IN THE CASE OF:	  

		BOARD DATE:	    14 January 2014

		DOCKET NUMBER:  AR20130007756 


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 is eligible for Combat-Related Special Compensation (CRSC) based on service-connected disability for Post-Traumatic Stress Disorder (PTSD).

2.  He states he was awarded a 50 percent (%) disability rating for PTSD by the Department of Veterans Affairs (VA).  He maintains the rating was awarded based on the factors established by the CRSC program, but his request was denied by the U.S. Army Human Resources Command (HRC).  He states he appealed the decision and justified its approval under all three criteria: combat, instrumentality of war, and hazardous duty.  He also states he was in the 3rd Infantry Division (3ID) when the unit was awarded the Valorous Unit Award for direct contact with the Republican Guard.  He continues by offering a brief synopsis of his military service and explains that he was exposed to Sarin and a wide range of contaminants in the Gulf.  Specifically he states:

* During Desert Storm he was a platoon sergeant for a reinforced combat engineer platoon 
* He was in close combat with Iraqi forces and the Republican Guard
* He was in battle with the Tewakana Republican Guard and entered the forward edge of that force
* His unit led the breach through enemy minefields while under fire
* Under his direction, the unit had to dig and bulldoze hundreds possibly thousands of dead bodies into mass graves
* During clearing operations, he was almost blown up by an improperly deployed C-4 satchel charge resulting in a hearing loss and permanent tinnitus
* During his entire military career he was on hazardous duty either with parachute or demolition duty 
* He was almost killed twice during the 70's and sustained minor injuries to include temporary paralysis in the field
* He was subjected to "much" training that met the context of "an instrumentality of war"

3.  He provides:

* Self-authored statements
* VA Rating Decisions, dated 9 June 2004 and 5 November 2012
* DD Form 214 (Certificate of Release or Discharge from Active Duty) with DD Form 215 (Correction to DD Form 214)
* HRC letter, dated 19 March 2013
* Commander's Certificate of Achievement, dated 20 June 1984
* Reserve Component Special Forces Correspondence Subcourse Completion Notice
* Orders 313-27, dated 8 November 2004
* Page 14 of General Orders Number 27

CONSIDERATION OF EVIDENCE:

1.  The applicant is a retired Army master sergeant who initially enlisted in the Regular Army on 6 April 1972.  He served in Southwest Asia from 23 December 1990 to 1 May 1991.  He held bridge crewmember and combat engineer senior sergeant military occupational specialties at the time of his retirement on
30 September 1994.  He completed 23 years, 3 months, and 1 day of creditable active service and retired by reason of sufficient service for retirement.

2.  The VA Rating Decision, dated 9 June 2004, shows their decision and the effective date he received the following service-connected, Gulf War incurred ratings:

* Undiagnosed illness manifested by memory loss, 30%, 10 October 2001
* Left shoulder surgical scar, 10%, 15 October 2003
* Status post left shoulder rotator cuff tear, 10%, continued
* Bilateral foot condition, deferred

3.  The VA Rating Decision, dated 5 November 2012, shows the applicant was reevaluated and received the following service-connected, Gulf War incurred ratings:

* Sleep apnea, 50%
* PTSD, 50%
* Post left shoulder rotator cuff tear, increased from 10% to 20%
* Chronic left elbow epicondylitis, 10% 

4.  On 19 March 2013, HRC responded to the applicant's request for CRSC.  The HRC official stated that after reviewing all documentation in support of the applicant's claim, they were unable to overturn the previous adjudication.  The official found there was no new evidence provided to link his requested conditions to a combat-related event.  The HRC representative stated that this disapproval was now considered final.

5.  The applicant's service medical records are not available for review and his record is void of any medical evidence or a line of duty investigation indicating he was injured in any form during training or while deployed in support of Operations Desert Shield/Desert Storm.

6.  Title 10, U.S. Code, section 1413a provides the statutory authority for CRSC.

	a.  It states the Secretary of Defense shall prescribe procedures and criteria under which a disabled uniformed services retiree may apply to the Secretary of a military department to be considered to be an eligible combat-related disabled uniformed services retiree.

	b.  It defines combat-related disability as a disability that is compensable under the laws administered by the Secretary of Veterans Affairs and that is attributable to an injury for which the member was awarded the Purple Heart; or was incurred (as determined under criteria prescribed by the Secretary of Defense):

* as a direct result of armed conflict
* while engaged in hazardous service
* in the performance of duty under conditions simulating war
* through an instrumentality of war

7.  Department of Defense (DOD) guidance on CRSC states a combat-related disability is a disability with an assigned medical diagnosis code from the VA Schedule for Rating Disabilities (VASRD) that was incurred:

* as a direct result of armed conflict
* while engaged in hazardous service
* in the performance of duty under conditions simulating war
* through an instrumentality of war

8.  The DOD guidance states the burden of proof that a disability is combat-related rests with the applicant and members will be required to provide copies of documents in their possession to the best of their ability.  The Military Departments will determine whether a disability is combat-related using the definitions and criteria set forth in Attachment 1-1.

9.  Attachment 1-1 states the following criteria, terms, definitions, and explanations will apply to making combat-related determinations in the CRSC program. 

	a.  Direct Result of Armed Conflict - The disability is a disease or injury 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 an area of armed conflict or while participating in combat operations is not sufficient to support a combat-related determination.  There must be a definite causal relationship between the armed conflict and the resulting disability. 

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

		(2)  Armed conflict may also include such situations as incidents involving a member while interned as a prisoner of war or while detained against his or her will in custody of a hostile or belligerent force or while escaping or attempting to escape from such confinement, prisoner of war, or detained status.

	b.  While Engaged in Hazardous Service - Such service includes, but is not limited to, aerial flight, parachute duty, demolition duty, experimental stress duty, and diving duty.  A finding that a disability is the result of such hazardous service requires that the injury or disease be the direct result of actions taken in the performance of such service.  Travel to and from such service, or actions incidental to a normal duty status not considered hazardous are not included.

	c.  In the Performance of Duty Under Conditions Simulating War - In general this covers disabilities resulting from military training, such as war games, practice alerts, tactical exercises, airborne operations, leadership reaction courses, grenade and live fire weapons practice, bayonet training, hand-to-hand combat training, rappelling, and negotiation of combat confidence and obstacle courses.  It does not include physical training activities such as calisthenics and jogging or formation running and supervised sport activities.

	d.  Instrumentality of War - Incurrence during an actual period of war is not required.  However, there must be a direct causal relationship between the instrumentality of war and the disability.  The disability must be incurred incident to a hazard or risk of the service.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant submitted evidence to the HRC CRSC Branch in support of his claim for CRSC on several occasions.  In all instances, his requests failed to show a combat-related event caused his injuries or medical conditions.

2.  There are no records or other evidence that show his injuries and resultant medical conditions were the result of a combat-related event.

3.  The CRSC criteria 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 hazardous duties such as parachuting or scuba diving.

4.  The VA Decision shows he was awarded a 50% disability rating for sleep apnea and PTSD, 10% rating for chronic left elbow epicondylitis, and his rating for post left shoulder rotator cuff tear was increased to 20%.  Service-connection for VA purposes means the VA has determined 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.  

5.  Without evidence to establish a direct, causal relationship to his VA-rated disabilities to actual combat, 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)                                         AR20130007756



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ABCMR Record of Proceedings (cont)                                         AR20130007756



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