IN THE CASE OF:	  

		BOARD DATE:	  6 June 2013

		DOCKET NUMBER:  AR20120019229 


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 U.S. Army Human Resources Command (HRC) decision to deny him combat-related special compensation (CRSC) for post-traumatic stress disorder (PTSD).

2.  The applicant states that on 6 February 2007 the Department of Veterans Affairs (VA) awarded him a 100% (percent) service-connected disability rating.  He has been treated at VA hospitals by VA mental health doctors who diagnosed him with PTSD.  

	a.  On 27 September 2004, he lost his job with the Department of Labor because he had PTSD.

	b.  He still has memories of flying in Vietnam as a door gunner.  He has over 700 hours of flight time in a UH-1 helicopter.  He has seen bodies blown open, heads and arms missing, and blood all over his helicopter.  The personnel at HRC who denied his request for CRSC have not seen this kind of combat.  

3.  The applicant provides:

* Citation for award of the Air Medal
* Certificate for award of the Air Medal (1st Award)
* Certificate for award of the Air Medal (2nd through 16th Award)
* VA Form 21-6796a (Rating Decision), dated 6 March 1995

* VA decisional documents, dated 8 March 1995, 5 April 2004, 13 April 2004, 23 November 2004, 21 June 2006, 6 February 2007, and 
12 February 2007
* Letters from the VA, dated 23 December 2004, 13 March 2007, and 
17 July 2008
* AHRC Form 249-2-E (Chronological Statement of Retirement Points), dated 6 March 2009
* Letter from the Transition and Separations Branch, HRC, dated 
22 February 2011
* Orders P02-941492, dated 22 February 2011
* Patient Health Journal Summary, dated 31 March 2011
* Retiree Account Statement, dated 3 May 2011
* DD Form 2860 (Claim for CRSC), dated 25 May 2011
* Letter from the CRSC branch, HRC, dated 28 September 2011

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.  After having had previous enlisted service in the U.S. Army Reserve (USAR), the applicant enlisted in the Regular Army on 2 October 1969.  He held military occupational specialty 67N (UH-1 Helicopter Repairman).  

3.  His DA Form 20 (Enlisted Qualification Record) and DA Form 2-1 (Personnel Qualification Record) show he was assigned to Vietnam from 30 March 1970 to 
29 March 19971 and served with the 92nd Aviation Company (Assault Helicopter) as a helicopter mechanic apprentice, door gunner, crew chief, and machine gunner from 6 April 1970 to 6 March 1971.

4.  He was honorably discharged for immediate reenlistment on 5 July 1971.  His DD Form 214 shows he completed 1 year, 9 months, and 20 days of net active duty, 1 year of which was credited as foreign service.

5.  After several reenlistments and a break in service he reenlisted in the USAR on 11 June 1980.  His DA Form 2-1 shows he was assigned to Headquarters, 91st U.S. Army Maneuver Training Command, Dublin, CA on 11 June 1980.  It appears he stayed at this location until the remainder of his military career.  

6.  His record shows medical treatment and profiles for various medical conditions; however, there is no indication that he ever complained of or was treated for PTSD or PTSD related symptoms.

7.  His record contains a chronological statement of retirement points which indicates he retired from the USAR on 10 June 1994.  He was credited with completing 22 years, 6 months, and 23 days of creditable military service.

8.  His record contains Orders P02-941492, issued by HRC, on 22 February 2011, which placed him on the retired list effective 27 April 2011.

9.  His record contains three denial letters from the CRSC branch at HRC, which show:

	a.  on 8 June 2011 and 20 July 2011, HRC stated they were unable to verify a combat-related disability for PTSD.  There was no evidence to verify that PTSD was caused by a combat-related event.  The VA conceded a stressor based upon his testimony alone, which does not qualify under the CRSC program guidance.  There must  be a direct and causal link between the disability and the documented combat-related event.

	b.  On 28 September 2011, HRC stated they were unable to verify a combat-related disability for PTSD.  This was the final disapproval of the previously requested CRSC requests.  No new evidence was provided to show a combat-related event caused the condition of PTSD.

10.  He provided the following documents which show he participated in sustained aerial flight, in support of combat ground forces in the Republic of Vietnam.

* Citation for award of the Air Medal
* Certificate for award of the Air Medal (1st Award)
* Certificate for award of the Air Medal (2nd through 16th Award)

11.  He provided numerous documents from the VA which show he was awarded a service-connected disability rating of 100% for PTSD.

12.  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 was not 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.  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.

DISCUSSION AND CONCLUSIONS:

1.  The CRSC criteria is specifically for military retirees who have combat-related disabilities.  Incurring disabilities while in a theater of operations 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.  Although the VA determined his condition was service-connected, for VA purposes this means the VA has determined the disability was incurred or aggravated during military service.  

3.  His service in Vietnam is not in question.  However, there is no evidence of record and he has not provided evidence which links specific and documented instances or occurrences during his Vietnam service to PTSD.  Without evidence to establish a direct, causal relationship of his PTSD to specific incidents which occurred during his service in Vietnam, there is an insufficient evidentiary basis for granting his 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)                                         AR20120019229





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ABCMR Record of Proceedings (cont)                                         AR20120019229



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