IN THE CASE OF:	  

		BOARD DATE:	  7 April 2015

		DOCKET NUMBER:  AR20140013801 


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 military records to show his post-traumatic stress disorder (PTSD) and a peptic ulcer were service-connected or combat-related for award of Combat-Related Special Compensation (CRSC).

2.  The applicant states:

   a.  In effect, CRSC for the above medical conditions should be approved and granted.  All of the evidence in support of his claim was not properly researched and considered.  He was approved for CRSC for degenerative joint disease in 2008, for hazardous service.  He submitted a new claim for CRSC for his service-connected PTSD and ulcer condition which were denied.  He is requesting that the Boards review all of the evidence and grant his claim for PTSD and his ulcer condition under CRSC for hazardous service and/or simulating war.  

   b.  In July 1975, he voluntarily enlisted in the U.S. Army for 4 years.  He wanted to be an Army paratrooper.  Upon graduating from airborne school at Fort Benning, GA, he was assigned to Company C, 3rd Battalion, 325th Infantry, 82nd Airborne Division at Fort Bragg, NC, from February 1976 to June 1979.  He performed duties as an airborne combat infantryman.  He was promoted to pay grade E-6 within 5 years.  His goal was to make the military a career and retire after 20 years as a command sergeant major.  However, this did not happen.
   
   
   c.  In 1976, while assigned to the 82nd Airborne Division and on airborne status, he was diagnosed with two peptic ulcers.  These ulcers continued in 1980 and 1981.  They became so severe that they resulted in five bleeding episodes. To remain in the military surgery was advised by medical doctors.  He agreed only to discover later that the surgery was a failure and incomplete.  He bled again and was found unfit for duty.  He was separated with a medical discharge and a 60 percent (%) disability rating.  

   d.  In effect, a review of his records will show the peptic ulcers began while he was on parachute duty and resulted from stressful airborne duty along with an airborne accident which cost two of his good friends their lives.  At first they could not find their bodies and he feared every jump after that accident.  His PTSD condition was incurred due to this accident while performing especially hazardous duty such as parachuting.  This stressful accident caused the Vagus nerve in his body to produce more acid than normal which resulted in his ulcer and eventually internal bleeding at such a magnitude that surgery could not correct the problem.  

   e.  This condition caused a tremendous amount of stress on him and his family.  He was also found to be non-deployable and unfit to remain on active duty which resulted in a medical retirement discharge.  This is the direct link and casual relationship to his service-connected PTSD and ulcer condition.  This was not his fault and he has earned the CRSC for these conditions.  

   f.  However, he was trained not to show, express, or feel fear and he continued on with his military career not knowing the effect it would have on his physical and mental health later in life.

3.  The applicant provides copies of the following:

* DA Form 2-1 (Personnel Qualification Record – Part II)
* two memoranda, subject:  Report of Accident Investigation
* DA Form 285 (Accident Report)
* DA Form 285-1 (Accident Report)
* DD Form 214 (Report of Separation from Active Duty) for the period ending 5 April 1979
* Department of Veterans Affairs (VA) Form 21-0781 (Statement in Support of Claim for Service Connection for PTSD)
* DA Form 3647 (Inpatient Treatment Record Cover Sheet)
* two Narrative Summaries
* Standard Form (SF) 502 (Clinical Record – Narrative Summary)
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 27 February 1985
* Orders D1-39
* VA Compensation and Pension Examination Summary
* VA Consultation Request
* six VA Progress Notes
* three VA Rating Decisions
* email correspondence from his primary care physician
* two letters from the U.S. Army Human Resources Command (HRC), CRSC Branch
* Report of Psychological Evaluation
* DA Form 2860 (Appendix A – Combat Related Codes)
* HRC website page for "CRSC Frequently Asked Questions"

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code (USC), 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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations.

2.  The applicant enlisted in the Regular Army (RA) on 6 October 1975.  He was awarded military occupational specialty (MOS) 11B (infantryman).  He completed airborne school at Fort Benning, GA and was subsequently assigned to Company C, 3rd Battalion (Airborne), 325th infantry, Fort Bragg, NC.

3.  On 5 April 1979, he was honorably discharged for the purpose of immediate reenlistment and reenlisted in the RA on 6 April 1979, in MOS 11B.

4.  He provided copies of the following:

   a.  Two accident investigation reports, dated 25 August 1977, involving the fatal accident of two members of the 325th Infantry during the performance of oriented pre-jump training.  The report stated that after exiting the aircraft the two Soldiers became entangled when one Soldier attempted to activate his reserve and there was insufficient altitude remaining for it to deploy causing both entangled jumpers to severely impact with the ground.  The investigation found that the entanglement occurred due to a weak exit on the part of one Soldier and the other Soldier not attempting to activate his reserve in sufficient time.

   b.  A DA Form 285 and DA Form 285-1, dated 19 September 1977, which stated two members of the 325th Infantry, Fort Bragg, NC, were fatally injured due to severe impact with the ground during a parachute assault in conjunction with a division field training exercise.

