IN THE CASE OF:  	  

		BOARD DATE:  14 October 2014	  

		DOCKET NUMBER:  AR20140000870 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, correction of his military record to reflect the injury he received during his combat tour in Iraq was caused by an instrumentality of war and therefore was combat-related.

2.  The applicant defers his statement to counsel and provides no additional evidence.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, a change of the applicant's military record to reflect the injury that he received during his combat tour in Iraq was caused by an instrumentality of war and therefore was combat-related.  

2.  Counsel states:

   a.  On 30 January 2013, the applicant was discharged from the Army following 5 years of medical treatment, medical evaluations, and finally a determination that the injury he incurred during a combat tour in Iraq was incompatible with service.  The applicant continued his civilian role as a military technician (MILTECH) after the discharge.  

   b.  The sole issue before the Board relates to the injury the applicant received during his combat tour in Iraq.  The applicant is a three-time combat veteran, having served both in Iraq and Afghanistan.  He currently holds a position as a MILTECH at the U.S. Army Reserve (USAR) Center in Tallahassee, FL.
   c.  Pursuant to Title 10, U.S. Code (USC), section 10216, a MILTECH, referred to as "dual-status," requires the constituent to perform as a member of both the civilian workforce and a drilling member of an Army Reserve unit.  Exceptions, however, are provided when the member loses his drilling status so long as the member is able to perform the duties of his civilian position.  Up until January 2013, the applicant had that dual status, but he lost the drilling status when an Army Physical Evaluation Board (PEB) determined he was ineligible to continue service.

   d.  The applicant received notice in March 2013 that he could not continue in the civilian role because the PEB deemed his injury "not combat-related."  The key issue in making the combat-related determination is whether or not the injury was caused by an instrumentality of war.  "This is wherein the problem lies."

   e.  The Command Judge Advocate (CJA) for the applicant's unit wrote a legal opinion about the case in October 2011 determining, as a matter of law, the cause of the applicant's injury was an "instrumentality of war."  The CJA, Lieutenant Colonel (LTC) Sxxxxx Exxxxx, very astutely pointed out that an instrumentality of war, a legal determination, is not clearly defined by Army regulations.  The problem that arises when a clear definition of a legal term is not provided to an Agency is that investigations from the Agency often result in arbitrary and capricious determinations.

   f.  That is precisely what we have here.  The Department of the Army haphazardly determined that the applicant's injury was not caused by an instrumentality of war.  That result is arbitrary and capricious because there is absolutely no explanation as to why the CJA, LTC Exxxxx, was wrong.  The PEB failed to explain why the applicant's injury was not combat-related, despite the fact that it occurred in a combat zone by an instrumentality of war.  The PEB also failed to take into consideration the Army Regulation (AR) 15-6 (Boards, Commissions, and Committees Procedures for Investigating Officers and Boards of Officers) which determined that the applicant's injury was caused by an instrumentality of war.

   g.  After the applicant's discharge in January 2013, the applicant petitioned the USAR to waive the requirement that he be removed from his civilian position. An attorney for the Army, Captain (CPT) Mxxx Bxxxx, wrote an opinion that the applicant's injury was not caused by an instrumentality of war without providing any legal reasoning for the statement.  Once again, there is no explanation as to why the applicant's injury is not combat-related.


   h.  Simply stated, the applicant incurred his injury in a combat zone, while receiving combat pay, and performing duties related to combat which included handling an instrumentality of war.  But for this instrumentality of war, the applicant would not have been injured.  The AR 15-6 investigation clearly determined the injury was caused by an instrumentality of war.  The PEB did not consider the results of the investigation or simply make a typographical error. Either way, it is an inequity to allow the record from the PEB to reflect that the injury the applicant received during his combat tour was not caused by an instrumentality of war.

   i.  It is an inequity to allow the record to reflect the injury the applicant received during his combat tour in Iraq was not caused by an instrumentality of war and therefore not combat-related. 

