RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2015-00050 COUNSEL: HEARING DESIRED: YES APPLICANT REQUESTS THAT: His application for Combat-Related Special Compensation (CRSC) be approved. APPLICANT CONTENDS THAT: Applicant, thru counsel, states he suffered a grave injustice when AFPC/DPFDC denied his CRSC application in December 2012. In the fall of 2008, he participated in Operation Unified Engagement, an exercise with allies designed to explore joint war fighting concepts and capabilities, commonly known as “war games.” During this time, he suffered a well-documented nervous breakdown while performing intelligence duties. He was diagnosed with Major Depressive Disorder (MDD) with psychotic features and on 27 October 2008 was placed on the Temporary Disability Retired List (TDRL). On 12 May 2010, the Department of Veterans Affairs (DVA) awarded him service connected disability for his condition of MDD. In June 2011, he was medically re-evaluated by a Physical Evaluation Board (PEB) which found him unfit for continued service and recommended he be permanently retired with a 30 percent disability rating. In a letter dated 27 December 2012, he was notified by the USAF Physical Disability Division at AFPC that his request for CRSC was denied as it contained “no definitive evidence to confirm his disabilities were the direct result of a combat-related event.” The letter states his conditions of hypertension and irritable colon did not meet CRSC criteria but did not address his MDD which is the basis for requesting CRSC. The letter also states “We were unable to confirm Gulf War service within the Southwest Asia theatre of operations. This lack of evidence prevents consideration under current CRSC criteria. If you have documentation placing you within the Southwest theatre of operations after 2 August 1990, please provide for reconsideration.” However, both the Secretary of Defense (SECDEF) Guidance and 10 U.S.C. § 1413a(e) make clear that service in Southwest Asia after 2 August 1990 is not a prerequisite qualification for CRSC. On 19 July 2014, he participated in an independent medical examination by a clinical psychologist with over 30 years’ experience. It was the opinion of the clinical psychologist that it is more likely than not that his military experience contributed to his diagnosis of MDD which he suffers from today and that his military experience served as the catalyst for his depression which manifested in psychotic features such as hallucinations as reported in his military record. There is no record he experienced depression with psychotic features prior to September 2009. Prior to his participation in Operation Unified Engagement in 2008, he had no symptomology. It is clear his psychotic breakdown during this time was precipitated by stressful events associated with assigned duties while participating in Operation Unified Engagement. Combat-related disability is defined per 10 U.S.C. § 1413(a)(e) and includes disability incurred in the performance of duty under conditions Simulating War (SW). If the Board believes there exists a reasonable question as to whether the applicant’s disability is in fact combat-related, then pursuant to SECDEF Guidance and 10 U.S.C. § 1556 the applicant requests an advisory opinion from the Office of the Deputy Under Secretary of Defense (OUSD), Military Personnel Policy and copies of all correspondence and communication to or from the Board be provided to counsel. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: On 25 May 2002, the applicant entered the Regular Air Force. Per AF Form 356, Findings and Recommended Disposition of USAF Physical Evaluation Board, dated 21 April 2009, the applicant was recommended for temporary retirement for unfitting condition of MDD, single episode, severe with psychotic features, in partial remission with a disability rating of 30 percent. Per Special Order, ACD-01714, dated 29 July 2009, the applicant was placed on the TDRL effective 28 October 2009 in the grade of captain (O-3), with compensable percentage for physical disability of 30 percent. He was credited with 7 years, 5 months and 3 days of active duty service. According to a DVA rating decision dated 10 May 2010, the applicant received a 70 percent rating for his condition of MDD, recurrent mild effective 28 October 2009. The applicant was also rated for conditions of obstructive sleep apnea (50 percent), irritable bowel syndrome (30 percent), lumbar strain (20 percent) and hypertension (10 percent). The applicant’s TDRL re-evaluation dated 3 June 2011 reflects the PEB recommended he be permanently retired with 30 percent disability for Category 1 unfitting, compensable and ratable condition of social phobia with hypersomnia related to depression and anxiety. His Category II condition of MDD, single episode, severe with psychotic feature, in full remission was found as a condition that can be unfitting but was not compensable or ratable at the time. The TDRL re-evaluation also notes the disability was not incurred in a combat zone or incurred during the performance of duty in combat-related operations as designated by the SECDEF. Per Special Order