IN THE CASE OF:  	  

		BOARD DATE:  15 January 2015	  

		DOCKET NUMBER:  AR20140008362 


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 award of Combat-Related Special Compensation (CRSC) based on a diagnosis of post-traumatic stress disorder (PTSD) that is combat-related.

2.  The applicant states he served in Southwest Asia (SWA) during Operation Desert Storm (ODS).  His unit deployed to Saudi Arabia and entered Iraq.  His unit came under attack by SCUD missiles while in King Khalid Military City (KKMC) and a member of his unit was killed.  On 7 November 2012, he was notified his request for CRSC was disapproved and that it was the final disapproval.

3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty), medical records, and Department of Veterans Affairs (VA) claim.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 15 June 1973.  He was awarded military occupational specialty 29W (Communications Maintenance Support Chief).  Through a series of reenlistments, he continued to serve on active duty and he attained the rank of sergeant first class/pay grade E-7.

2.  The applicant served in SWA from 16 December 1990 through 8 May 1991 and he was assigned to Headquarters and Headquarters Company (HHC), 34th Signal Battalion.
3.  His DD Form 214 shows he entered active duty this period on 15 March 1976 and he was honorably retired from active duty on 30 June 1993 based on sufficient service for retirement.  He completed 17 years, 3 months, and 16 days of total active service during this period; 2 years and 9 months of total prior active service; and 2 months and 21 days of total prior inactive service.

4.  On 18 October 2007, the CRSC Division, U.S. Army Human Resources Command (HRC), considered the applicant's claim for CSRC.

	a.  His service-connected disabilities were listed as:

* tendon inflammation bilateral, right lower extremity (right knee) – 10 percent (%)
* tendon inflammation bilateral, left lower extremity (left knee) – 10%

	b.  The applicant was informed that documentation supports evidence of injury while simulating war.

   c.  He was granted a total combat-related combined disability rating of 20% effective 1 January 2004.

5.  On 3 February 2009, the HRC CRSC Division considered the applicant's claim of service-related disabilities and a combat-related event.  He was informed that based on the documentation he provided, they were unable to find any evidence to support how the injury was caused by a combat-related situation.  He was also informed that the disabilities previously awarded remained unchanged.

6.  On 15 July 2011, the HRC CRSC Division reviewed the applicant's claim for CRSC.  He was informed that the disabilities previously awarded remained unchanged.  He was also informed that there was no evidence to verify his PTSD (determined by the VA to be service-connected with a rating of 10%) was caused by a combat-related event.  The applicant was provided justification and comments for the decision, as follows:  "The VA conceded a stressor based upon (the applicant's) lay testimony alone, which does not qualify for award under CRSC program guidance.  There must be a direct and causal link between the disability and a documented combat-related event."

7.  On 17 November 2011, the HRC CRSC Division reviewed the applicant's claim for CRSC, again.  He was informed that the disabilities previously awarded remained unchanged.  He was also informed that there was no new evidence provided to show a combat-related event caused his PTSD (VA rated at 10%).

8.  On 7 November 2012, the HRC CRSC Division reviewed all documentation the applicant submitted in support of his claim and they were unable to overturn the previous adjudications.  The applicant was informed that the disapproval is now considered final.

9.  In support of his application the applicant provides the following documents.

   a.  VA Form 21-0781 (Statement in Support of Claim for Service Connection for PTSD), dated 7 March 2013, in which the applicant described two incidents, summarized, as follows:

      (1) In February 1991, his unit came under SCUD missile attacks on at least three occasions and the Soldiers spent numerous hours in their Nuclear, Biological, and Chemical (NBC) protective gear at Mission Oriented Protective Posture (MOPP) Level 4.  On one occasion, they departed the KKMC area of operations to wait for confirmation that biological or chemical weapons had not been used.  During this period, he was in constant fear of a biological or chemical attack.

      (2) On 12 March 1991, a lieutenant he knew died shortly after the ground war ended and it had a substantial effect on him (and others in the unit).  There were rumors of suicide and accidental discharge of a weapon, but he doesn't' remember the final official determination as to the cause of death.

   b.  Letter from Dan M____, Doctor of Psychology, Licensed Marriage and Family Therapist (LMFT), Director, Applied Psychosocial Medicine, Southern Regional Area Health Education Center, Fayetteville, NC, dated 29 August 2012, that shows, "Based on my clinical interview and several psychotherapy sessions with (the applicant), it is my opinion that his diagnosis of PTSD is directly related to his combat experience in Saudi Arabia during the First Gulf War."

   c.  34th Signal Battalion Unit History that shows, in pertinent part: 