   j.  On 23 December “2014,” the applicant submitted an application for review to the Army Board for Correction of Military Record (ABCMR) related to a determination made by the PEB that as a matter of fact, the injury he sustained while deployed to Iraq was not combat related.  This finding was contrary to a fact established by his command in conclusions to an AR 15-6 investigation.  The PEB did not consider this established fact.  Furthermore, at the end of the PEB process the applicant's PEB Liaison Officer (PEBLO) coerced him into waiving a right to appeal.

   k.  Master Sergeant (MSG) Wxxxxx V. Gxxxxx, a friend of the applicant's, approached the applicant with his own PEB determination.  MSG Gxxxxx informed the applicant his PEBLO had instructed him to sign the DA Form 199 (Informal PEB Proceedings) in that he had no basis for appeal.  MSG Gxxxxx's result was exactly the same as the applicant's result.  The applicant unequivocally told MSG Gxxxxx to appeal.  MSG Gxxxxx, acting against his PEBLO, submitted an appeal citing the basis for the appeal was the determination that his injury was not combat-related.  Two weeks after submitting the appeal, the Department of the Army reversed its findings and determined MSG Gxxxxx's injury was combat related.

   l.  It would be inequitable to allow the record to continue to reflect the applicant's injury was not combat-related.  Had he been truly given the opportunity to appeal, which would have included as a matter of law the objection to the PEB's failure to consider the AR 15-6 results, it is more likely than not the results would have changed.  The applicant's injury would be deemed combat-related.    



3.  Counsel provides copies of the applicant's:

* DA Form 1574 (Record of Proceedings by Investigating Officer/Board of Officers)
* Memorandum, subject:  Summary AR 15-6, Retention of Non-Dual Status Technician with Combat-Related Disability 
* Memorandum, subject:  Legal Review of AR 5-6 Investigation Regarding the applicant 
* DA Form 199 
* Memorandum, subject:  Permanent Physical Disability Retirement 
* Orders Number D030-06
* Memorandum, subject:  Legal Review – Retention of Former Dual Status MILTECH as Combat Related Injured – Non-Dual Status Technician
* Memorandum, subject:  PEB Rebuttal, MSG Gxxxxx, Wxxxxxxxx V. 

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the USAR on 19 March 2003, with prior Army enlisted service.  He served in military occupational specialty 92Y (unit supply specialist).  

2.  He was ordered to active duty in support of Operation Iraqi Freedom (OIF) and entered active duty on 3 January 2004.  He served in Iraq from 9 February through 6 November 2004.  He was released from active duty (REFRAD) on 1 December 2004.

3.  He was again ordered to active duty in support of OIF and entered active duty on 23 May 2008.  He served in Iraq/Kuwait from 23 July through 30 October 2008.  He was REFRAD on 29 January 2009.

4.  His records contain the following:

   a.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 9 July 2011, which shows he injured his left shoulder on 17 October 2004 while unloading and loading equipment into a Light Medium Tactical Vehicle (LMTV).  He received medical treatment.  

   b.  A DA Form 2173, dated 23 June 2011, which shows he was on a detail on 30 October 2008 loading and unloading duffel bags for deployment back to the United States when he pulled a muscle; he filed a complaint with the doctor at the demobilization site at Fort Bliss, TX.  He was told to see his civilian doctor.

5.  On 8 August and 20 October 2011, his left rotator cuff tear and lower back fracture were determined to be in the line of duty (LOD).

6.  Counsel provided copies of the following:

   a.  A DA Form 1574 which shows on 6 September 2011 an informal investigation concerning the applicant was conducted.  The DA Form 1974 stated "See Attached."

   b.  A memorandum, dated 12 September 2011, subject:  Summary AR 15-6, Retention of Non-Dual Status Technician with Combat-Related Disability, wherein the investigating officer (IO) stated:

		(1)  An informal investigation concerning the applicant was conducted on 9-10 September 2011.  As a condition of employment, dual status technicians must maintain membership in the Selected Reserve (SELRES).  Those individuals who suffered injury as a result of a combat-related event would be considered for retention as a Combat Related Injured-Non Dual Status Technician (CRI-NSDT).

