactical exercises, airborne operations, leadership reaction courses, grenade and live fire weapon practice, bayonet training, hand-to-hand combat training, repelling, and negotiation of combat confidence and obstacle courses. d. Instrumentality of War. There must be a direct causal relationship between the instrumentality of war and the disability. It is not required that a member’s disability be incurred during an actual period of war. The disability must be incurred incident to a hazard or risk of the service. (1) An instrumentality of war is a vehicle, vessel, or device designed primarily for military service and intended for use in such service at the time of the occurrence or injury. It may also include such instrumentality not designed 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. (2) A determination that a disability is the result of an instrumentality of war may be made if the disability was incurred in 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 materiel. 7. The ABCMR does not grant requests solely to make someone eligible for Veterans' benefits; however, in reaching its determination, the Board can consider the applicant’s petition, his evidence and assertions, and his service record in accordance with the published guidance pertaining to equity and injustice. 8. MEDICAL REVIEW: 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/or the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: a. The applicant is applying to the ABCMR requesting they reverse the United States Army Physical Disability Agency’s and the United States Army Human Resources Command’s (USA HRC) previous determinations that his seizure disorder is non- combat related and therefore not eligible for Combat Related Special Compensation (CRSC). He states: (1) “While stationed at Camp Humphreys, I served as a Military Policeman. On several occasions, there was an individual seen outside of the main gate pointing a green-in-color circular object at vehicles and pretended to shoot at them as they were exiting. The USAG Humphreys and/or USFK Provost Marshall issued a BOLO document, which has been attached for your review. At the time my PEB was adjudicated, this document was not considered by the PEB ... (2) The individual depicted in the BOLO description breached the gate at USAG Humphrey’s on several occasions. On the day of my injury, I was engaged in a high- speed police pursuit with a vehicle that matched the BOLO description. My vehicle was involved in a motor vehicle accident, which resulted in the suspect’s car being rendered disabled. As the suspect exited his vehicle and took off on foot, so did my driver. (3) My driver did not properly put our TMP {transportation motor pool} in park, so our vehicle rolled downhill without a driver and picked up speed. We hit a vehicle and Solider. In order to stop the vehicle, I dove headfirst into the driver’s seat and applied my hand to the handbrake. While doing so, I struck my head. I started to have seizures within a week. My vehicle had about 13 soldiers in it, and if I did not do what I did, people would have been injured or killed.” b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. A DD 214 for the period of service under consideration shows he entered the regular Army on 27 February 2014 and was permanently retired for physical disability on 29 May 2019 under provisions provided in chapter 4 of AR 635–40, Physical Evaluation for Retention, Retirement, or Separation (19 January 2017). It shows his disability(s) was not combat related. c. The applicant’s Physical Evaluation Board (PEB) Proceedings (DA Form 199) dated 4 April 2019 shows the board determined that his post-traumatic seizure disorder was the sole unfitting condition for continued military service. The PEB made the administrative determination the 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. d. On 8 April 2019, after being counseled on the PEB’s findings and recommendation by his PEB liaison officer, the applicant concurred with the PEB, waived his right to a formal hearing, and declined to request a VA reconsideration of his disability rating. e. The onset of his seizure disorder as noted in his medical evaluation board narrative summary: “At primary care manager visit 16 April 2018 SM reported that in January he ‘was trying to stop a moving vehicle from the passenger seat. The vehicle was rolling slowly toward the gate and he dove into the driver’s seat head-first to try to push the brakes. He struck his head at that time and had some minor neck pain but denies LOC, chronic headache following this incident.’” “At TBI {traumatic brain injury} intake 1 Aug 2018 SM reported he was the ‘unrestrained passenger in a van in pursuit of a vehicle who ran through the base gate when his driver exited the vehicle without putting it in park, resulting in the van striking another vehicle and guard rail. He states that he bumped his head but continued in his pursuit of the perpetrator.” f. The applicant states his disability was due to an instrumentality of war and/or the result of armed conflict. g. In his self-authored letter, the applicant states he was involved in a highspeed chase in a TMP vehicle. A TMP provides Non-Tactical Vehicle (NTV) fleet management in support of the Area of Responsibility (AOR). TMPs provide ground transportation support for deployments, redeployment, mobilizations, demobilizations, and installations steady-state operations. h. An instrumentality of war is defined as a vehicle, vessel, or device designed primarily for military service and intended for use in such Service at the time of the occurrence or injury. They may also include such instrumentalities not designed primarily for military service if use of or occurrence involving such instrumentality subjects the individual to a hazard peculiar to military service. As such, the TMP vehicle he was in was not an instrument