Docket No. 2214-20

Ref: Signature Date 
 
 
 
 
Dear,  
 
This is in reference to your application for correction of your naval record pursuant to Section 1552 of Title 10, United States Code.  After careful and conscientious consideration of relevant portions of your naval record and your application, the Board for Correction of Naval Records (Board) found the evidence submitted insufficient to establish the existence of probable material error or injustice.  Consequently, your application has been denied.    
 
Although your application was not filed in a timely manner, the Board found it in the interest of justice to waive the statute of limitations and consider your case on its merits.  A three-member panel of the Board, sitting in executive session, considered your application on 22 July 2021.  The names and votes of the members of the panel will be furnished upon request.  Your allegations of error and injustice were reviewed in accordance with administrative regulations and procedures applicable to the proceedings of this Board.  Documentary material considered by the Board consisted of your application, together with all material submitted in support thereof, relevant portions of your naval record and applicable statutes, regulations and policies.  In addition, the Board considered the advisory opinion contained in Director CORB letter 5819 CORB: 001 of 14 July 2020; a copy of which was previously provided to you for comment. 
 
A review of your record shows that you reentered active duty with the Marine Corps in December 2005 after a previous enlistment that ending in October 2003.  You deployed to Iraq in February 2007 during which you assert that you received small arms fire while driving in convoys, were exposed to Improvised Explosive Device explosions, and exposed to one mortar round that landed in the motor pool.  You subsequently redeployed to Iraq in February 2008 but faced limited exposure to any combat operations.  In the years that followed, you underwent medical examinations for symptoms related to Migraine Headaches, Cognitive Disorder, and Post-Traumatic Stress Disorder (PTSD) that eventually led to your referral to the Disability Evaluation System and your placement on the Temporary Disability Retirement List in September 2013.  You were eventually transferred to the Permanent Disability Retirement List in September 2014 and filed for Combat Related Special Compensation (CRSC) in 2015.  In your application, you claimed multiple orthopedic disabilities along with Tinnitus, Migraine Headaches, PTSD, and Traumatic Brain Injury.  You claimed these conditions were incurred as a result of the mortar attack in 2007.  On 23 September 2015, the CRSC Board denied your claim based on lack of evidence that your conditions were incurred as a result of a specific combat-related event.   
 
The Board carefully considered your arguments that you deserve CRSC based on your Migraines, Tinnitus, and PTSD.  You claim that you qualify for payment under all of the CRSC under armed conflict, hazardous service, conditions simulation war, and by means of instrumentality of war.  Unfortunately, the Board disagreed with your rationale for relief.  In making their findings, the Board substantially concurred with the advisory opinion in your case. 
 
Section 1413a of Title 10, United States Code, provides the statutory authority for payment of CRSC.  Based on procedures and criteria prescribed by the Secretary of Defense, it allows for payment of CRSC for combat-related disabilities incurred as a 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.  In addition, CRSC may be awarded if a disability is attributable to an injury for which a Purple Heat was awarded.  The Office of the Under Secretary of Defense issued a Directive Type Memorandum on 27 April 2004 that provided guidance on CRSC.  Additionally, Department of Defense Regulation 7000.14-R (Financial Management Regulation) also addresses CRSC by stating “Determinations of whether a disability is combat-related for CRSC will be based on the preponderance of available documentary information where quality of information is more important than quantity.  All relevant documentary information is to be weighed in relation to known facts and circumstances, and determinations will be made on the basis of credible, objective documentary information in the records as distinguished from personal opinion, speculation, or conjecture.”  
 
In your case, the Board concluded the preponderance of the evidence does not support a finding that you met any of the criteria for payment of CRSC due to your claimed disability conditions.  The Board considered the fact that your medical record contains multiple discrepancies regarding whether you were actually exposed to any concussive explosions during either of your deployments to Iraq.  As noted in the advisory opinion, medical record entries from 2010 and 2013 raise questions about the veracity of your claims.  In addition, the Board considered the fact your medical record entries from your 2007 deployment to Iraq do not contain any treatments related to concussive blasts that would support a finding that your migraine headaches, tinnitus, or PTSD were incurred as a result of a combat-related event.  Finally, the Board noted you do not possess any combat awards to support a finding you were involved in any combat.  After weighing the totality of the evidence, including your “buddy statement” regarding the mortar attack in the motor pool, the Board concluded the preponderance of credible, objective documentary information does not support your claim for CRSC.  Accordingly, the Board found insufficient evidence of error or injustice to warrant a change to your record.   
 
The Board determined that your personal appearance, with or without counsel, would not materially add to their understanding of the issues involved.  Therefore, the Board determined that a personal appearance was not necessary and considered your case based on the evidence of record.
 
You are entitled to have the Board reconsider its decision upon submission of new matters, which will require you to complete and submit a new DD Form 149.  New matters are those not previously presented to or considered by the Board.  In this regard, it is important to keep in mind that a presumption of regularity attaches to all official records.  Consequently, when applying for a correction of an official naval record, the burden is on the applicant to demonstrate the existence of probable material error or injustice.   
 
Sincerely, 

7/23/21


Deputy Director