		(2)  The purpose of the investigation was to determine if the applicant's injuries met the criteria of a combat-related injury in order to recommend retention/non-retention as a CRI-NSDT.  Documents reviewed included the medical evaluation board packet, disqualification notification, LOD determinations for injuries sustained to the applicant's left shoulder and bilateral spinal cord injury, medical records, leave and earnings statements, and noncommissioned officer evaluation reports.

		(3)  Regulatory guidance reviewed included the:  National Defense Authorization Act (NDAA) 2008, section 511; Retention of MILTECH who lost dual status in the SELRES due to combat related disability; Title 10, USC, sections 1413a and 10218; and U.S. Army Physical Disability Agency (USAPDA) White Paper:  Disability resulting from Armed Conflict, Instrumentality of War, Conditions Simulating War, and Those Incurred in a Combat Zone 20090203 (hereafter termed White Paper Disability 2009).

		(4)  The applicant provided a DA Form 2823 (Sworn Statement) concerning his injuries, that is, when the injuries occurred, the activities he was engaged in when he sustained the injuries, and the location where the injuries occurred.  Regarding the applicant's left shoulder, the injury was a result of cumulative stressors that eventually resulted in a left rotator cuff tear.  Regarding his bilateral spinal cord injury, the injury occurred as a result of handling military used equipment in the area of operations.
		(5)  Title 10, USC, section 1413a statutory guidance makes clear that a combat-related disability is compensable by the Department of Veterans Affairs (VA) and is attributable to an injury for which the member was awarded the Purple Heart, was incurred as a direct result of armed conflict which engaged in hazardous service in the performance of duty under conditions simulating war or through an instrumentality of war.

		(6)  It is with the term, "instrumentality of war," that concerns that summary.  White Paper Disability 2009 states that "an instrumentality of war is a device or material object designed primarily for military service and intended for use in such service at the time of the occurrence of the injury."  The occurrence should be a hazard to which the Soldier was subjected to as an incident of military service."  The paper also stated that an instrumentality of war may be a device not designed primarily for military service, but that it was used in such a way that it subjected the individual to a hazard peculiar to the military service.

		(7)  The White Paper advised its readers to "look to see if the device was used in the performance of military duty in applying those criteria."  In other words, no clear or finite definition of instrumentality of war existed, but must be established when considering the object and the circumstances in which the injury occurred.

		(8)  Regarding the applicant's left shoulder injury, in accordance with (IAW) the forgoing statutory guidance listed, it was clear the applicant's left shoulder injury did not meet the criteria for a combat-related injury or that it occurred in any capacity associated with combat-related activities or instrumentality of war.

		(9)  Title 10, section 10218 states that an individual who loses dual status and is not eligible for an unreduced annuity or is under age 60 at that time, the technician shall be offered the opportunity to apply for a civil service position that was not a technician position.  If the applicant's shoulder injury was the sole injury under consideration, it appeared that guidance in Title 10, section 10218 was applicable.  The applicant would be eligible to apply for a civil service position that was not a technician position.

		(10)  Regarding the applicant's bilateral spinal cord injury, it was surmised that the injury sustained to the applicant's lower back was the result of a condition caused by a device or material object designed for military service and was intended for use in such service, IAW guidance provided in Title 10, section 1413a and expounded in the White Paper Disability 2009.

		(11)  The applicant's duffle bag was an issued item specifically identified on a packing list to hold items necessary to execute duties in a deployed environment.  As such it met the criteria of a device designed primarily for military service and was intended for use in such service.