of war per se, and injury resulting from a high-speed law enforcement chase is not a uniquely military injury or hazard. i. Paragraph 630601 of Department of Defense Financial Management Regulation 7000.14-R Volume 7B Chapter 63 “Combat-Related Special Compensation (CRSC)” defines the basis for determining a disability combat related due to armed conflict. “The disability is a disease or injury incurred in the line of duty as a direct result of armed conflict. To support a combat-related determination, it is not sufficient to only state the fact that a member incurred the disability during a period of war, in an area of armed conflict, or while participating in combat operations. There must be a definite causal relationship between the armed conflict and the resulting disability. Armed conflict includes a war, expedition, occupation of an area or territory, battle, skirmish, raid, invasion, rebellion, insurrection, guerilla action, riot, or any other action in which Service members are engaged with a hostile or belligerent nation, faction, force, or with terrorists.” j. Military police operations in a host-nation do not meet the CRSC required definition of armed conflict. k. The applicant states he may be entitled to a Purple Heart for this injury. The applicant is directed to apply to the USA HRC for determination of eligibility for a Purple Heart. l. It is the opinion of the ARBA Medical Advisor there is insufficient probative evidence upon which to reverse the United States Army Physical Disability Agency’s or the United States Army Human Resources Command’s previous non-combat related determinations for his seizure disorder. BOARD DISCUSSION: 1. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. The request for award of the Purple Hear is premature. a. A PEB found the applicant’s post-traumatic seizure disorder was the sole unfitting condition for continued military service. The PEB made the administrative determination the 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; or that incurred while performing activities or training in preparation for armed conflict in conditions simulating war. The Board agreed with the medical finding that the onset of his seizure disorder as noted in his medical evaluation board narrative summary was that he was trying to stop a moving vehicle from the passenger seat. The vehicle was rolling slowly toward the gate, and he dove into the driver’s seat head-first to try to push the brakes. He struck his head at that time and had some minor neck pain with chronic headache following this incident. b. Combat-related disability is defined as a disability that was incurred as a direct result of armed conflict, through an instrumentality of war, while engaged in hazardous service, or in the performance of duty under conditions simulating war. The Board thoroughly reviewed the records and the medical reviewer’s finding. The Board agreed with the medical official’s finding insufficient probative evidence upon which to reverse HRC’s previous non-combat related determinations for his seizure disorder. 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. AR 635-40 (Disability Evaluation for Retention, Retirement, or Separation), currently in effect, prescribes policies and procedures for the Army's implementation of the Disability Evaluation System (DES). Federal law defines the DES as a DOD process for evaluating the nature and extent of disabilities affecting members of the Armed Forces; its objectives are to maintain an effective and fit military force, provide benefits for Soldiers whose service was terminated due to a disability incurred in the line of duty, and to provide prompt processing of disabled Soldiers while ensuring the Soldiers' rights and the interests of both the government and Soldiers are protected. a. PEBs determine a Soldier's fitness for continued military service and make certain administrative decisions that can have benefit implications; in reaching its determinations, PEBs apply the standard of "preponderance of evidence." (1) PEBs are either informal or formal. The informal PEB consists of two military or civilian members and makes the Soldier's initial fitness determination. In cases where the Soldier does not concur with the informal PEB's findings and recommendations, he/she can request a formal PEB, during which the Soldier and appear, with counsel, to present matters for the PEB's consideration. (2) One of the informal PEB's administrative decisions is, for the purposes of employment under Federal civil service law, the Soldier's unfitting condition was incurred in combat with an enemy of the United States, or the result of armed conflict, or was caused by an instrumentality of war. b. Chapter 5 (Adjudicative Policy for PEB and U.S. Army Physical Disability Agency (USAPDA) Determinations) provides policy guidance for making administrative determinations. (1) Paragraph 5-24 (Determinations for Purposes of Federal Civil Service Employment). 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. These determinations affect a military retiree's eligibility for such benefits as military service being credited toward a civil service retirement, retention in the event of a reduction in force, and military service credit for the accrual of annual leave. (a) Title 5 (Government Organization and Employees), USC, Section 8332 (Creditable Service). If a civil service employee is awarded retired pay based on any period of military service, such credit may only be given if the retired pay was awarded due to a service-connected disability incurred in combat with an enemy of the United States or caused by an instrumentality of war during a period of war. (b) Title 5, USC, Section 3502 (Order of Retention). The Office of Personnel Management will prescribe regulations for the release of its employees in a reduction of force action; an employee who is retired