BOARD DATE:	  10 June 2014

		DOCKET NUMBER:  AR20130016212 


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, correction of his record to show he is eligible for Combat-Related Special Compensation (CRSC) based on the following diagnoses:

* organic brain syndrome with dementia
* loss of field of vision, left homonymous defect
* right upper extremity weakness
* right lower extremity weakness
* post-traumatic seizures with headaches

2.  The applicant states, in effect, that while he was working in an undercover combat operation, he was involved in an automobile accident and his injuries should be considered combat-related.  He further states:

* when a combat vehicle is involved in an accident during a combat mission, it is considered a combat-related accident and any injuries caused by the vehicle are also considered combat-related
* a DA Form 3713 (Data for Retired Pay) shows "Retired for disability caused by an instrumentality of war and incurred in the line of duty during a period of war" and this statement automatically qualifies him for CRSC
* he has been denied CRSC on 3 occasions and he could use the money because he does not know if he'll ever see any of his 18-year permanent retirement



3.  The applicant provides:

* correspondence from the CRSC Branch, U.S. Army Human Resources Command
* orders placing him on the Temporary Disability Retired List (TDRL)
* self-authored statements
* correspondence from the Defense Finance and Accounting Service (DFAS)
* DA Form 3713
* extracts of his Department of Veterans Affairs (VA) Rating Decisions
* self-authored covert combat operation summary outline
* self-authored accident summary
* Line of Duty correspondence
* Report of Investigation
* Report of Survey
* Arkansas Motor Vehicle Traffic Accident Report
* Vehicle Examination Checklist
* Memorandum from the U.S. Army Criminal Investigation Command, Fort Sill, OK, dated 19 March 1992

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 prior honorable enlisted service in the Regular Army and U.S. Army Reserve and a break in service, the applicant was appointed in the USAR as a chief warrant officer on 26 February 1988.

3.  On 9 June 1992, the applicant was involved in a single motor vehicle accident while working in an undercover status to interdict drug trafficking and use of illegal drugs by DoD military members and contract employees affiliated with Pine Bluff Arsenal in Arkansas.  Records show he had to be extracted from a Chevrolet S-10 pickup truck and he was unconscious and unresponsive when he arrived at a nearby civilian hospital.  He was responsive to pain and moved all extremities but did not respond to commands.  He spent 2 weeks in intensive care and was awake and verbally responsive on 11 June 1992.  He also had a period of amnesia that lasted for about 2 weeks after the accident.

4.  A Report of Investigation, dated 5 January 1993, shows the applicant sustained head injuries and that the accident was determined to be in the line of duty.

5.  A Medical Evaluation Board (MEB) Processing Notification memorandum, dated 16 September 1993, shows the applicant was:

* unable to perform any duties within the scope of his primary duty
* assigned duty at home pending an MEB

6.  On 24 November 1993, an MEB diagnosed him with the following as a result of his 9 June 1992 automobile accident and referred him to a physical evaluation board (PEB):

* organic personality disorder secondary to closed head injury, manifested by impaired higher intellectual function, impaired memory, especially immediate and delayed recall, impulse control problems, inappropriate actions, verbalizations, intolerance, anger, and disinhibition
* organic mood disorder manifested by depressed mood, poor attention and concentration, sleep and appetite disturbance, anhedonia, and periodic suicidal ideation
* hemibody painful dysthesias secondary to closed head injury
* paresis of right side of body
* homonymous field defects secondary to trauma to the right occipital area

7.  On 22 December 1993, the applicant concurred with the MEB findings.

8.  On 10 February 1994, a PEB conditionally adjudicated the applicant's case based on a pending review of his line of duty investigation.  The PEB recommended a 30 percent disability rating and placement on the TDRL.  The PEB further recommended that:

* his retirement was not based on a disability from injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a period of war as defined by law
* the disability did not result from a combat-related injury as defined in Title 10, U.S. Code, section 104
9.  The applicant disagreed with the PEB findings and submitted statements in his own behalf.

10.  On 2 March 1994, the PEB review the applicant's statements and determined no change to the original findings was warranted.

11.  The applicant was placed on the TDRL with a 30 percent disability rating effective 13 July 1994.

12.  His DA Form 3713 shows in:

* Item 16 (Type of Retirement and Finance Allotment Code Number) – the Temporary Disability block is checked
* Item 30 (Physical Disability Information Pertinent to the Dual Compensation Act) - the "yes" block is checked for "Retired for disability caused by an instrumentality of war and incurred in line of duty during a period of war"

13.  On 2 October 1995, the PEB reconvened and determined the applicant remained physically unfit to perform the duties required by his previous grade and military specialty.  The PEB recommended a 70 percent permanent disability rating.