		(12)  The injury that occurred was a direct result of the required handling of the duffle bag.  The manner in which the duffle bag was used "subjected the individual to a hazard peculiar to the military service."  That met the second criteria of an instrumentality of war previously stated.  The nature of the injury was such that had the member not been engaged in military duty or use of items specifically relating to combat, the injury would not have occurred.  It was concluded that the applicant's bilateral spinal cord injury was caused by an instrumentality of war.    

		(13)  It was recommended that the applicant's bilateral spinal cord injury was sustained as a result of an incident with an instrumentality of war and he was able to perform the functions of his position in a civilian capacity, thereby meeting the criteria in both Title 10 (USC), sections 1413a and 10218, and NDAA 2008.

		(14)  The recommendation was that the commander favorably consider retaining the applicant as a CRI-NDST.

   c.  A memorandum, dated 2 October 2011, subject:  Legal Review of AR 15-6 Investigation regarding the applicant shows the CJA found the investigation to be legally sufficient and stated:

		(1)  The applicant appeared to have injured his lower back by picking up a duffle bag while in Kuwait.  The IO concluded the applicant's duffel bag constituted "an instrumentality of war," thus leading to the conclusion that the applicant had suffered a combat-related disability.  The applicant concurred with that conclusion and stated:

			(a)  The duffel bag was designed for Spartan environments that really nailed down the conclusion that the applicant's injury was a result of an instrumentality of war, as it established that the applicant's use of the duffel bag was in such a way that it subjected him to a hazard peculiar to the military service.  

			(b)  Kuwait was one of the harshest, most unforgiving locations on planet Earth.  Temperatures regularly exceeded 130 degrees; sweat dried on one's shirts, leaving rings of salt leeched from one's muscles.  A person handling a duffle bag in a 70 degree locale would not find his musculature compromised in handling a duffle bag due to fatigue.  

			(c)  That was not the case in Kuwait.  Fatigue induced by extreme heat could easily have led to the handling of the duffle bag by the applicant in a way that subjected him to an increased risk of injury because he was simply too tired to handle the bag correctly.  Matters such as that are why the guidance referred to, i.e., that determinations depend upon the facts and circumstances of each case existed.

		(2)  The IO's findings are supported by a preponderance of the evidence and her conclusion that the applicant's injury was incurred as a result of an instrumentality of war was support by those findings.

   d.  A DA Form 199 which shows an informal PEB convened on 21 January 2013 and considered the applicant's medical conditions of lumbar intervertebral disc syndrome; status post left shoulder labral tear repair; neuralgia, lower extremity, associated with intervertebral disc syndrome; and residual scars, posterior trunk and left shoulder.  The PEB noted the following:

		(1)  The lumbar intervertebral disc syndrome condition began on 28 October 2008, in Iraq, when the Soldier was loading duffle bags.  Despite multiple treatment modalities, including post-surgical physical therapy the Soldier's impairment persisted.

		(2)  The status post left shoulder labral tear repair condition began on 17 October 2004, in Iraq, when the Soldier was loading and unloading equipment from a LMTV, despite multiple treatment modalities, including post-surgical physical therapy the Soldier's impairment persisted.

		(3)  The neuralgia, lower extremity, association with intervertebral disc syndrome condition began, on 28 October 2008, in Iraq, when the Soldier was loading duffel bags, despite multiple treatment modalities, including post-surgical physical therapy the Soldier's impairment persisted.

		(4)  The residual scars, posterior trunk condition began on 17 October 2004, in Iraq, when the Soldier was loading and unloading equipment from a LMTV, despite multiple treatment modalities, including post-surgical physical therapy the Soldier's impairment persisted.




		(5)  The PEB determined the following:

			(a)  The applicant was physically unfit and recommended a rating of 50 percent (%) and permanent disability retirement.

			(b)  The disability disposition was not based on a disease or injury incurred in the LOD 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 LOD during a period of war.

