RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2017-03157

   	COUNSEL: 
	
	HEARING: NO

APPLICANT REQUESTS:

His post-traumatic stress disorder (PTSD) be found to be in-the-line-of-duty (ILOD) and occurred as a direct result of armed conflict, or was caused by an instrumentality of war and incurred in the line of duty during a period of war, in order to qualify for Combat-Related Special Compensation (CRSC).

APPLICANT CONTENDS:

On numerous occasions, he was in a position to engage in battle with weapons capable of delivering fire on an enemy, while within the effective range of enemy weapons, thus putting him before the enemy.  In 2008, he often encountered enemy forces within range of engagement.  The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:  The applicant served in AF Reserve in the grade of technical sergeant (TSgt).

Effective 25 May 12, the Department of Veterans Affairs (DVA) assigned a 70 percent disability rating to the applicant’s PTSD. 

Under Special Order ACD-00886, dated 29 Dec 14, the applicant was relieved from active duty and placed on the temporary disability retired list (TDRL), effective 29 Jan15, with a compensable percentage for physical disability of 70 percent.  The orders indicate the disability was “incurred in a combat zone or incurred during the performance of duty in combat-related operations,” but was not “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.”

On 3 Aug 15, the Informal PEB determined his PTSD (Combat Zone, Not Combat Related) was a condition which made him unfit for further military service, and recommended he be removed from the TDRL and permanently medically retired with a combined compensable disability rating of 50 percent.  

Under Special Order ACD-00970, dated 19 Jan 16, the applicant was removed from the TDRL and retired in the grade of technical sergeant with a compensable percentage of 50 percent for physical disability, effective 8 Feb 16.  The orders indicate the disability was not “the direct result of a combat related injury as defined in 26 U.S.C. 104.”  

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisories at Exhibits C, F, and G.

AIR FORCE EVALUATION:  

AFPC/DPFDC recommends denying the application.  When making combat-related determinations for PTSD and mood disorder under the Armed Conflict criteria the Board looks for instances of direct combat exposure, such as direct exposure to gunfire or mortar attack.  PTSD attributed to the death of individuals, where the member was not directly involved in the event that caused the death(s) (such as caring for wounded or dead), do not qualify for CRSC.  Clear documentation must be provided to indicate an injury/disability occurred and/or was caused by a specific combat-related event.

On 8 Feb 16, the applicant submitted an initial claim for CRSC for PTSD, limited motion of arm (right shoulder strain), lumbosacral or cervical strain (lumbar), synovitis (right knee strain) and limited flexion of knee (left).  His claim was disapproved 2 Mar 16.  On 6 Oct 16, he requested reconsideration of the CRSC Board's disapproval for his PTSD only.  The reconsideration request was denied 8 Nov 16.

The Physical Evaluation Board (PEB) found the applicant’s PTSD occurred in a combat zone, but was not combat related.  Furthermore, he provided no evidence which confirms his disabilities were the direct result of armed conflict, hazardous service, instrumentality of war, or simulating war.  This lack of evidence prevents consideration under current CRSC criteria.

The complete advisory is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board sent a copy of the Air Force evaluation to the applicant on 11 Dec 17 for comment (Exhibit D), and the applicant replied on 25 Jan 18.  In his response, the applicant suggests, through counsel, the advisory writer did not review the information the applicant provided with his application or apply 20 USC § 1413(a); provides his summarization of the relevant information in the applicant’s exhibits; reiterates his PTSD was combat-related; cites the US v Morchinek decision to define “before the enemy;” and, argues the Air Force criterion for CRSC is not consistent with that of every other branch of service.  The applicant’s complete response is at Exhibit E.

ADDITIONAL AIR FORCE EVALUATIONS:  

AFPC/DPFDC recommends denying the application.  The fact a member incurred a disability during a period of war or an area of armed conflict or while participating in combat operations is not sufficient alone to support a combat related determination IAW 10 U.S. C. Section 1413a and DoD Financial Management Regulation, Vol 7B Chapter 63.  The applicant’s submissions to both the CRSC Board and AFBCMR were found to be unpersuasive in justifying a causal relationship between the member’s injury and armed conflict or an instrumentality of war.  Based on the documentation provided by the applicant and analysis of the facts, there is no evidence of an error or injustice.

The complete AFPC/DPFDC advisory is at Exhibit F.

AFPC/JA recommends denying the application.  DoDI 1332.18, Disability Evaluation System, encls. 3, appx. 5, paras. 1.b.(2) and 2.b., states “direct result of an armed conflict” requires a definitive causal relationship between armed conflict and the disability.  The mere fact the applicant was present in a war zone or was close to armed conflict is not enough to meet this standard.  In the applicant’s 25 Jan 18 rebuttal letter, his attorney quotes from several supporting statements about the applicant’s experiences in Afghanistan and Iraq.  However, none of these statements, on their face, indicate the applicant was engaged in combat.  Before the PEB, the applicant denied ever being attacked by an IED, mortar, or injured by small arms fire.  This testimony was corroborated by the applicant’s post-deployment medical screeners in which he again denied exposure to enemy fire, IEDs, mortars, or dead bodies.  The applicant has failed to provide clear, credible documentation that supports his CRSC claim.  The CRSC Board determined, in compliance with the applicable standards, no definite causal relationship between an armed conflict/instrumentality of war and the applicant’s PTSD existed.  Therefore, we recommend denial.  

The complete AFPC/JA advisory is at Exhibit G.

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATIONS:

The Board sent copies of the additional Air Force evaluations to the applicant on 11 Jun 18 for comment (Exhibit H), but has received no response.

THE BOARD CONCLUDES:

1.  The application was timely filed.

2.  The applicant exhausted all available avenues of non-judicial relief before applying to the Board.

3.  After thoroughly reviewing all Exhibits, it is the Board’s opinion the applicant is not the victim of an error or injustice.  The Board concurs with the rationale and recommendation of AFPC/DPFDC and AFPC/JA and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  Therefore, the Board recommends against correcting the applicant’s records.

THE BOARD RECOMMENDS:

The applicant be informed the evidence did not demonstrate material error or injustice, and the application will only be reconsidered upon receipt of relevant evidence not already considered by the Board.

CERTIFICATION:

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2017-03157 in Executive Session on 25 Jul 18:

Panel Chair
Member
Member

All members voted not to correct the record.  The panel considered the following:

Exhibit A:  Application, DD Form 149, w/atchs, dated 23 Jun 17.
Exhibit B:  Documentary evidence, including relevant excerpts from official records.
Exhibit C:  Advisory opinion, AFPC/DPFDC, dated 30 Nov 17.
Exhibit D:  Notification of Advisory, SAF/MRBC to applicant, dated 11 Dec 17.
Exhibit E:  Applicant’s Rebuttal, dated 25 Jan 18.
Exhibit F:  Advisory opinion, AFPC/DPFDC, dated 17 May 18.  
Exhibit G:  Advisory opinion, AFPC/JA, dated 21 May 18. 
Exhibit H:  Notification of Advisory, SAF/MRBC to applicant, dated 11 Jun 18.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings for Docket Number BC-2017-03157 as required by AFI 36-2603, paragraph 4.11.9.