IN THE CASE OF:	   

		BOARD DATE:	  27 May 2014

		DOCKET NUMBER:  AR20130014462 


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, combat-related special compensation (CRSC) for post-traumatic stress disorder (PTSD) and obstructive sleep apnea.

2.  The applicant states, in effect, that her Department of Veterans Affairs (VA) award of service connection for PTSD and sleep apnea shows that these conditions were incurred while she was on active duty in Bosnia.  She was serving as a medic in Bosnia when a fellow Soldier committed suicide and died while she was rendering aid.  Her sleep apnea is secondary to her PTSD.

3.  The applicant provides copies of her DD Form 214 (Certificate of Release or Discharge from Active Duty), 13 May 2013 CRSC denial letter, four VA Rating Decisions (dated 2003, 2005, 2010 and 2012), 13 pages of VA medical records, Operation Danger Guard deployment orders, a Noncommissioned Officer (NCO) Evaluation Report (NCOER),  three award certificates, and a partial U.S. Army Criminal Investigation Command (CID) investigation report. 

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 served on active duty from 27 July 1979 through 31 July 2003, 24 years and 7 days, before retiring based on longevity.

3.  Her period of service included service in Bosnia from 1 April through 1 October 1997.

4.  The 4 August 1997 CID report (only three pages are provided) shows an NCO, serving in Bosnia at the same location as the applicant, had committed suicide by shooting himself in the head with an M-16.  The incident occurred in the motor pool.  Except for the victim, all names of personnel involved have been redacted.

5.  The VA granted the applicant disability compensation for 13 conditions on 25 August 2003 and 2 additional conditions on 11 March 2005, including service connection for her hysterectomy and residuals of a right ulnar nerve surgery. 

6.  In January 2004, she was granted CRSC at a 10 percent rating for the residuals of a right ulnar nerve surgery.

7.  On 13 February 2009, the VA denied her request for service connection for PTSD as no verifiable stressor was found.  It was also noted that her service medical records did not show any symptoms of any mental health issues.  She appealed this decision.  

8.  On 6 December 2010, the VA granted the applicant disability benefits for PTSD citing the 4 August 1997 suicide as a stressor.  The award of disability benefits was based on VA treatment records commencing in late 2008 and a current VA examination.  

9.  The applicant again reopened her VA disability claim and was granted service connection for obstructive sleep apnea on 23 March 2012. 

10.  The applicant reopened her CRSC claim requesting consideration for additional combat-related disability ratings for her PTSD, hysterectomy, and sleep apnea.  This request was denied.  On 22 May 2013, her request for reconsideration was denied.  

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

12.  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. 

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.  The applicant's award of service connection and VA disability benefits does not in and of itself show entitlement to CRSC. 

2.  The applicant's PTSD stressor (and therefore sleep apnea secondary to PTSD) is shown as the suicide of a fellow Soldier.  This incident, combined with the post-service medical evaluations, was sufficient for the VA to grant service connection; however, the witnessing of a fellow Soldier's death by their own hand does not meet any of the eligibility criteria for award of a CRSC rating. 

3.  Therefore, entitlement to CRSC for these conditions has not been established.

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)                                         AR20130014462





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ABCMR Record of Proceedings (cont)                                         AR20130014462



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