			(c)  The disability did not result from a combat-related injury under the provisions of Title 26, USC, section 104 or Title 10, section 10216.

			(d)  The applicant concurred with the findings and recommendations of the PEB on 24 January 2013 and waived his right to a formal hearing  

   e.  A Permanent Physical Disability Retirement memorandum, dated 30 January 2013, where in the Chief, Operations Division, USAPDA, advised the applicant with the findings and recommendations of the PEB and provided him with orders announcing his retirement.  

   f.  Orders Number D030-06, issued by the USAPDA, on 30 January 2013, announced the applicant's placement on the Retired List in pay grade E-6 effective 6 March 2013.  The orders stated the disability was not based on an injury or disease received in the LOD 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 LOD during a period of war and the disability did not result from a combat-related injury under the provisions of Title 26, USC, section 104.

   g.  Page 3 of a DA Form 199 which shows the PEB was approved on 1 February 2013.

   h.  A memorandum, dated 25 February 2013, subject:  Legal Review – Retention of Former Dual Status MILTECH as Combat Related Injured – Non-Dual Status Technician, wherein the Chief, Military Justice, stated:

		(1)  Due to the loss of his military status based on a physical disability and the resulting loss of his dual status and ability to participate in the MILTECH program – the applicant of the 106th Military Police Battalion sought retention IAW Title 10, USC, section 10216(g) as a CRI-NDST.

		(2)  He had reviewed the retention packet and references.  Despite an initial determination by a 15-6 IO that the applicant's injury was "combat-related" as the result of an "instrumentality of war," the USAPDA recently approved contrary findings by the applicant's informal PEB which was designated under AR 635-40 (Personnel Separations – Physical Evaluation for Retention, Retirement, or Separation) as the findings of fact with respect to the nature of a Soldier's injuries. 

		(3)  Significantly, the applicant concurred in writing with the PEB's findings and waived formal hearing of his case.  Absent the threshold finding of a combat-related injury, the applicant does not qualify for retention as a CRI-NDST under Title 10, USC, section 10216(g).

		(4)  IAW reference, the 290th MP Brigade conducted an informal AR 15-6 investigation to ascertain the facts surrounding the applicant's claimed disability and to determine whether the disability was "combat-related" per the guidance in references (IO and CJA memoranda, PEBLO memorandum, and PEB's findings).

		(5)  It was evident from the drafting of references that the findings of the AR 15-6 IO investigation were intended to be interim and did not purport to control over the findings of the PEB.  Even if the AR 15-6 IO's findings were intended to be binding, procedures set out in a USAR memorandum cannot trump Army regulations.

		(6)  The PEB is the designated fact-finder with respect to the nature of a Soldier's injury, including whether the injury was combat-related as the result of an "instrumentality of war" as described in the references.

		(7)  The informal PEB found that the applicant's injuries were not combat-related as the result of an instrumentality of war.  The applicant, after being advised of his right to counsel, accepted those findings and waived his right to a formal PEB.  The USAPDA approved those findings IAW AR 635-40, paragraph 4-20e(1), and forwarded them to the U.S. Army Human Resources Command for final disposition.  By Orders Number D-030-06 the applicant went into a 50% permanent disability status as of 6 March 2013.

		(8)  Absent the required threshold finding of a combat-related injury, the applicant did not qualify for retention as a CRQ-NDST under Title 10, USC, section 10216(g).

