IN THE CASE OF:	  

		BOARD DATE:  22 August 2013

		DOCKET NUMBER:  AR20120022347 


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 entitlement to Combat Related Special Compensation (CRSC). 

2.  The applicant states his post-traumatic stress disorder (PTSD) had its onset while on active duty and was determined to have been in line of duty.  His Physical Evaluation Board (PEB) decisional document states it is combat related. 

3.  The applicant provides copies of a 3 April 2012 CRSC denial letter, a 1 November 2007 PTSD line of duty (LOD) determination with supporting documents, a July 2012 Department of Veterans Affairs (VA) letter, deployment orders, and two DD Forms 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant, an Army National Guard sergeant with 23 plus years of service, had three periods of active duty since August 2003.  The last period of active duty commenced on 23 August 2006 and ended on 19 September 2009.

2.  During his last deployment the applicant served in the military occupational specialty 92F (Petroleum Supply Specialist). 

3.  A Fort Hood Resilience and Restoration Center LOD memorandum, dated 26 October 2007, states the applicant had been afforded the diagnoses of and treated for an adjustment disorder with mixed emotional features, adjustment disorder with anxiety and depressed mood, depression, and PTSD.  His records indicate he had combat trauma and his "symptoms of distress are related to his combat exposure."  His condition was considered to be in the line of duty. 

4.  On 1 November 2007, the Installation Management Agency, Fort Hood, approved a finding that the applicant's PTSD was in the line of duty.

5.  A 12 April 2009 Medical Evaluation Board found the applicant to be suffering from one medically unacceptable condition, PTSD, and five medically acceptable conditions--chronic headaches, mild obstructive sleep apnea, right foot pain, bilateral mild cataracts, and bilateral hearing loss.  The MEB opined that the applicant was unfit for further service under the provisions of Army Regulation 40-501 (Standards of Medical Fitness) and referred him to a PEB for consideration for separation from the military service.  The DA Form 3947 (Medical Evaluation Board Proceedings) shows the MEB determined his diagnosis of PTSD was incurred while entitled to base pay, had not existed prior to service (EPTS), and was permanently aggravated by service.  

6.  On 5 June 2009, a PEB found the applicant unfit for duty, based on his PTSD, and placed him on the Temporary Disability Retired List (TDRL).  The PEB stated:

"Post -Traumatic Stress Disorder (PTSD) requiring psychotropic medication and outpatient treatment.  Psychiatrist attributes PTSD symptoms to combat stressors experienced in Iraq.  Commander indicates that soldier has memory difficulties and requires frequent reminders to complete simple tasks.  He does not function effectively without direction and cannot independently perform within his duty MOS.  Based on current information, occupational and social impairment would be rated at 50% with reduced reliability and productivity with difficulty in establishing and maintaining effective work relationships."

The PEB stated that the applicant's PTSD was a result of a mortar attack in Iraq.

7.  The attending physician completing the applicant's 20 August 2009 Mental Health History and Medical Progress Note found that the applicant met the criteria for PTSD.  Under History of Current Illness the applicant related:

"He did mostly Guard duty, fuel protection, fuel detail while there. He was stationed at some small bases - Camp Ramadi and Camp Normandy and claims that there were frequent rocket attacks and at one time mortar hit about 10-15 feet from him.  He was extremely scared and felt he was going to be hit.  Since he was on guard duty and did not have orders to leave he felt that he would be hit.  He had similar experiences in Afghanistan.  He feels the mortar attacks had an impact on him and since then he has had frequent headaches and difficulty with his memory.  He claims some people died in the attacks.  He was in constant fear of dying. At one time his right lung collapsed and he had to receive emergency treatment."

8.  The applicant was retired on 16 September 2009 and placed on the TDRL.  He had 7 years, 3 months, and 24 days of active duty with 19 years, 3 months, and 27 days of inactive service.  He is shown to have served in Iraq in support of Operation Iraqi Freedom from 23 August 2006 through 11 August 2007 as well as an earlier period of deployment in Afghanistan from 5 May 2005 through 8 May 2006.

9.  His retirement orders state: 

* "Disability is based on injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurring in the line of duty during a period of war as defined by law: Yes"
* "Disability resulted from a combat related injury as defined in 26 USC 104: Yes."

10.  Effective the day after his retirement, 19 September 2009, the VA granted the applicant service connection for several conditions and ratings including a 50 percent evaluation for PTSD .

11.  On 18 February 2010, the U.S. Army Human Resources Command - CRSC Branch denied the applicant's original request for CRSC stating:

"Your claim for Combat-Related Special compensation (CRSC) did not provide us with the necessary evidence to properly adjudicate your claim.  To award a condition as combat-related you must provide this office with official documentation that shows how each condition is combat-related as defined by CRSC program guidance.  For more information on what is considered to be a combat-related condition, visit the CRSC website at www.crsc.army.mil."

12.  The VA reevaluated the applicant and granted him an increased disability evaluation for his PTSD to 100 percent and granted him a noncompensable evaluation for traumatic brain injury with headaches, effective 1 February 2010.  

13.  The applicant reapplied for CRSC with the submission of the additional VA evaluation showing his PTSD symptoms had worsened and he was being rated at a 100 percent level for this condition.  He again submitted a copy of his PEB.