ACD 02528 dated 20 June 2011, he was removed from the TDRL and permanently retired in the grade of captain with a compensable percentage of 30 percent for physical disability. Public Law 107-314 established the CRSC program which provides compensation to certain retirees with combat-related disabilities that qualify under established criteria. The remaining relevant facts pertaining to this application are contained in the memorandums prepared by the Air Force Offices of Primary Responsibility (OPRs), which are attached at Exhibits C and D. AIR FORCE EVALUATION: AFPC/DPFDC recommends denial. The applicant’s condition of MDD does not meet the mandatory criteria for compensation under the CRSC program as outlined under the provisions of 10 U.S.C. § 1413a, and the OUSD Guidance. The stress of participating in a military exercise, in and of itself, is not sufficient for a direct link to a combat-related event. The applicant’s claim for CRSC for MDD, sleep apnea, irritable bowel syndrome and hypertension was disapproved on 27 December 2012. He submitted a request for reconsideration; however, no new/additional supporting documents were provided. The request for reconsideration was denied on 6 March 2013 as there was no evidence provided to confirm the disabilities were the direct result of armed conflict, hazardous service, instrumentality of war, or SW. The DVA awards service connected disabilities based on their standards. They resolve doubt in the interest of the veteran and grant service connection for injuries or diseases incurred while in service. While service connection for disabilities is required for initial eligibility for CRSC consideration, CRSC criteria is more stringent. CRSC guidance requires objective documentary evidence in order to support a combat-related determination. Military Departments will determine whether a disability is combat-related using the definitions and criteria set forth in DD Form 2860, Claim for Combat-Related Special Compensation (CRSC), Appendix A. In the applicant’s initial claim, he stated his depressive disorder was incurred during his participation in Operation Unified Engagement when he served under wartime conditions leading troops in conducting analysis and providing four to six briefings per day to general officers. In his DD Form 149, Application for Correction of Military Record, counsel states “he suffered a well-documented nervous breakdown while performing intelligence duties in the A2 section.” Counsel also mentions the clinical psychologist’s statement that “it is much more likely than not that the applicant’s military experience served as the key catalyst for his depression.” In accordance with DD Form 2860, Appendix A, In the Performance of Duty Under Conditions Simulating War (SW), the fact that a member incurred a disability during a period of SW or in an area of simulated armed conflict or while participating in simulated combat operations is not sufficient by itself to support a combat- related determination. There must be a definite, documented, causal relationship between the simulated armed conflict and the resulting disability. When making combat-related determinations for mental health issues, the Board looks for instances of direct exposure to a combat-related event, such as direct exposure to gunfire or mortar attack, surviving military aircraft crash, or a parachutist surviving a mid-air collision/parachute failure. Guidance from the Office of the Secretary of Defense (OSD) states “Direct result means there is an immediate physical relationship between an event and the injury or illness. It is not second hand or effected over distance.” Although the stress of participating in military exercises can be a contributing factor to certain mental health conditions, DPFDC cannot approve these disabilities as combat- related based on the stress of participating in SW alone. Counsel mentions reference to Gulf War service within the Southwest Asia theatre of operations as reason provided for denial of the CRSC request. This paragraph of the letter was not applicable to the applicant’s request for CRSC for MDD. Counsel also states the reason for denial and options for reconsideration were not provided. The 17 December 2012 [sic] letter explains the reason for denial was that the documentation provided did not confirm a combat-related event. The letter also states that the applicant may submit new documentation to DPFDC. A complete copy of the AFPC/DPFDC evaluation, with attachments, is at Exhibit C. AFPC/JA agrees with the recommendation of AFPC/DPFDC to deny the requested relief. While the applicant’s mental health disability may be linked to the general stress of participating in a military exercise, his CRSC claim and this application have no link to the mandated combat-related event. Failing this key requirement and given the absence of any error or injustice, AFPC/JA recommends denial of the requested relief. The legal brief, medical records and other attachments provided do not provide the required definite, documented, causal relationship between the simulated armed conflict and the resulting disability. The applicant’s request relies