military is entitled to credit for the length of time in active service during a war. (c) Title 5, USC, Section 6303 (Annual Leave; Accrual). Employees are entitled to annual leave with pay; annual leave accrues, in part, based on the employee's years of service. In determining years of service, the employee is entitled to credit for all service; however, those who are retired military will receive credit for their active military service only if they retired due to a disability that resulted from armed conflict or was caused by an instrumentality of war during a period of war or the retiree's service was performed during a war. (d) Title 10 (Armed Forces), Section 10216 (Military Technicians (Dual Status)). A military technician who is also a Federal civilian employee and subsequently loses his/her dual status due to a combat-related disability may be retained in a non-dual status so long as the combat-related disability does not prevent the Soldier from performing non-dual status functions and is not otherwise determined to be disqualified. (e) Armed Conflict. The fact that a Soldier incurred a medical impairment during a period of war, in an area of armed conflict, or while participating in combat operations is insufficient to support a finding that the disability resulted from armed conflict. There must be a definite causal relationship between the armed conflict and the resulting unfitting condition. Armed conflicts include the following: war, expedition, occupation of an area or territory, battle, skirmish, raid, invasion, rebellion, insurrection, guerilla action, riot, or any other action in which the Soldier was engaged with a hostile or belligerent nation, faction, force, or terrorists. Normally, Soldiers assigned to administrative, supply, or other support duties in a rear area are not considered to be in the area of combat operations, unless the injury actually occurred during an enemy attack in the immediate area. (f) Title 38 (Veterans' Benefits), Section 101 (Definitions) lists the periods of war; for Korea, the period was 27 June 1950 to 31 January 1955. (2) Paragraph 5-25 (Determinations for Federal Tax Benefits). Title 26 (Internal Revenue Code), Section 104 (Compensation for Injuries or Sickness) states a Soldier's disability compensation is excluded from Federal gross income when the retirement was based on a combat-related disability. A physical disability will be considered combat related if it caused the Soldier to be unfit or contributed to unfitness and was incurred under any of the following circumstances: * Direct result of armed conflict (as defined in paragraph 5-24 above) * While the Soldier was engaged in hazardous service, such as aerial flight, parachute duty, demolition duty, experimental stress duty, and/or diving duty * Under conditions simulating war, i.e., war games, practice alerts, tactical exercises, airborne operations, leadership reaction courses, grenade or live-fire weapons practice, bayonet training, hand-to-hand combat training, rappelling, and/or negotiating combat confidence or obstacles courses * Caused by an instrumentality of war, such as a military weapon; accidents involving a military combat vehicle; injury/sickness due to fumes, gases, or explosion of military ordnance; in any case, there must be a direct causal relationship between the instrumentality of war and the disability 2. DOD FMR, Volume 7B, Chapter 63 (CRSC) provides definitions of combat-related injuries when determining eligibility for CRSC. The FMR states: a. Direct Result of Armed Conflict. (1) To support a combat-related determination, it is not sufficient to only state the fact that a member incurred the disability during a period of war, in an area of armed conflict, or while participating in combat operations. There must be a definite causal relationship between the armed conflict and the resulting disability. (2) Armed conflict includes a war, expedition, occupation of an area or territory, battle, skirmish, raid, invasion, rebellion, insurrection, guerilla action, riot, or any other action in which Service members are engaged with a hostile or belligerent nation, faction, force, or with terrorists. b. While Engaged in Hazardous Service. Hazardous service is service that includes, but is not limited to, aerial flight, parachute duty, demolition duty, experimental stress duty, and diving duty. A finding that a disability is the result of hazardous service requires that the injury or disease be the direct result of actions taken in the performance of such service. c. In the Performance of Duty under Conditions Simulating War. In general, performance of duty under conditions simulating war covers disabilities resulting from military training, such as war games, practice alerts, tactical exercises, airborne operations, leadership reaction courses, grenade and live fire weapon practice, bayonet training, hand-to-hand combat training, repelling, and negotiation of combat confidence and obstacle courses. d. Instrumentality of War. There must be a direct causal relationship between the instrumentality of war and the disability. It is not required that a member’s disability be incurred during an actual period of war. The disability must be incurred incident to a hazard or risk of the service. (1) An instrumentality of war is a vehicle, vessel, or device designed primarily for military service and intended for use in such service at the time of the occurrence or injury. It may also include such instrumentality not designed 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. (2) A determination that a disability is the result of an instrumentality of war may be made if the disability was incurred in 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 materiel. 3. AR 15-185 states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220004990 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1