BOARD DATE:	  18 November 2014

		DOCKET NUMBER:  AR20140002956 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of the applicant's:

	a.  DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 30 July 2012, to show his disability resulted from a combat-related injury as defined in Title 26, U.S. Code, section 104.

	b.  retirement orders, dated 20 September 2012, to show his disability was caused by an instrumentality of war incurred in the line of duty (LOD) during a period of war as defined by law.

2.  Counsel states:

	a.  The PEB and U.S. Army Physical Disability Agency (USAPDA) erroneously determined that:

		(1)  the body armor that caused the applicant's unfitting injury was not an instrumentality of war because it mistakenly applied the criteria applicable to a device not designed for military service, despite body armor's designation as a defense article under the U.S. Munitions List (USML) and International Traffic in Arms Regulations (ITAR) due to its design primarily for military service; and

		(2)  the applicant's disability was not incurred under conditions simulating war, despite the fact that it occurred during the conduct of a military training exercise at Fort Bliss, Texas, in preparation for deployment to Iraq.  The conclusions by the PEB and USAPDA were inconsistent with and contrary to Department of Defense Instruction (DODI) 1332.38 (Physical Disability Evaluation) and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) and must be corrected.

	b.  In or about December 2007, the applicant was a staff sergeant in the Maryland Army National Guard mobilized to active duty and was participating in tactical convoy operations training at Fort Bliss as part of his unit's Iraq pre-deployment training.  During training while the applicant was performing his military duties in a military vehicle, another Soldier struck him in the right eye and on the right side of his head with military body armor containing hard ceramic ballistic plate inserts (Interceptor Body Armor (IBA)).  The force of the IBA hitting the applicant's head and eye caused him to suffer a detached retina in his right eye and other medical conditions that led to his permanent disability.

	c.  In defining the term "instrumentality of war," DODI 1332.38 and Army Regulation 635-40 provide for different criteria depending on whether the device at issue is or is not designed primarily for military service.  For a device designed primarily for military service, two criteria must be met:  (1) there must be a direct causal relationship between use of the device and the disability; and (2) the disability must be incurred incident to a hazard or risk of service, which the Army has interpreted to mean in the performance of a Soldier's duties.  DOD has determined that IBA is a device designed primarily for military service because IBA is designated as a defense article on the USML under the ITAR.  Consequently, the applicant's disability was caused by an instrumentality of war because his injury was directly caused by the IBA and the injury occurred while he was performing his military duties during a training exercise.  In addition, the applicant's disability was combat related because it resulted from an instrumentality of war or occurred under conditions simulating war while he was in a military vehicle during and in connection with the conduct of tactical convoy operations training at Fort Bliss.

	d.  Despite the fact that the applicant's disability fell squarely within the regulatory requirements for a combat-related disability or one caused by an instrumentality of war during a period of war, the PEB and USAPDA determined the applicant's disability did not meet these requirements.  The USAPDA incorrectly used the criteria for a device not designed primarily for military service, ignoring the fact that DOD and the U.S. Government had designated IBA as a defense article on the USML.  To that end, the USAPDA mistakenly took the position that to be an instrumentality of war, the IBA had to subject the applicant to a hazard peculiar to military service and its use must have differed from its use under similar circumstances in civilian pursuits.  The USAPDA also incorrectly determined the applicant's unfitting injury was not incurred under conditions simulating war because it ignored substantial evidence that the IBA that struck the applicant was being stowed into a military vehicle that was being used during an ongoing military training exercise rather than during a stoppage in the training for sporting activities or a meal.  Based on the administrative records in this case, the determinations by the PEB and USAPDA were arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, and unsupported by substantial evidence because both the PEB and USAPDA failed to follow the applicable DOD and Army regulations, applied erroneous legal standards, reached inconsistent conclusions, and failed to consider substantial evidence in the records contrary to the determination.

	e.  To remedy the errors by the PEB and USAPDA, counsel requests correction of the applicant's military records by amending his DA Form 199 and retirement orders, directing the Defense Finance and Accounting Service to make all appropriate adjustments to his retired pay account to reflect that his retired pay is not subject to Federal income tax withholding effective 25 October 2012 and paying him any amounts previously withheld from his retired pay for Federal income tax purposes, and directing any other monetary payments or providing any other benefits to which the Board determines the applicant is entitled.

	f.  Counsel provides a detailed account of the circumstances surrounding the applicant's injury and his disability proceedings.

3.  Counsel further states:

	a.  The PEB and USAPDA erroneously interpreted the definition of the term "instrumentality of war" in determining that a disability resulting from being struck by IBA during military training was not caused by an instrumentality of war.  The IBA which caused the applicant's disability was a device designed primarily for military service and intended for use in such service.  A device designed for military service and intended for use in such service is an instrumentality of war if it causes the disability and was used incident to a hazard or risk of the service.

	b.  The USAPDA erroneously applied the provisions of Army Regulation 
635-40 that apply to a device not designated primarily for military service to the IBA that caused the applicant's disability.

	c.  There is substantial evidence that the IBA caused the applicant's disability and the occurrence was incident to a hazard or risk of the service because the IBA was used during the performance of military duties.

	d.  The USAPDA determination that the applicant's disability did not occur under conditions simulating war was based on an erroneous interpretation of DODI 1332.38 and Army Regulation 635-40 and failed to consider substantial evidence in the administrative record.

	e.  A disability is incurred under conditions simulating war when the unfitting injury occurs during tactical exercises of field training exercises and there is a close causal connection between the training and the injury.

	f.  There is substantial evidence that the applicant was participating in a tactical exercise or field training exercise at the time of his injury.  Counsel states the applicant testified at the formal PEB that:  "I was a vehicle commander at the time in a convoy and I had a troop, it was hot, and I asked him to gear down for a few minutes until we got our next mission.  I was talking on the SINGARS [SINCGARS – Single-Channel Ground and Airborne Radio System] – looking at the Blue Force Tracker, which is you know sort of a laptop that sits in a computer that sits in the Humvee [HMMWV – High-Mobility Multipurpose Wheeled Vehicle] and we were getting ready to gear up.  I told him to gear up.  I hadn't geared down, but he had geared down, because he was one of our troops we took care of them drink water and all that kind of stuff.  He opened up the back door of the Humvee, he was the gunner, he slung his IBA up and hit me in the right side of the head right under my ACH [advanced combat helmet], knocked me rumdum for a little while."

	g.  USAPDA acted arbitrarily and capriciously because it used inconsistent rationales and provided no explanation for its shifting positions.