on an overly broad interpretation of the crucial combat-related requirement. This term has a very specific meaning in CRSC analysis. It is not simply participating in an exercise or being present chronologically and geographically. Instead, eligibility requires a direct link between the conditions of SW and the disability. In general, this covers disabilities resulting from simulated combat activity during military training, such as war games, practice alerts, tactical exercises, airborne operations, grenade and live fire weapons practice, bayonet training, hand-to-hand combat training, rappelling, and negotiation of combat confidence and obstacle courses while in full combat gear. Similar guidance was provided by OSD in determining cases involving mental health disabilities. The key remains the direct link and direct exposure to a combat-related event, like gunfire, mortar attacks, or an aircraft crash with a causal relationship to the disability. A complete copy of the AFPC/JA evaluation is at Exhibit D. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Applicant, thru counsel, requests the Board disregard the advisory opinions and grant the relief requested. Both advisory opinions adopt the recommendation that the applicant failed to provide a required definite, documented, causal relationship between the simulated armed conflict and the resulting disability. The applicant demonstrated in his appeal that he suffered a nervous breakdown while performing intelligence duties while participating in Operation Unified Engagement, an exercise with allies designed to explore joint war fighting concepts and capabilities, referred to as war games. The applicant has produced his medical records at the time that demonstrate his participation in Operation Unified Engagement and his removal from that environment precipitated the psychotic break he experienced in 2009 which led to his MDD. Unlike the clinical psychologist who evaluated the applicant, the advisory opinions are ill-advised and include uninformed speculation about the etiology of the applicant’s MDD. There is no sound clinical or forensic basis to reach a different conclusion than the one reached by the clinical psychologist with over three decades of experience who evaluated the applicant. The DPFDC advisory states that although the stress of participating in military exercises can be a contributing factor to certain mental health conditions, these disabilities cannot be approved as combat- related based on the stress of participating in SW alone. This statement contradicts the legal mandate of 10 U.S.C. § 1413a(e). The JA opinion further mischaracterizes the applicant’s burden of proof to provide his qualification for CRSC. The applicant has provided all relevant medical records in his possession that support his application and has also provided a professional opinion to eliminate any possibility of a missing etiological link. The JA opinion also fails to discuss 10 U.S.C. § 1413a(e) and instead discusses the DD Form 2860 which is simply a worksheet. Title 10 explicitly provides the SECDEF’s Guidance is controlling. The JA statement that the direct link, direct exposure to a combat-related event, like gunfire, mortar attacks, or an aircraft crash with a causal relationship to the disability has no basis in law and incorrectly suggests only direct exposure to armed conflict entitles a service member to CRSC. It also suggests a new or different definition of “combat-related” other than that provided for in the SECDEF’s Guidance. If the Board finds the advisory opinions have raised a reasonable question as to the applicant’s qualification for CRSC, it must seek an advisory opinion from the OUSD as required by law. The SECDEF’s guidance makes clear that where the issue of whether a disability is combat-related for the purposes of CRSC, the Board will seek an advisory opinion from the Director of Compensation, OUSD (Military Personnel Policy) and comply with the requirements of 10 U.S.C. § 1556. The Board should disregard the unsubstantiated advisory opinions issued by AFPC and grant the applicant’s claim for CRSC. Counsel requests copies of all advisory opinions (oral or written and from internal or external sources). Should the Board deny the applicant’s request, he reserves the right to seek judicial redress in federal court pursuant to the Tucker Act, 28 U.S.C. § 1491 to include payment of reasonable attorneys’ fees from the Department of the Air Force pursuant to the Equal Access to Justice Act, 28 U.S.C § 2412. The applicant’s complete submission, with attachments, is at Exhibit G. ADDITIONAL OUSD P-R EVALUATION: In an e-mail dated 19 January 2016, the Assistant Director, Retired and Annuitant Pay, OUSD Personnel-Readiness advised they reviewed the applicant’s request for CRSC and concurred with the findings and decision rendered by the Air Force on 27 December 2012. A complete copy of the OUSD P-R e-mail is at Exhibit H. APPLICANT'S REVIEW OF ADDITIONAL EVALUATION: On behalf of applicant, counsel disagrees with the OUSD P-R concurrence with the AFPC opinions to deny the applicant’s eligibility for CRSC. The applicant’s disability was