5.  He again reenlisted in the RA on 16 October 1981.  He served in Korea from 18 January 1982 through 19 January 1983.

6.  He also provided copies of the following:

* DA Form 3647 which shows he was hospitalized from 22 February through 7 March 1983 for a peptic ulcer and anemia
* Narrative Summary which summarized his hospitalization from 22 February through 7 March 1983; his physical, laboratory, and X-ray findings; and treatment for peptic ulcer disease

7.  His records contain the following:

   a.  A DA Form 3349 (Physical Profile Board Proceedings), dated 28 July 1983, assigning him a permanent profile of 3, 1, 1, 1, 1, 1, for peptic ulcer disease.

   b.  A DA Form 4187 (Personnel Action), dated 19 August 1983, wherein he requested reclassification into one of the following MOSs: 74F (software analyst), 71N (movement specialist), or 92C (petroleum laboratory specialist).

   c.  A memorandum, dated 21 October 1983, wherein the Chief, Enlisted Reclassification Section, denied the applicant's request for reclassification.  The memorandum stated that headquarters had determined in coordination with a representative from the Office of The Surgeon General that the applicant could perform the duties of MOS 11B within the limitations of his profile.  Should the applicant's medical condition deteriorate and it could be substantiated by medical authorities, reconsideration could be requested accompanied by updated medical documentation.

8.  Additionally, he further provided copies of the following:

* VA Form 21-0781 that he submitted in support of his claim for CRSC
* Narrative Summary which summarized his hospitalization from 6 to 17 August 1984; his physical, laboratory, and X-ray findings; and treatment for acute upper gastrointestinal bleed and status post vagotomy and pyloroplasty.

9.  His records also contain the following:

a. An Outpatient Medical Evaluation Board (MEB) Report, dated 
30 November 1984, showing his chief complaint was recurrent acute upper gastrointestinal bleeding.  He was initially evaluated in February 1983 for peptic ulcer disease and he was offered and elected to undergo a surgical procedure.  Following surgery he recovered promptly and was returned to duty.  However, because of recurrent gastrointestinal hemorrhage without a clear cut indication of the source of hemorrhage he was not deployable.  He was found to not meet the retention standards of Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-5-1, due to repeated hospitalization because of frequent recurrence of symptoms in spite of good medical management and supported by laboratory and X-ray evidence of activity.  It was recommended that he be referred to a Physical Evaluation Board (PEB) for consideration for separation from the service.

   b.  MEB Proceedings, dated 3 December 1984, show that, after consideration of clinical records and physical examination, the applicant was diagnosed with an acute upper gastrointestinal hemorrhage and status post vagotomy and pyloroplasty.  On 6 December 1984, he was referred to a PEB and he concurred.

   c.  PEB Proceedings show, on 11 December 1984, a PEB convened and considered and rated his medical condition of upper gastrointestinal hemorrhage of uncertain source 4 months after vagotomy and pyloroplastry for duodenal ulcer with history of hemorrhage.  The PEB found him unfit with a combined rating of 40% and recommended his placement on the Temporary Disability Retired List (TDRL) with reexamination during August 1985.  The PEB determined that his disability was not the result of 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 line of duty during a period of war as defined by law (Title 26, United States Code (USC), section 104).  He concurred with the PEB finding and recommendation and waived his right to a formal hearing.  The PEB was approved on 18 December 1984.  

   d.  A DA Form 3713 (Data for Retired Pay), dated 30 January 1985, which shows in the remarks section "his disability was not caused by a combat-related injury."

10.  On 27 February 1985, he was honorably retired under the provisions Title 10, U.S. Code (USC), section 1202, by reason of temporary physical disability.

11.  Orders D1-39, issued by the U.S. Army Physical Disability Agency on 2 January 1986, removed him from the TDRL for permanent retirement on the same date with a 60% disability rating.

12.  He also provided copies of the following:

   a.  A Compensation and Pension Examination Summary, dated 6 June 2011, which shows he underwent an initial evaluation for PTSD.  He stated that he was assigned to Fort Campbell, KY, between 1976 and 1977.  During that time there was a job designed for battle conditions.  Three paratroopers were killed in a jump as their parachutes did not open.  He saw the bodies hit the ground and bounce.  He frequently had nightmares and flashbacks of that event. 

   b.  A VA Rating decision, dated 8 May 2009, wherein he was advised of the following:

		(1)  An increase of his current 20% disability rating to 40% for vagotomy and pyloroplasty for duodenal ulcer disease.

		(2)  A 10% service-connected disability for residuals of left knee injury with degenerative joint disease.