14.  On 22 March 2011, the CRSC Branch again denied his request for CRSC stating:

"You requested reconsideration for PTSD due to new evidence which links your PTSD to a combat-related event.  The documents you have provided show no evidence to link this condition to a combat-related event.  The VA has not conceded a stressor caused by a specific combat-related, simulating war, or instrumentality of war event.  Please provide evidence on how your PTSD is linked to a combat-related event.  To award a condition as combat-related you must provide this office with evidence that shows how each condition is combat-related as defined by CRSC program guidance.  For more information on what is considered to be a combat-related condition, visit the CRSC website at www.crsc.army.mil."

15.  On 3 April 2012, the CRSC Branch, HRC again denied his claim.  It was stated that they were unable to verify any disabilities as combat-related disabilities, stating for each diagnosis "no new evidence provided to show combat-related event caused condition."  

16.  Title 26, U.S. Code (USC) section 104, defines a "combat-related injury" as a personal injury or sickness:  (A) which is incurred – (i) as a direct result of armed conflict, (ii) while engaged in extra-hazardous service, or (iii) under conditions simulating war; or (B) which is caused by an instrumentality of war.

17.  Department of Defense Instruction (DODI) 1332.38 (Physical Disability Evaluation) provides the following definitions at:

	a.  E3.P5.1.1.  Incurred in Combat with an Enemy of the United States (5 U.S.C. 8332)(Reference (c)).  The physical disability is a disease or injury incurred in line of duty in combat with an enemy of the United States.

	b.  E3.P5.1.2. Armed conflict.  The physical disability is a disease or injury incurred in the line of duty as a direct result of armed conflict.  The fact that a member may have incurred a disability during a period of war or in an area of armed conflict, or while participating in combat operations is not sufficient to support this finding.  There must be a definite causal relationship between the armed conflict and the resulting unfitting disability.

	c.  E3.P5.1.2.1. Armed conflict includes a war, expedition, occupation of an area or territory, battle, skirmish, raid, invasion, rebellion, insurrection, guerrilla action, riot, or any other action in which Service members are engaged with a hostile or belligerent nation, faction, force, or terrorists.

	d.  E3.P5.2.2. Combat-related.  This standard covers those injuries and diseases attributable to the special dangers associated with armed conflict or the preparation or training for armed conflict.  A physical disability shall be considered combat-related if it makes the member unfit or contributes to unfitness and was incurred under any of the circumstances listed in paragraphs E3.P5.2.2.1 through E3.P5.2.2.4. 

18.  Title 10, USC, subsection 1413a, states CRSC provides military retirees monthly compensation that replaces their VA disability offset.  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:

* Training that simulates war (e.g., exercises, field training) 
* Hazardous duty (e.g., flight, diving, parachute duty) 
* An instrumentality of war (e.g., combat vehicles, weapons, Agent Orange) 
* Armed conflict (e.g., gunshot wounds (Purple Heart), punji stick injuries)

Such disabilities must be compensated by the VA and rated at least 10 percent 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.

19.  The 2008 National Defense Authorization Act (NDAA) expanded CRSC eligibility to include Chapter 61 medical retirees with a 30 percent or greater disability rating.  Qualified military retirees must be an active duty or Reserve retiree with 20 or more years of creditable service or a Title 10 USC Chapter 61 medically retiree, be receiving military retired pay, have a 10 percent or greater VA rating for a combat related injury, and have their military retired pay reduced by receipt of or entitlement to VA disability payments.  

20.  The website https://www.hrc.army.mil/site/crsc/documents/ CRSC2_Guidance.pdf (Combat-Related Special Compensation - Combat-Related Special Compensation (CRSC) - Section 1413a,Title 10, United States Code, As Amended - Revised Program Guidance January 2004) states:
"Military retirement decisions may be used to determine whether such
disabilities are combat-related."
DISCUSSION AND CONCLUSIONS:

1.  For the purpose of CRSC, the fact that a member may have incurred a disability during a period of war, in an area of armed conflict, or while participating in combat operations is not, in and of itself, sufficient to support a combat-related determination.  There must be a definite causal relationship between the armed conflict and the resulting unfitting disability.  The military retiree must show the disability was incurred while engaged in combat, while performing duties simulating combat conditions, or while performing especially hazardous duties.  

2.  The applicant’s PEB decisional document states his PTSD was combat incurred due to a mortar attack.  

3.  The available mental health record relates a history of the applicant being present during mortar attacks.

4.  His discharge order states his disability is based on injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurring in the line of duty during a period of war; and the disability resulted from a combat-related injury as defined in 26 United States Code section 104.  

5.  None of the three CRSC decisional documents address the applicant’s mental health record, the PEB determination, or the references on his separation orders that his PTSD was determined to be a combat-related injury.

6.  While the specific date and location of the mortar attack is not denoted in the available records it is specifically referenced in at least two official documents that state it was a precipitating cause in the development of or aggravation of the applicant's PTSD.  Based on this factor it is reasonable to accept it as sufficient evidence to meet the requirements for award of CRSC.

BOARD VOTE:

____X___  ____X___  ___X__ _  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing his condition of PTSD meets the requirements for award of CRSC and paying him the appropriate entitlements.



      _______ _  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)                                         AR20120022347





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ABCMR Record of Proceedings (cont)                                         AR20120022347



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