BOARD DATE:	  12 April 2012

		DOCKET NUMBER:  AR20110018955 


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 an increase in his percentage of Combat-Related Special Compensation (CRSC) based on combat-related Post Traumatic Stress Disorder (PTSD).

2.  The applicant states the Department of Veterans Affairs (VA) recently increased his service-connected disability rating from 60% to 100% based on PTSD incurred as a result of his service in Vietnam.

	a.  He states that in August 1969 his best friend had just relieved him of duty and assumed the applicant's position on a piece of earth moving equipment.  Shortly thereafter, their unit was ambushed by Viet Cong insurgents.  A B-40 rocket hit the equipment killing his best friend (Freddie S----) and the platoon sergeant (Jessie T----).

	b.  The applicant was unable to return fire because he had left his rifle on the equipment and he could not retrieve it due to the incoming fire.  He regrets that he could not save his best friend and the platoon sergeant.  He adds he could only lay on the ground hiding behind the equipment until the firing ceased.

	c.  He recently received a copy of a psychiatric evaluation that provides evidence the traumatic experience occurred during combat and that his PTSD is combat-related.

3.  The applicant provides a copy of his DA Form 2-1, Part II (Personnel Qualification Record), two VA rating decisions, a CRSC decision, information from the Vietnam War Memorial, and an email message.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army (RA) on 9 August 1968.  He was awarded military occupational specialty 62E (Tractor Operator).

3.  The applicant's DA Form 2-1 shows in:

	a.  item 5 (Oversea Service):  Vietnam from 13 January 1969 through 12 July 1970; and

	b.  item 35 (Record of Assignments):

* Water Distribution Operator, Company D, 577th Engineer Battalion, from 8 January to 22 March 1969
* Water Distribution Operator, Company D, 589th Engineer Battalion, from 23 March to 30 June 1969
* Motor Scraper Operator, Company D, 589th Engineer Battalion, from
1 July 1969 to 12 July 1970

4.  The applicant served continuously on active duty until he was honorably retired as a sergeant (E-5) from the RA for length of service on 31 August 1988. He was advanced on the retired list to staff sergeant (E-6) effective 9 August 1998.

5.  A review of the applicant's military service records failed to reveal any evidence that he was awarded the Purple Heart.

6.  The applicant's Enlisted Evaluation Reports show he received outstanding and excellent ratings throughout the entire period of his military service.

7.  The applicant's Army medical treatment records are not available.

8.  In support of his application, the applicant provides the following documents:

	a.  VA Rating Decision, dated 10 September 2009, that shows evaluation for service-connected PTSD (previously rated at 10% disabling) was increased to 100% effective 6 February 2009.  He was assigned a 100% evaluation because the VA determined he has a total occupational and social impairment due to persistent delusions and hallucinations.

	 	(1)  In his VA claim, the applicant provided a self-authored letter, dated
13 May 2009, and recounted the attack by the Viet Cong, indicating it occurred in June 1969.

	 	(2)  He provided a Treatment Summary, dated 15 January 2008, from Doctor Michael B. R---, Clinical Psychologist, that shows he was diagnosed with an Adjustment Disorder, Mixed Anxiety, and Depressed Mood in August 2001.  On 15 October 2007, he returned for treatment after relating to VA medical doctors and a VA psychologist his experiences in Vietnam, particularly the attack by the Viet Cong in (June) 1969.  He noted the "prognosis for (the applicant's) eventual psychological recovery, although somewhat guarded, nonetheless can be considered both viable and positive in the long run."

	 	(3)  He also provided a letter from Doctor Robert W----, undated (circa 2008), that shows the applicant reported the symptoms for PTSD began in 1969.  The diagnoses are PTSD and Alcohol Abuse and the prognosis for the psychiatric condition is poor.

	b.  A letter from the applicant to the CRSC Branch, U.S. Army Human Resources Command (USA HRC), Fort Knox, Kentucky, dated 29 March 2010, that shows the applicant requested reconsideration of his claim for CRSC for PTSD and special monthly compensation for the housebound as a result of his PTSD.  He provided copies of the recent VA rating decision and the letter from his psychologist.

	c.  USA HRC, Fort Knox, Kentucky, memorandum, dated 2 August 2010, that shows all the evidence the applicant provided was reviewed; however, there was insufficient justification to reverse the previous decisions made on the applicant's CRSC.


