IN THE CASE OF:	  

		BOARD DATE:	 27 August 2015  

		DOCKET NUMBER:  AR20150000205 


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 correction of his records to show he was permanently retired due to physical disability as a result of armed conflict based on a combat related condition during a period as defined by law and that is a combat injury as defined in Title 26 (Internal Revenue Code), U.S. Code, section 104 (26 USC 104).

2.  The applicant states that the results of his Physical Evaluation Board (PEB) indicate his back injury is not combat-related.  However, he injured his back while conducting perimeter guard duty at Camp Victory, Baghdad, Iraq.  Soldiers were required to wear bullet proof vests and carry 210 combat loads in ammunition pouches as a result of taking enemy fire.  In addition, they were required to wear NBC [nuclear, biological, and chemical] gear.  In addition, they had to carry SINGARS [Single-Channel Ground-Air Radio System] radio equipment, along with NVG [night vision goggles] and recharged batteries.  He adds that the equipment was worn for up to 15 hours a day, climbing up and down towers.

3.  The applicant provides copies of his:

* active duty and retirement orders
* DA Form 638 (Recommendation for Award)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* three DA Forms 2173 (Statements of Medical Examination and Duty Status)
* DD Form 261 (Report of Investigation Line of Duty and Misconduct Status)
* DA Form 199-1 (Formal PEB Proceedings)
CONSIDERATION OF EVIDENCE:

1.  The applicant had prior honorable enlisted service in the Army National Guard (ARNG) of the United States (ARNGUS) and Iowa ARNG (IAARNG) from
17 January 1990 through 26 April 2000.  He was awarded military occupational specialty (MOS) 45G (Fire Control Repairer).  He then served in the Iowa Air National Guard from 27 April 2000 through 30 July 2002.

2.  On 31 July 2002, he enlisted in the ARNGUS and IAARNG.

3.  Headquarters, Iowa National Guard, Office of the Adjutant General, Camp Dodge, Johnston, IA, Orders 033-536, dated 2 February 2005, ordered the applicant to active duty in support of Operation Iraqi Freedom (OIF) on
5 February 2005 for a period of 545 days.

4.  A DD Form 214 shows the applicant was honorably released from active duty (REFRAD) on 13 May 2006 and transferred to the 3655th Ordnance Company, Maintenance General Support, Johnston, IA.  He completed 1 year, 3 months, and 9 days of net active service this period.  It also shows he served in Iraq from 14 April 2005 to 7 April 2006.

5.  On 14 February 2011, the G1, Office of the Adjutant General, IAARNG, notified the applicant that he had completed the required years of qualifying service to receive retired pay at age 60.

6.  A DA Form 199-1 shows, on 5 June 2014, a formal PEB conducted at Joint Base Leis-McChord, WA, found the applicant physically unfit and recommended a rating of 40 percent (%) with permanent disability retirement.  It also shows in:

   a.  Section III (Medical Conditions Determined To Be Unfitting):

* Mild Lumbar Spondylosis with early degenerative disc changes at 
L5-S1 secondary (no unfitting radiculopathy – Revised Medical Evaluation Board (MEB), Diagnosis 1) – Rating:  40%.  It shows, in pertinent part, "While this occurred in a combat zone, this is not a combat related condition."
* Bilateral sensorineural hearing loss (Revised MEB, Diagnosis 2):  Rating:  0%

   b.  Section IV (Medical Conditions Determined Not To Be Unfitting) shows Left Shoulder Osteoarthrosis involving AC [Acromioclavicular] Joint and Tinnitus (Revised MEB Diagnoses 3 and 9).  It also summarized the results of the formal hearing, including the applicant's contentions.  In pertinent part, he asserted that his left shoulder condition limited his ability to perform duties in his MOS 91H (Track Vehicle Repairer).  If further shows the following conditions were determined by the medical treatment facility to meet retention standards:

* Left Shoulder Osteoarthrosis involving AC Joint
* Hypertension
* Hyperlipidemia
* Schwannoma of Left Optic Nerve causing Diplopia
* Tobacco use
* subjective Tinnitus

   c.  Section V (Administrative Determinations), in pertinent part, shows the PEB made the following determinations:

* "The disability disposition is not based on disease or injury incurred in the line of duty [LOD] 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 LOD during a period of war (5 USC 8332, 3503, and 6303).  (This determination is made for all compensable cases but pertains to potential benefits for disability retirees employed under Federal Civil Service.)"
* "The disability did not result from a combat-related injury under the provisions of 26 USC 104 or 10 USC 10216."

   d.  The PEB recommended permanent disability retirement under Veterans Affairs Schedule for Rating Disabilities (VASRD) codes 5242-5237 [back] with a 
40% disability rating, VASRD code 6100 [hearing] with a 0% disability rating, and a combined disability rating of 40%.

   e.  The PEB liaison officer affirmed with his signature that he had informed the applicant of the findings and recommendations of the PEB and explained to him the results of the findings and recommendations.
   
   f.  On 10 June 2014, the applicant concurred with the PEB's findings.  He did not request reconsideration of his Department of Veterans Affairs (VA) ratings.

   g.  On 19 June 2014, the PEB was approved for the Secretary of the Army.

7.  Headquarters U.S. Army Physical Disability Agency, Arlington, VA, 
Orders D 163-20, dated 12 June 2014, released the applicant from assignment and duty because of physical disability and placed him on the retired list on 
17 July 2014 in the retired grade of rank of E-6.  The orders also show:
* "Disability is based on injury or disease received in LOD as a direct result of Armed Conflict or caused by an instrumentality of war and incurred in the LOD during a war period as defined by law:  NO"
* "Disability resulted from a combat related injury as defined in 26 USC 104:  NO"

8.  In addition to a copy of his active duty orders, DD Form 214, and PEB proceedings, the applicant provides copies of the following documents.

   a.  A DA Form 638 that shows Headquarters, 199th Forward Support Battalion, Permanent Order Number 227-13, dated 5 August 2005, awarded the applicant the Army Achievement Medal for meritorious achievement from 
28 January 2005 to 15 September 2005.  It shows in Part III (Justification and Citation Data), Achievement Number 1, "Soldier maintained a positive attitude in spite of the rough and demanding conditions on the North Liberty Towers mission.  Soldiers had to contend with temperatures in excess of 100 degrees everyday and frequent dust storms all while wearing full body armor and helmet."

   b.  A DA Form 2173 that shows he was examined, on 6 December 2005, for mid and lower back pain, aggravated by wearing Individual Battle Armor during OIF.  On 5 May 2006, the approving authority determined the injury was incurred in LOD.

   c.  A DA Form 2173 that shows he was examined, on 11 November 2006, for general osteoarthrosis, left shoulder, incurred from late April 2005 to April 2006 during OIF.  He attributed the condition to "routinely conducting guard tower operations in Iraq while carrying heavy load of protective equipment causing shoulder, back, and ankle pain."  On 13 September 2013, the approving authority determined the injury was incurred in LOD.

   d.  A DA Form 2173 that shows it was determined, on 5 December 2006, that the applicant required medical care for a duty related condition (hearing loss) identified through the Post Deployment Health Reassessment screening process on 14 October 2006.  On 15 December 2006, the approving authority determined the condition was incurred in LOD.

   e.  A DD Form 261 that shows the applicant's Tinnitus with Bilateral Sensorineural Hearing Loss (resulting from exposure to indirect explosions), occurred during the period of active duty while serving in Iraq, on 1 April 2006, was determined to be in LOD, and was approved by the Chief, National Guard Bureau, Washington, DC, on 18 August 2014.

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) sets forth policies, responsibilities, and procedures in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Chapter 4 (Procedures), paragraph 4-19 (PEB decisions – common criteria), shows the voting members of a PEB make findings and recommendations in each case on the basis of the instructions set forth in this paragraph.

   a.  The board decides all questions by majority vote.  All findings must be based on a preponderance of the evidence.  Normally PEBs accept the validity of informal and formal LOD investigations and reports.  However, the PEB may question the validity of a favorable LOD determination.  If so, the PEB will conditionally adjudicate the case as if a favorable LOD decision is correct.

   b.  Subparagraph j (Armed conflict – instrumentality of war) shows certain advantages accrue to Soldiers who are retired for physical disability and later return to work for the Federal Government when it is determined that the disability for which retired was incurred under specific circumstances.  These advantages concern preference eligible status within the Civil Service system 
(5 USC 3501).  The specific circumstances are:

    	(1)  The disability resulted from injury or disease received in LOD as a direct result of armed conflict and which itself renders the Soldier unfit.  A disability may be considered a direct result of armed conflict if –

	 	(a)  The disability was incurred while the Soldier was engaged in armed conflict, or in an operation or incident involving armed conflict or the likelihood of armed conflict; while the Soldier was interned as a prisoner of war or detained against his will in the custody of a hostile or belligerent force; or while the Soldier was escaping or attempting to escape from such prisoner of war or detained status.