   i.  A PEB rebuttal memorandum, dated 16 December 2013, wherein MSG Gxxxxx's Medical Evaluation Board Counsel stated that MSG Gxxxxx disagreed with the PEB findings that his post-traumatic stress disorder (PTSD) was not combat related and requested his PEB be updated to reflect the combat-related nature of his PTSD.  On all other counts he concurred with the PEB's findings.
7.  In an advisory opinion, dated 17 September 2014, the G3 Operations Sergeant, USAPDA, reiterated the applicant's request.  The USAPDA official recommended disapproval of the applicant's request.  The USAPDA official stated:

   a.  The applicant's unfitting back and shoulder conditions were caused by lifting injuries.  The back injury was caused by lifting duffel bags and his shoulder injury by moving military equipment.  A PEB found that the injuries were not the direct result of armed combat, were not the result of injuries caused by an instrumentality of war, and were not the result of combat-related training.  On
24 January 2013, the applicant concurred with the PEB's findings and waived his right to a formal hearing.  The applicant cited, as evidence of the PEB's error, a Reserve unit's 2011 AR 15-6 finding and legal review that opined that the applicant's injuries were caused by an instrumentality of war.  These opinions were not endorsed by the PEB.

   b.  Both of the applicant's injuries were caused by lifting certain items.  The injuries were simply the result of physical labor related to the weight of the objects and/or the position of movement of the applicant in lifting or moving these objects.  There is no evidence that the unique design or military specifications of any of these objects are what directly resulted in the unfitting injuries.  Lifting a duffel bag, no matter the location or environment, is something that airport porters and other movers of luggage, or any objects and/or packages, do in the civilian world on a daily basis.  It is not uniquely military and certainly is no more dangerous or hazardous than any other lifting duties/tasks that occur around the world every day by non-military personnel.

   c.  For an injury to be designated as being caused by an instrumentality of war the device must not simply be uniquely military, but the injury must also have resulted from the use of the device in such a manner that the disability must be incurred "incident to a hazard or risk of the service" (per the definition of instrumentality of war in Department of Defense Instruction 1332.38 and AR 635-40).  The lifting of a duffel bag, or other military items, in and of itself, does not rise to the level of a unique hazard or risk of the service.  The use or occurrence must differ from the "use or occurrence under similar circumstances in civilian pursuits."  There were no special dangers or risks involved in moving/lifting these items that could be considered unusual or different in a civilian environment.

   d.  Since Congress removed the tax exemption on military disability compensation in 1975 it has been clear that Congressional intent is that unless a disability meets the criteria of the remaining special tax exemptions/benefits, by a preponderance of the evidence, that the compensation remain fully taxable and that no additional benefits be awarded.  Unless a Soldier is disabled by direct combat action, or the unique military dangers, hazards, and/or risks caused by the military devices that ordinary civilians would not be subjected to, they are not eligible to be awarded additional compensation/benefits beyond what all Soldiers are entitled to.  In the applicant's cases, his injuries were fully compensable under the military disability system, but there clearly was not a preponderance of the evidence that they were combat related or directly caused by an instrumentality of war.

   e.  The PEB's findings were supported by a preponderance of the evidence, were not arbitrary or capricious, and were not in violation of any statute, directive, or regulation.  The PEB's findings were within the sound discretion of the PEB and should not be overturned absent clear error.

8.  The advisory opinion was forwarded to the applicant for acknowledgement/
rebuttal on 17 September 2014.  In his rebuttal, dated 30 September 2014, the applicant stated:

   a.  The USAPDA stated that a PEB found that his injuries were not the result of an instrumentality of war and further stated that "the cause of the injuries was simple physical labor."  This summarized the agency's position as being that nothing that can happen in the civilian workplace, as well as military service, can be determined to be combat related or caused by an instrumentality of war.  

   b.  The PEB as well as the USAPDA clearly overlooked or ignored compelling facts and circumstances, making its opinion arbitrary and capricious.  He was under duress due to being informed by the PEBLO that "there was nothing I could win on appeal" and he was also aware the AR 15-6 investigation which found his injuries were in fact found to meet the legal definition of combat related.  The PEB and USAPDA's failure to endorse the findings did not change the validity or accuracy of them.

   c.  A comparison between placing luggage on a check-in counter at a commercial airport is not even remotely close to lifting and placing luggage on a military flight departing a hostile fire zone.  The burden of proof, preponderance of the evidence, is not adequately met by the agencies' claim.  The agency cites its interpretation of the 1975 Congressional action pertaining to taxation of disability pay.  It is not in the agency's purview to interpret congressional intent, nor does it contribute to or take away from the facts before the ABCMR.




   d.  While the USAPDA's argument sounds persuasive, it is use of literary fallacies and lack of evidence to support its reasons render its claims ineffective.

