IN THE CASE OF:	  

		BOARD DATE:	  7 January 2015

		DOCKET NUMBER:  AR20140007411 


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 payment of combat-related special compensation (CRSC).

2.  The applicant states:

* he has been denied CRSC three times
* his injuries are all combat-related
* he recently had his DD Form 214 (Certificate of Release or Discharge from Active Duty) corrected to show his actual dates of combat time
* he is submitting medical documentation showing he has depression which is directly related to his post-traumatic stress disorder (PTSD)
* his leave and earnings statements (LES's) show he received imminent danger pay
* his records clearly show he served in combat and his disabilities are service connected

3.  The applicant provides:

* DD Form 214
* DD Form 215 (Correction to DD Form 214)
* letters from doctors, his ex-wife, and first sergeant
* LES's
* CRSC denial letters
* 61 pages recounting his personal combat experiences

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 enlisted in the Regular Army on 7 August 1979.  He served as a chemical operations specialist in Southwest Asia from 12 December 1990 to 5 May 1991.  On 31 August 1999, he retired in the rank of staff sergeant.

3.  There are no medical documents in the available records.

4.  He provided a letter from a psychologist at the Department of Veterans Affairs (VA), dated 20 May 2009, which states he is receiving mental health services for PTSD.  He contends the applicant is disabled by the symptoms of PTSD and the PTSD is clearly service connected.

5.  He provided a letter from his first sergeant during the time in question, dated 2 July 2009, which states the applicant served in the Gulf War, he had changed after his deployment, and he displayed early signs and symptoms of PTSD.

6.  He provided a letter from his ex-wife, a psychologist, dated 25 July 2009, which states that prior to the applicant's deployment he was a loving and caring husband and father.  After returning from Operations Desert Shield/Desert Storm it was immediately obvious that something had changed in him.  He had nightmares, was cranky, and unhappy.  He had obvious signs of depression.  The applicant filed for divorce; this was not something she wanted.

7.  On 3 August 2010, the U.S. Army Human Resources Command CRSC Branch reviewed his claim for CRSC and was unable to verify the following conditions as combat-related disabilities:

* bronchial asthma – 10 percent
* multiple joint pain involving right hip, shoulders, knees, and lumbosacral spine – 10 percent
* dyspepsia – 10 percent
* hypothyroidism – 10 percent
* myofascial pain – 10 percent
* major depressive disorder – 50 percent
* plantar fasciitis, left foot –0 percent
* residuals scar, right leg –10 percent
* scars, right heel – 10 percent
* tinnitus – 10 percent

8.  On 10 December 2010, the U.S. Army Human Resources Command CRSC Branch reviewed his claim for CRSC and verified his medical condition (fibromyalgia – 10 percent) as combat-related, but was unable to verify the following conditions as combat-related disabilities:

* asthma –10 percent
* dyspepsia –10 percent
* hypothyroidism –10 percent
* myofascial pain –10 percent
* major depressive disorder – 50 percent
* allergic rhinitis – 0 percent
* residual scar, right leg –10 percent
* plantar fasciitis, left foot – 0 percent
* scars, right heel –10 percent
* residual scar, right forearm – 0 percent
* tinnitus – 10 percent

9.  On 14 February 2011, the U.S. Army Human Resources Command CRSC Branch reviewed his claim for CRSC and was unable to find justification to reverse the previous decisions.  The CRSC Branch verified his medical condition (fibromyalgia – 10 percent) as combat-related, but was unable to verify the following conditions as combat-related disabilities:

* asthma –10 percent
* gastritis –10 percent
* hypothyroidism –10 percent
* limited motion of the jaw – 10 percent
* major depressive disorder – 50 percent
* residuals of right foot injury –10 percent
* residuals of left foot injury – 0 percent
* scars – 10 percent
* tinnitus – 10 percent

10.  He provided a letter from a psychologist, dated 9 April 2014, which states the applicant is being treated for depression, anxiety, and PTSD symptoms.  He recommended approval of the applicant's request for CRSC.

11.  CRSC, as established by Title 10, U.S. Code, section 1413a, as amended, states 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, specially 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-percent disabling.  CRSC benefits are equal to the amount of VA disability compensation offset from retired pay based on those disabilities determined to be combat-related.

DISCUSSION AND CONCLUSIONS:

1.  The applicant disagrees with the CSRC determination that his disabilities were not combat-related.

2.  CRSC 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 CRSC to a military retiree.  The military retiree must show the disability was incurred while engaged in combat, while performing duties simulating combat conditions, or while performing specialty hazardous duties.

3.  The applicant submitted evidence showing his disabilities were service related.  However, he has not submitted any evidence showing these conditions are combat-related.  The fact that he was in a combat theater of operations is insufficient, in and of itself, to warrant approval of CRSC.

4.  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 the applicant's VA-rated disabilities to war or the simulation of war, there is insufficient basis in which to grant his request.



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 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)                                         AR20140007411



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140007411



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1