4.  Counsel provides a 29-page brief and 25 exhibits outlined in the final pages of his brief.

CONSIDERATION OF EVIDENCE:

1.  Having prior active service in the Regular Army, the applicant enlisted in the Army National Guard on 16 March 2005.  He was promoted to staff sergeant on 11 October 2006.

2.  He was ordered to active duty in support of Operation Iraqi Freedom on 23 October 2007 and he was released from active duty on 5 September 2008 for completion of required active service.

3.  On 26 September 2011, a medical evaluation board (MEB) diagnosed him with bilateral retinal detachment.  The following conditions were deemed to be medically acceptable:

* post-traumatic stress disorder
* traumatic brain injury
* sleep apnea
* hearing loss
* tinnitus

4.  The MEB recommended his referral to a PEB.

5.  On 25 April 2012, a PEB found him physically unfit due to a status post macular hole repair of his right eye and status post laser retinopexy of his left eye secondary to left eye high myopia with vitreous condensation.  The disability description section of his DA Form 199 (PEB Proceedings) states the onset of his condition occurred in November 2007 at Fort Bliss when he was hit in the right side of his face and eye with body armor.  Left eye retinal detachment was noted in 2008 to be unrelated to trauma.

6.  The PEB recommended a 60-percent disability rating and permanent retirement.

7.  His DA Form 199 also states his retirement is not based on disability from injury or disease received in the LOD as a direct result of armed conflict or caused by an instrumentality of war and incurred in the LOD during a period of war as defined by law, and the disability did not result from a combat-related injury as defined in Title 26, U.S. Code, section 104.

8.  On 21 May 2012, the applicant did not concur with the PEB findings and requested a formal hearing.

9.  On 30 July 2012, a formal PEB found him physically unfit due to a status post macular hole repair of his right eye and status post laser retinopexy of his left eye secondary to left eye high myopia with vitreous condensation.  The disability description section of his DA Form 199 states the onset of his condition occurred in November 2007 at Fort Bliss when he was hit in the right side of his face and eye with body armor.  Left eye retinal detachment was noted in 2008 to be unrelated to trauma.

10.  The formal PEB recommended a 60-percent disability rating and permanent retirement.

11.  His DA Form 199, dated 30 July 2012, states his retirement is not based on disability from injury or disease received in the LOD as a direct result of armed conflict or caused by an instrumentality of war and incurred in the LOD during a period of war as defined by law and the disability did not result from a combat-related injury as defined in Title 26, U.S. Code, section 104.

12.  On 31 July 2012, he did not concur with the formal PEB findings and counsel submitted a statement of rebuttal.

13.  On 20 September 2012, the USAPDA approved the formal PEB's findings.

14.  USAPDA Orders D264-24, dated 20 September 2012, retired the applicant because of physical disability and placed him on the Retired List effective 25 October 2012.  These orders state:

	a.  "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 period of war as defined by law:  NO."

	b.  "Disability resulted from a combat related injury as defined in 26 USC 104 [Title 26, U.S. Code, section 104]:  NO."

15.  Title 26, U.S. Code, section 104, states 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 under conditions simulating war, or caused by an instrumentality of war.

DISCUSSION AND CONCLUSIONS:

1.  The PEB and formal PEB determined the applicant's disabilities did not result from a combat-related injury.

2.  Counsel contends the determinations of the PEB and USAPDA were arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law, and unsupported by substantial evidence and they failed to follow the applicable DOD and Army regulations, applied erroneous legal standards, reached inconsistent conclusions, and failed to consider substantial evidence in the records contrary to the determination.

3.  Counsel requests correction of the applicant's DA Form 199 and retirement orders to show his disability resulted from a combat-related injury.

4.  The evidence of record shows the onset of the applicant's unfitting condition occurred in November 2007 at Fort Bliss when he was hit in the right side of his face and eye with another Soldier's body armor.  By the applicant's own admission, he instructed the other Soldier to remove his protective gear for a few minutes until they received their next mission.  Following radio communications, he then instructed the other Soldier to don his gear.  The other Soldier opened the back door of the Humvee and slung his IBA up hitting the applicant in the right side of his head.  There is no evidence showing this accident was combat-related or under conditions simulating war.

5.  Counsel further contends the IBA is an instrumentality of war based on its designation as a defense article under the USML and ITAR due to its design primarily for military service.  However, body armor and similar protective clothing is routinely used outside of military service to protect various types of police (riot police in particular), private citizens, private security guards, and bodyguards.  Body armor, in and of itself, is not an instrumentality of war.

6.  Counsel's remaining contentions were carefully considered.  However, there is no evidence in the available records and counsel has not provided sufficient evidence showing the applicant's disabilities were incurred as a direct result of armed conflict, while engaged in extra hazardous service under conditions simulating war, or caused by an instrumentality of war.  Therefore, there is insufficient evidence with which to amend the applicant's DA Form 199 or retirement orders.

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 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)                                         AR20140002956



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ABCMR Record of Proceedings (cont)                                         AR20140002956



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