* HHC personnel flew into Saudi Arabia on 16 December 1990
* in early January 1991, SCUD missile alerts became more frequent and Soldiers learned to quickly don their NBC gear
* On 28 January 1991, HHC moved 100 miles north to its most forward deployed location
* the day after the ground war started (24 February 1991) elements of HHC crossed into Iraq
* after the ground war, HHC relocated outside KKMC and remained there until they redeployed to Germany

   d.  VA, St. Petersburg, FL, Rating Decision, dated 2 January 2008, including 33 pages of VA and military medical records (spanning the period 9 May 2000 to 18 September 2007) that show the VA denied the applicant's claim for service-connection for PTSD.
   
   e.  VA Regional Office, Winston-Salem, NC, Rating Decision, dated 27 June 2011, that shows the VA granted the applicant's claim for service-connection for PTSD with an evaluation of 10%, effective 5 October 2010; the date the VA received the applicant's claim to reopen benefits based on relaxed standards of stressor verification.

10.  CRSC, as established by 10 USC 1413a, as amended, provides for the payment of the amount of money a military retiree would receive from the VA for combat-related disabilities if it wasn't for the statutory prohibition for a military retiree to receive a VA disability pension.  Payment is made by the Military Department, not the VA, and is tax free.  Eligible members are retired veterans with combat-related injuries who meet all of the following criteria –

* Active, Reserve, or National Guard with 20 years of creditable service, permanent medical retiree or Temporary Early Retirement Authority retiree
* receiving military retired pay
* have a 10-percent or greater VA-rated injury
* military retired pay is reduced by VA disability payments (VA Waiver)
* must be able to provide documentary evidence that the injury was a result of one of the following –

* training that simulates war (e.g., exercises, field training, etc.)
* hazardous duty (e.g., aerial flight, diving duty, parachute duty, etc.)
* an instrumentality of war (e.g., combat vehicles, weapons, chemicals (Agent Orange), etc.)
* armed conflict (e.g., award of the Purple Heart)

11.  The Under Secretary of Defense for Military Personnel Policy provided policy guidance for processing CRSC appeals.  It states that in order for a condition to be considered combat-related, there must be evidence of the condition having a direct, causal relationship to war or the simulation of war.

12.  The HRC Special Compensation Branch webpage shows the CRSC Division is responsible for verifying a claimant's injuries are directly connected to combat or combat-related operations as defined by Department of Defense CRSC Program Guidance, dated 15 April 2004.  It provides criteria, terms, definitions, and explanations that apply to making combat-related determinations in the CRSC program.
	a.  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 or injury.

	b.  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.

	c.  A determination that a disability is the result of an instrumentality of war may be made if the disability was incurred in any period of service as a result of such diverse causes as wounds caused by a military weapon, accidents involving a military combat vehicle, injury or sickness caused by fumes, gases, or explosion or military ordinance, vehicles, or material.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be awarded CRSC because his unit came under SCUD missile attacks on several occasions during ODS and he spent numerous hours in NBC gear at MOPP Level 4 in January 1991; an officer died of unknown causes in March 1991; and the VA has granted him service connection for PTSD as directly related to his military service.

2.  The applicant's request was carefully considered.

   a.  The evidence of record (i.e., the unit's history) shows that SCUD missile alerts (emphasis added) became more frequent for his unit in January 1991. However, the unit history fails to show his unit actually came under SCUD missile attack(s).  Thus, the unit history does not support the statement the applicant submits to this Board regarding SCUD missile attacks.  In addition, the fact that he wore NBC gear at MOPP Level 4 for lengthy periods of time "in a state of fear" does not constitute an instrumentality of war.

   b.  The fact that an officer died of unknown causes after combat operations in Iraq had ended does not demonstrate a direct, causal relationship to war.

	c.  Thus, the events that the applicant experienced in SWA and that he offers in support of his request for CRSC fail to demonstrate a direct connection to combat or combat-related operations.
   
   d.  The letter from Dan M-----, Doctor of Psychology, LMFT, offers a conclusion that the applicant's PTSD is "directly related to his combat experience."  However, it does not provide any direct evidence to show his condition is directly connected to combat or combat-related operations.

3.  The VA granted the applicant service connection for his PTSD.  There is no evidence the VA determined his service connected conditions were combat-related or that there was a causal relationship between an instrumentality of war and any of his VA-rated disabilities.
 
4.  The applicant submitted evidence to the HRC CRSC Division in support of his claim for CRSC based on PTSD on three separate occasions.  In all three instances, his claims failed to show a combat-related event caused his injuries or medical condition.

5.  There is no evidence of record that shows a direct, causal relationship between an instrumentality of war being used in such service and the applicant's disability at the time of occurrence of the injury or that the disability was incurred incident to a hazard or risk of military service.

6.  The CRSC criteria are specifically for those military retirees who have combat-related disabilities.  The applicant's claim does not satisfy this requirement.

7.  Therefore, in view of all of the foregoing, there is an insufficient 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)                                         AR20140008362



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ABCMR Record of Proceedings (cont)                                         AR20140008362



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