14.  On 13 November 1995, the applicant concurred with the PEB findings.

15.  On 20 November 1995, the PEB findings and recommendations were approved for the Secretary of the Army.  

16.  On 7 December 1995, the U.S. Army Physical Disability Agency issued Orders D 254-09 permanently retiring him with a 70 percent disability rating effective 7 December 1995.  The orders show his disability:

* was not 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 incurred in the line of duty during a period of war as defined by law
* was not the result from a combat-related injury as defined in Title 16, U.S. Code, section 104

17.  On 27 October 2011 and on 20 January 2012, the CRSC Branch denied the applicant's request for CRSC.  

18.  On 12 December 2012, the CRSC Branch informed him they were unable to overturn previous adjudications of his CRSC claim and informed him he could appeal to this Board.  The letter informing him of the decision includes a summary of his final decision under CRSC.  He was given final disapproval on five conditions for the reasons shown below:

* organic brain syndrome with dementia – "No new evidence showing a combat-related event caused condition"
* loss of field vision, left homonymous defect – "No new evidence showing a combat-related event caused condition"
* right upper extremity weakness – "No new evidence showing a combat-related event caused condition"
* right lower extremity weakness – "No new evidence showing a combat-related event caused condition"
* post traumatic seizures with headaches – "No new evidence showing a combat-related event caused condition"

19.  He provides extracts of his VA rating decisions which show his disability ratings as follows:

* organic brain syndrome with dementia due to head trauma – 100 percent
* loss of field of vision, left homonymous defect – 30 percent
* right upper extremity weakness – 20 percent
* right lower extremity weakness – 10 percent
* post traumatic seizures with headaches – 10 percent

20.  He also provides a letter from DFAS informing him of his retired pay amount; a Report of Survey; Arkansas Motor Vehicle Traffic Accident Report; and a memorandum from the U.S. Army Criminal Investigation Command, Fort Sill, OK, outlining the scope of the covert operation.

21.  Coordination with DFAS on the applicant's Master Military Pay Account shows he is receiving retired pay which is off-set based on his VA compensation.

22.  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):

(1) as a direct result of armed conflict;

(2) while engaged in hazardous service;

(3) in the performance of duty under conditions simulating war; or

		(4)	through an instrumentality of war.

23.  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 that was incurred:

	a.  as a direct result of armed conflict;

	b.  while engaged in hazardous service;

	c.  in the performance of duty under conditions simulating war; or

	d.  through an instrumentality of war.

24.  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 under a, b, c, or d, above, using the definitions and criteria set forth in Attachment 1-1.  

25.  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 in 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 does not show nor has the applicant provided evidence showing an error in the CRSC Branch's decision to deny his CRSC claim.  

2.  The fact that a member 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 a combat-related determination for the purpose of awarding CRSC.  The military retiree must show that the disability was incurred while engaged in combat, while performing duties simulating combat conditions, or while performing specially hazardous duties such as parachuting or scuba diving.  There must be a definite causal relationship between the armed conflict and the resulting disability.  Documentary evidence is required.

3.  His conditions occurred in the line of duty but were not caused by combat or an instrumentality of war.  None of his conditions were incurred in a combat zone or during the performance of duty in combat-related operations as designated by the Secretary of Defense.  He was injured on a local road in the United States while driving a non-military specific vehicle.  He was retired as a result of a disability that did not occur in a combat zone or was combat-related which is correctly shown on his DD Form 214.  The fact that his conditions were incurred or were aggravated in the line of duty in time of war or national emergency is not sufficient to change the PEB findings.

4.  An instrumentality of war is a vehicle, vessel, or device designed primarily for military service and intended for use in such service at the time of the occurrence of the injury.  Most military vehicles, and presumably the types of vehicles the applicant rode in while performing his duties, are not designed primarily for military service.  The applicant's riding in an S-10 pickup truck did not subject him to a hazard peculiar to military service.  The applicant would have been subjected to the same hazard under similar circumstances in civilian pursuits.  Although it is unfortunate that his injuries worsened over the years, there is insufficient evidence in his case to establish that any of his conditions were the result of an instrumentality of war as defined by the Secretary of Defense.

5.  The available evidence in this case indicates the applicant was properly evaluated for his medical conditions by the PEB and he was afforded all of his due process rights during the evaluation of his case.  It is also evident that more than one PEB considered his arguments regarding his medical diagnosis and whether it was caused by an instrumentality of war and that the applicant was given proper consideration.

6.  The PEB findings show his disability was not the direct result of armed conflict, caused by an instrumentality of war or combat-related; however, his DA Form 3713 shows his disability was caused by an instrumentality of war.  The different rulings cannot be explained.  Nevertheless, the PEB findings are based on DOD guidance.

7.  Neither his service records nor the records he provides contain documentary evidence showing a definite causal relationship between armed conflict and any of his VA-rated disabilities.  Without such evidence, there is no basis for awarding him CRSC.  



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)                                         AR20130016212



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ABCMR Record of Proceedings (cont)                                         AR20130016212



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