		(3)  A 10% service-connected disability for residuals of right knee injury with degenerative joint disease.

   c.  VA Rating Decision, dated 2 December 2011, wherein he was advised of an increase of his current 50% disability rating to 70% for PTSD and a VA Rating Decision, dated 26 November 2012, first page only.

   d.  VA Consultant request for PTSD.

   e.  Six Progress Notes, which shows he received treatment between September 2008 and May 2012 for several issues:  anxiety, frustration, irritability, and cocaine dependence-remitting.  These notes also show he was advised of the increase in his disability rating to 70% for PTSD.

   f.  A letter, dated 10 February 2012, wherein HRC advised of the following:
   
		(1)  Award of a 20% total combat-related disability rating for bilateral right knee and left knee degenerative arthritis.

		(2)  They were unable to verify a combat-related disability for vagotomy and pyloroplasty for duodenal ulcer disease, PTSD, and tinnitus.
		(3)  There was no supporting documentation in his claim which confirmed the VA's determination that PTSD was attributed to a specific combat-related event.  The VA conceded a stressor based on his lay testimony which did not qualify for award under CRSC program guidance.  There must be a clear and causal link between the disability and a documented combat-related event.

		(4)  Sufficient evidence would be a PEB line of duty investigation, MEB, or military clinical medical records listing a combat-related event as the cause of his condition(s).

   g.  A Report of Psychological Evaluation which shows he was examined on 4 June 2012 and diagnosed with major depressive disorder, severe; PTSD, peptic ulcer disease; acid reflux disease; degenerative arthritis of both knees; tinnitus; irritable bowel syndrome; and fissured fistular.

   h.  Email correspondence, dated 11 June 2012, wherein the applicant's primary care physician stated he supported the applicant's request for CRSC.  His physician stated the applicant's history of peptic ulcer disease, and degenerative joint disease began while conducting airborne operations in 1976.  The peptic ulcer was the result of constant stress which resulted in six gastrointestinal bleeding episodes and caused the applicant's PTSD condition.

   i.  A letter, dated 6 November 2012, wherein HRC advised him of the following:

		(1)  That after reviewing all documentation in support of his claim, they were unable to overturn the previous adjudication(s).  

		(2)  They were able to verify a combat-related disability for the bilateral right knee and left knee degenerative arthritis.

		(3)  They were unable to verify a combat-related disability for vagotomy and pyloroplasty for duodenal ulcer disease, PTSD, and tinnitus.

   j.  A DA Form 2860 which defined the combat-related codes.
   
   k.  HRC website CRSC Frequently Asked Questions page which cited the criteria for CRSC.

13.  Army Regulation 635-40 (Personnel Separations – Physical Evaluation for Retention, Retirement, or Separation) sets for the policies for the disposition of Soldiers found unfit because of physical disability reasonably to perform the duties of his/her office, grade, rank, or rating.  The regulation states:
   a.  A combat-related injury is a personal injury or sickness that a Soldier incurs under one of the following conditions:  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.

   b.  An instrumentality of war is a device designed primarily for military service and intended for use in such service at the time of the occurrence of the injury.  It may also be a device not designed primarily for military service if use of or occurrence involving such a device subjects the individual to a hazard peculiar to military service.  This use or occurrence differs from the use or occurrence under similar circumstances in civilian pursuits.  There must be a direct causal relationship between the use of the instrumentality of war and the disability and the disability must be incurred incident to a hazard or risk of the service.

14.  CRSC, as established by Title 10, USC, section 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 weren'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 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, especially hazardous military duty, training exercises that simulate war, or cause by an instrumentality of war.  Such disabilities must be compensated by the VA and rated at least 10% disability.  Military retirees who are approved for CRSC must have waiver a portion of their military retired pay because CRSC the Military Department to return a portion of the waived retired pay to the military retiree.

15.  Title 10, USC, section 104, also 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.

DISCUSSION AND CONCLUSIONS:

1.  With regard to CRSC for PTSD:

   a.  The applicant contends the hazards of parachuting during airborne duty resulted in the death of two Soldiers and this was the cause/basis for the stressor(s) of his PTSD.  This incident, combined with his post-service medical evaluations, was sufficient for the VA to grant him service connection; however, the witnessing of those Soldiers' deaths does not meet any of the eligibility criteria for award of a CRSC rating.
   b.  CRSC determinations required evidence of a direct causal relationship to the military retiree's VA-rated disabilities to war or the simulation of war.  

   c.  Without evidence to establish a direct, causal relationship to his VA-rated PTSD condition to war or the simulation of war, as opposed to witnessing a fatal parachuting accident, there is insufficient basis in which to grant his request.

2.  With regard to CRSC for peptic ulcer disease:

   a.  While the evidence shows he was found medically unfit for this condition by a PEB and placed on the TDRL, the PEB determined that this disability was not the result of an 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.  

   b.  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.  

   c.  His disability retirement and award of service connection and VA disability benefits does not in and of itself show entitlement to CRSC.  Therefore, entitlement to CRSC for this disability 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)                                         AR20140013801





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140013801



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1