IN THE CASE OF:	  

		BOARD DATE:	  17 November 2011

		DOCKET NUMBER:  AR20110010771 


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, reversal of the decision to deny him combat-related special compensation (CRSC) for post-traumatic stress disorder (PTSD).

2.  The applicant states, in effect, he believes his PTSD meets the requirements for award of CRSC.  He has been denied CRSC based on the fact that the Department of Veterans Affairs (VA) did not find that his PTSD was due to a single/individual combat experience.  They do not accept the fact that it may be caused by a totality of stressful situations.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 3947 (Medical Evaluation Board (MEB) Proceedings
* VA Compensation and Pension Exam Report
* VA Rating Decision
* CRSC denial letter from the U.S. Army Human Resources Command (HRC), Fort Knox, KY
* CRSC reconsideration denial letter from the HRC
* Orders






CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army on 17 July 1985 and he held military occupational specialty 55D (Explosive Ordnance Disposal (EOD) Specialist).  He was promoted to the rank/grade of sergeant first class (SFC)/E-7 on 1 July 1997.  He served in Southwest Asia from 9 December 1990 to 16 April 1991 and in Kosovo from October 2000 to May 2001.

2.  On 4 January 2002, the applicant's immediate commander recommended that he be medically boarded and stated the applicant was incapable of performing his duties as an EOD specialist due to a mental disorder.

3.  On 15 March 2002, a MEB convened at Ireland Army Community Hospital, Fort Knox, KY, and diagnosed him with:

* depressive disorder, originating in 2001
* PTSD, originating in 2001
* alcohol dependence, originating in 2001
* degenerative disc disease, originating in 1996
* degenerative joint disease, originating in 1996

4.  The depressive disorder, PTSD, and alcohol dependence were rated as unfitting.

5.  The MEB recommended referral to a physical evaluation board (PEB) as the applicant indicated he did not desire to continue on active duty.  He concurred with the board recommendations.

6.  On 22 March 2002, a PEB convened at Fort Sam Houston, TX, and found his "depressive disorder, not otherwise specified, complicated by alcohol dependence with symptoms of PTSD" as unfitting.  The PEB recommended placement on the Temporary Disability Retired List (TDRL) with a 30-percent disability rating.  The PEB proceedings also stated "The Soldier's retirement is not based on disability from injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war..." and "The disability did not result from a combat related injury as defined in 26 U.S. Code 104."  He concurred with the PEB findings and waived a formal hearing.

7.  On 5 July 2002, he was retired and placed on the TDRL in the rank of SFC.  He completed 16 years, 11 months, and 19 days of creditable active service.


8.  On 5 February 2004, he was removed from the TDRL and permanently retired by reason of physical disability with a 30-percent disability rating.  

9.  On 6 July 2010, he filed a claim for CRSC based on his VA rating of
100-percent for depressive disorder.  By letter, dated 2 November 2010, HRC informed him his claim was denied and stated there was no evidence in his claim to show a combat-related event caused his condition.

10.  On 23 March 2011, he filed a request for reconsideration of his claim for CRSC based on his VA rating of 100-percent for PTSD.  By letter, dated 18 April 2011, HRC informed him his claim was denied and stated the letter from the medical provider repeated what the applicant stated to the provider, but it did not confirm how the stated event occurred and there was no new evidence in his claim to show a combat-related event caused his condition.  

11.  The applicant provides a VA Compensation and Pension Exam Report, dated 25 March 2003, wherein the examining physician stated the applicant had been treated while on active duty for alcohol dependence, depression, and suicidal ideation.  The physician also stated the applicant reported he had been diagnosed with PTSD symptoms that were related to his service in Kosovo.

12.  The applicant also provides a VA Rating Decision, dated 11 March 2004, wherein his service-connected disability of depressive disorder and PTSD, rated at 100-percent disabling, was considered permanent and total.

13.  CRSC, as established by section 1413a, Title 10, U.S. Code, as amended, provides for the payment of the amount of money a military retiree would receive from the VA for combat related disabilities if it wasn’t for the statutory prohibition for a military retiree to receive a VA disability pension.  Payment is made by the Military Department, not the VA, and is tax free.  Eligible members are those retirees who have 20 years of service for retired pay computation (or 20 years of service creditable for reserve retirement at age 60) and who have disabilities that are the direct result of armed conflict, especially hazardous military duty, training exercises that simulate war, or caused by an instrumentality of war.  Such disabilities must be compensated by the VA and rated at least 10% disabling.   For periods before 1 January 2004 (the date this statute was amended), members had to have disabilities for which they have been awarded the Purple Heart and are rated at least 10% disabled or who are rated at least 60% disabled as a direct result of armed conflict, specially hazardous duty, training exercises that simulate war, or caused by an instrumentality of war.  Military retirees who are approved for CRSC must have waived a portion of their military retired pay since CRSC consists of the Military Department returning a portion of the waived retired pay to the military retiree.  
14.  The 2008 National Defense Authorization Act (NDAA) was signed into law on January 28, 2008.  It expanded the eligibility of CRSC to include anyone receiving military retired pay.  This includes: Medical Chapter 61, Temporary Early Retirement Act (TERA) and TDRL retirees.  These new eligible components for CRSC went into effect 1 January 2008.  Medical and TERA retirees must still provide documentation that shows a causal link between a current VA disability and a combat related event.

DISCUSSION AND CONCLUSIONS:

1.  CRSC is specifically for those military retirees who have combat-related disabilities.  Incurring disabilities while in a theater of operations or in training exercises is not, in and of itself, sufficient to grant a military retiree CRSC.  The military retiree must show that the disability was incurred while engaged in combat, while performing duties simulating combat conditions, or while performing especially hazardous duties.

2.  In March 2002, a PEB determined the applicant's retirement was not based on disability from an injury or disease received in the line of duty as a direct result of armed conflict and his disability of depressive disorder complicated by alcohol dependence with symptoms of PTSD did not result from a combat-related injury.  He concurred with the PEB findings

3.  He has submitted evidence to show that his depressive disorder and PTSD are service related.  He appears to confuse service connection for VA purposes with CRSC eligibility.  These are not necessarily the same.  If they were the same, CRSC would be automatic for those military retirees with VA disability pensions.  Service connection for VA purposes means the VA has determined that the disability was incurred or aggravated during military service.  CRSC determinations require evidence of a direct, causal relationship to the military retiree’s VA rated disabilities to war or the simulation of war.

4.  In view of the foregoing, he is not entitled to the 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)                                         AR20110010771



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ABCMR Record of Proceedings (cont)                                         AR20110010771



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