    	(b)  A direct causal relationship exists between the armed conflict or the incident or operation, and the disability.

    	(2)  The disability is unfitting, was caused by an instrumentality of war, and was incurred in LOD during a period of war as defined by law.  (The periods of war are defined in 38 USC 101 and 301.)

   c.  The Glossary, Section II (Terms) defines relevant terms, as follows:

* Armed conflict:  Any activity in which American military personnel are engaged with a hostile or belligerent nation, faction, or force.  The activity may include a war, expedition, occupation, battle, skirmish, raid, invasion, rebellion, insurrection, guerrilla action, or similar situation.
* Combat-related injury:  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 extrahazardous service; under conditions simulating war; or which is caused by an instrumentality of war.
* Instrumentality of war:  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.

10.  Title 26 (Internal Revenue Code), U.S. Code, section 104 (Compensation for injuries or sickness), provides, in general, except in the case of amounts attributable to (and not in excess of) deductions allowed under section 213 (relating to medical, etc., expenses) for any prior taxable year, gross income does not include, in pertinent part, (a)(4) amounts received as a pension, annuity, or similar allowance for personal injuries or sickness resulting from active service in the armed forces of any country or in the Coast and Geodetic Survey or the Public Health Service, or as a disability annuity payable under the provisions of section 808 of the Foreign Service Act of 1980.  

   a.  It also provides special rules for combat-related injuries.  For purposes of this subsection, the term "combat-related injury" means personal injury or sickness which is incurred –

* as a direct result of armed conflict
* while engaged in extrahazardous service
* under conditions simulating war, or
* which is caused by an instrumentality of war

   b.  It further shows the only amounts taken into account under subsection (a)(4) shall be the amounts received by reason of a combat-related injury.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show he was permanently retired due to a combat-related physical disability condition 
(i.e., back injury) that was a direct result of armed conflict during a period of war and is a combat injury as defined by law.

2.  The PEB found the applicant medically unfit due to mild lumbar spondylosis with early degenerative disc changes at L5-S1 and bilateral sensorineural hearing loss.  He received a total combined disability rating of 40% and was permanently retired.

   a.  The PEB determinations show the applicant was serving on active duty in support of OIF and his conditions were incurred while serving in Iraq during the period 14 April 2005 to 7 April 2006.

   b.  The evidence of record shows his back pain was aggravated by wearing a helmet and full battle armor in Iraq.  His bilateral sensorineural hearing loss was the result of exposure to indirect explosions.

   c.  The PEB found:

* The disability disposition is not based on disease or injury incurred in the LOD 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 LOD during a war period of war (5 USC 8332, 3503, and 6303).
* The disability did not result from a combat-related injury under the provisions of 26 USC 104 or 10 USC 10216.

   d.  Armed conflict is defined as any activity in which American military personnel are engaged with a hostile or belligerent nation, faction, or force.

   e.  A combat-related injury is defined as a personal injury or sickness that a Soldier incurs as a direct result of armed conflict (emphasis added). 

   f.  There is no evidence of record that shows his conditions were incurred as a direct result of armed conflict (emphasis added).

   g.  Thus, the evidence of record does not support the applicant's contention that the physical disability condition (i.e., back injury) was due a combat-related injury that was a direct result of armed conflict.

3.  The evidence of record shows that the applicant's case was thoroughly reviewed and carefully considered throughout the integrated physical disability evaluation system process.  

   a.  The applicant offers no explanation as to why he accepted the PEB determination at the time, but now maintains that the wearing of battle equipment aggravated his back condition.

   b.  The available evidence does not show the Army misapplied either the medical factors involved or the governing statutory/regulatory guidance concerning his disability processing.

   c.  Therefore, the applicant's PEB proceedings are considered proper and equitable.

4.  In view of all of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

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)                                         AR20150000205



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ABCMR Record of Proceedings (cont)                                         AR20150000205



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