	 	(1)  The following conditions were verified as combat-related:

* Complete Atrophy of the Testis
* Diabetes Agent Orange Presumptive
* Malignant Growth Genitourinary Area

	 	(2)  The CRSC Branch was unable to verify as a combat-related disability:

* Hypertension Arteries
* Impaired Hearing Ears
* PTSD
* Tinnitus Ears

	d.  Two extracts from the Vietnam War Memorial that show:

* Specialist Five Freddie M. S---- (Company D, 589th Engineer Battalion) was killed in action on 8 August 1969 as a result of artillery, rocket, or mortar fire
* Staff Sergeant Jessie J. T---- (589th Engineer Battalion) was killed in action on 8 August 1969 as a result of artillery, rocket, or mortar fire

	e.  An email message from Mr. Andy S--- written to the applicant, dated
10 December 2008, in which he introduces himself to the applicant, explains that he is the cousin of Freddie S----, and asks for any information the applicant may be able to provide him regarding his cousin.  (The applicant did not provide a copy of his response to Mr. S-----.)

9.  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.

   a.  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 a disability that is compensable under the laws administered by the Secretary of VA (i.e., at least 10% disabling) and that:

    	(1)  is attributable to an injury for which the member was awarded the Purple Heart; or

    	(2)  was incurred as a direct result of armed conflict; while engaged in hazardous service; in the performance of duty under conditions simulating war; or through an instrumentality of war. 
   b.  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.  Payment is made by the Military Department, not the VA, and is tax free.

10.  The Under Secretary of Defense, Military Personnel Policy, has provided policy guidance on the processing of CRSC appeals.  In that guidance it was stated that in order for a condition to be considered combat-related, there must be evidence of the condition having a direct, causal relationship to war or the simulation of war.

11.  The Military.com website at: www.military.com/benefits/ shows (in part) that for the purposes of CRSC:

   a.  the disability must have been incurred in the line of duty as a direct result of armed conflict (the fact that a member incurred the disability during a period of war or while participating in combat operations is not sufficient);

   b.  hazardous duty includes aerial flight, parachute duty, demolition duty, experimental stress duty, and diving duty; and
   
   c.  an instrumentality of war includes combat vehicles, weapons, Agent Orange, etc., and there must be a direct causal relationship between instrumentality of war and the disability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant has submitted documentation showing he was treated for a disability that he contends is combat-related.  The documents submitted by the applicant indicate the VA determined he has service-connected conditions, including PTSD.  He states he suffers from PTSD as a result of his combat experience in the Republic of Vietnam while serving in the U.S. Army.  However, the available evidence is insufficient to establish that this medical condition was the result of a combat-related event.

2.  The evidence of record shows the VA awarded the applicant a rating of 100% service-connected disability (emphasis added) for PTSD.  However, this determination alone does not meet the requirement to establish eligibility for CRSC.

3.  On 2 August 2010, the USA HRC denied the applicant's request for CRSC because there was no evidence to show that a combat-related event (emphasis added) caused his PTSD.
4.  Although the applicant and medical doctors have recently attested to his condition, it does not establish a direct, causal relationship to the applicant's
VA-rated disabilities to war or the simulation of war.

5.  There is no evidence the applicant's disability was the direct result of armed conflict, hazardous duty, or as an instrumentality of war (emphasis added).

6.  Therefore, without contemporaneous records or evidence to establish a direct, causal relationship to the applicant's VA rated disabilities to war or the simulation of war, there is an insufficient basis on which to grant his request.

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)                                         AR20110018955



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ABCMR Record of Proceedings (cont)                                         AR20110018955



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