9.  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 states:

   a.  Paragraph 4-19k(b)(2) - disability pay is awarded by reason of combat-related injury from performing extra-hazardous service even if not directly engaged in combat and conditions simulating war, including but not limited to, performance of tactical exercises.

   b.  Paragraph 4-24b(1) – upon final decision of the USAPDA, an individual would be issued retirement orders or other disposition instructions for permanent retirement for disability.  

   c.  A combat-related injury is a personal injury or sickness that a Soldier incurs under one of the following conditions: as a direct result of armed conflict; while engaged in extra hazardous service; under conditions simulating war; or which is caused by an instrumentality of war.

   d.  An instrumentality of war is 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's and counsel's contentions and the documentation submitted were carefully considered.

2.  The evidence of record shows an informal investigation was conduct on 
9-10 September 2011 for the purpose of determining if the applicant's injuries met the criteria of a combat-related injury in order to recommend his retention/non retention as a CRI-NSDT.  The IO concluded that the applicant's bilateral spinal cord injury was caused by an instrumentality of war, thereby a combat-related injury.  The IO determined his left shoulder injury did not meet the criteria of a combat-related injury.  The IO recommended the applicant's commander consider retaining the applicant as a CRI-NDST.  The unit's CJA opined the AR 15-6 investigation was legally sufficient and was supported by a preponderance of the evidence.  

3.  On 21 January 2013, an informal PEB found that the applicant's disabilities of lumbar intervertebral disc syndrome; status post left shoulder labral tear repair; neuralgia, lower extremity, association with intervertebral disc syndrome; and residual scars, posterior trunk and left shoulder did not result from a combat-related injury.  The PEB determined that the disabilities occurred during his period of service in Iraq when he was loading duffel bags and loading and unloading equipment from a LMTV.  The PEB findings were approved on 
1 February 2013 and he was permanently retired on 6 March 2013. 

4.  Combat-related injury determinations require evidence of a direct causal relationship to war or instrumentality of war.  The fact the applicant incurred his disabilities during a period of war or an area of armed conflict or while participating in combat operations is not sufficient to support a combat-related determination.  There must be a definite causal relationship between the armed conflict and the resulting disability.  There is insufficient evidence to show his disabilities were combat-related as the result of an "instrumentality of war."

5.  The comparison is not just to placing luggage on a check-in counter.  Baggage handlers spend hours on hot tarmacs in all kinds of climates tossing luggage into/out of cargo holds.

6.  There is no evidence his PEB findings and recommendations and discharge were the direct result of error or inadequacies by the PEB and USAPDA.   There is also no evidence of record and he provides insufficient evidence to show his disabilities were improperly not considered.  His separation was accomplished in compliance with applicable regulations with no procedural errors, which would tend to jeopardize his rights.  Therefore, he is not entitled to the request relief.

7.  The basic regulation which provides policy and guidance to this Board states that the ABCMR will consider individual applications that are properly brought before it and will decide cases on the evidence of record.  This essentially means that cases are considered and the evidence is judged on its own merits.  Each case that is brought before the Board may have some similarities to other cases; however, each has many differences and therefore what was done in one case and the outcome achieved can not necessarily be applied to another seemingly similar case.



BOARD VOTE:

________  ________  ________  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 that the overall merits of this case 
are insufficient as a basis for correction of the records of the individual concerned.



      __________X____________
       	   CHAIRPERSON
      
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.

ABCMR Record of Proceedings (cont)                                         AR20140000870



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140000870



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1