indeed combat-related under the law and policy. His combat-related disability was both compensable by the DVA and incurred in the performance of duty under the conditions of SW per 10 U.S.C. § 1413a(e)(2)(C). On 15 April 2004, the PDUSD published CRSC program guidance defining “in the performance of duty under conditions simulating war” and included “war games” and “leadership reaction courses.” In September 2008, the same definition was published in the DOD Financial Management Regulation. Both publications defined “in the performance of duty under conditions SW” as follows: “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 weapon practice, bayonet training, hand-to-hand combat training, repelling 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.” The AFPC/JA opinion relies on the narrow definition of SW found in DD Form 2860, Appendix A. Even under the DD Form 2860 SW instruction, a clear and well-documented causal relationship exists between the applicant’s duties during SW and his rapid mental deterioration. Records confirm that the SW military exercise known as Operation Unified Engagement took place from 28 October 2008 through 5 November 2008. It is indisputable that the applicant suffered a catastrophic nervous break-down during his performance of duties from Operation Unified Engagement. Timing and participation are evidence in support of the applicant’s claim. Observations of his peers, supervisors and executive leadership during and immediately after Operation Unified Engagement confirm a causal relationship between SW and his resulting disability. His unit commander described how the applicant mentally malfunctioned as a result of Operation Unified Engagement and wrote “During this time (mid November 2008 through December 2008) his ability to focus on tasks and think coherently deteriorated very rapidly.” Over the weeks of the operation, the applicant’s behavior so disturbed his first- line supervisors they asked him whether he was suicidal or homicidal. Peers became alarmed about his writing inappropriate notes on a board at work. On or about 17 November 2008, the applicant was admitted to Landstuhl Regional Medical Center for psychiatric evaluation. Shortly thereafter, his odd behavior increased and he reportedly tried to kill himself. Between mid- November 2008 and December 2008, doctors described the applicant’s psychotic episode as precipitated by “occupational stressors and limited social support.” Based on the documented sequence of events, observations and mental health treatment records, it is clear the applicant hit his breaking point as a direct result of his experience in Operation Unified Engagement. His intellectually-exhausting and highly classified work compounded his social isolation and exacerbated his mental problems. It is evident he suffered burn-out because of SW. It is illegal, erroneous and unjust to further deny CRSC just because the disability the applicant incurred from SW happened to be mental as opposed to physical The applicant’s complete submission, with attachments, is at Exhibit I. THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 3. Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice. After a thorough review of the evidence of record, to include counsel’s rebuttals to the Air Force and OUSD P-R evaluations, it is our opinion that the service-connected medical condition the applicant believes is combat-related was not incurred as the direct result of armed conflict, while engaged in hazardous service, in the performance of duty under conditions simulating war, or through an instrumentality of war, and therefore, does not qualify for compensation under the CRSC Act. While counsel’s contentions are duly noted, he has not provided substantial evidence which, in our opinion, successfully refutes the assessment of the applicant’s case by the Air Force OPRs and OUSD P-R, Office of Compensation. Therefore, we agree with the opinions and recommendations of the Air Force OPRs and OUSD P-R and adopt the rationale expressed as the basis for our decision that the applicant has failed to sustain his burden of proof of either an error or an injustice. In the absence of evidence to the contrary, we find no basis to recommend granting the requested relief. 4. The applicant’s case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved. Therefore, the request for a hearing is not favorably considered. THE BOARD DETERMINES THAT: The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application. The following members of the Board considered AFBCMR Docket Number BC-2015-00050 in Executive Session on 10 and 31 March 2016 under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 22 December 2014, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, AFPC/DPFDC, dated 27 February 2015, w/atchs. Exhibit D. Memorandum, AFPC/JA, dated 10 June 2015. Exhibit E. Letter, SAF/MRBR, dated 18 June 2015. Exhibit F. Letter, SAF/MRBR, dated 29 June 2015. Exhibit G. Letter, Counsel, dated 28 July 2015, w/atchs. Exhibit H. E-mail, OUSD P-R, dated 19 January 2016. Exhibit I. Letter, AFBCMR, dated 27 January 2016. Exhibit J. Letter, Counsel, dated 1 March 2016, w/atchs.