RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2019-04039

	COUNSEL: YES
	
	HEARING REQUESTED: NO

APPLICANT’S REQUEST

Her Combat-Related Special Compensation (CRSC) claim be reconsidered and granted.

APPLICANT’S CONTENTIONS

She was medically retired and is rated by the Department of Veterans Affairs (DVA) with 50 percent disability for combat-related post-traumatic stress disorder (PTSD).  Her PTSD was the result of her deployment to Iraq and meets the preliminary eligibility requirements for CRSC.  On 28 May 13, the CRSC board denied her application and on 21 Feb 14, denied her request for reconsideration.  The laws establishing the CRSC program must be broadly read in favor of returning combat veterans, as seen in King v. St. Vincent’s Hosp., 502 U.S. 215, 216 (1991).  The CRSC board narrowly construed the concept of combat-relatedness and imposed its own criteria, which is contrary to law as seen in Brown v. Gardner, 513 U.S. 115, 116-18 (1994) where the DVA could not interpret veteran benefits statute to include a “fault” requirement not found in the statute.

She should not be penalized for the delay in submitting her application to the Air Force Board for Correction of Military Records (AFBCMR) as the error was discovered on or about 19 May 15 but was delayed due to a change in lawyers working her case and was no fault of her own. 

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a permanently retired Air Force senior airman (E-4).

On 1 Nov 04, a Medical Evaluation Board (MEB) referred the applicant to the Informal Physical Evaluation Board (IPEB) for PTSD.

On 7 Dec 04, the IPEB determined the applicant’s PTSD was unfitting with a 10 percent compensable percentage, to be the direct result of armed conflict or was caused by an instrumentality of war and incurred in the line of duty (ILOD) during a period of war, and recommended discharge with severance pay (DWSP).

On 17 Dec 04, the applicant concurred with the findings and recommended disposition of the IPEB and waived her right to a Formal PEB (FPEB).

On 11 Feb 05, the applicant was honorably discharged with a narrative reason for separation of “Disability, Temporary.”

On 8 Dec 11, Special Order XXX-XXXXX was published and the applicant was placed on the temporary disability retired list (TDRL) in the grade of senior airman with a compensable percentage for physical disability of 50 percent, effective 12 Feb 05, under the authority “Sabo, et al, class action lawsuit, 08-899C, 12 Aug 11.”  On 19 Dec 11, Special Order XXX-XXXXX, dated 8 Dec 11, was amended by Special Order XXX-XXXXX to read the “disability was 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 and was the direct result of a combat-related injury as defined in Title 26, United States Code (U.S.C.), § 104.”   

On 8 Dec 11, Special Order XXX-XXXXX was published and the applicant was removed from the TDRL and permanently retired in the grade of senior airman with a compensable percentage for physical disability of 50 percent, effective 12 Aug 05, under authority, “Sabo, et al, class action lawsuit, 08-899C, 12 Aug 11.”  On 19 Dec 11, Special Order XXX-XXXXX, dated 8 Dec 11 was amended by Special Order XXX-XXXXX to read the “disability was 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 and was the direct result of a combat-related injury as defined in Title 26, U.S.C., § 104.”    

On 9 Jul 19, the applicant filed a civil lawsuit against the Air Force seeking CRSC.  On 22 Jul 19, the United States Court of Federal Claims entered an order staying the lawsuit pending a decision by the AFBCMR.

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

APPLICABLE AUTHORITY

The primary authority for the CRSC program is 10 U.S.C., §1413a, which provides additional compensation, above and beyond that for normal service related injuries, to veterans with a “combat-related disability.” The term “combat-related disability” is defined, in relevant parts, to include injuries that were “incurred (A) as a direct result of armed conflict, [or]…(D) through an instrumentality of war.” DoDI 1332.18, Disability Evaluation System, enclosures 3, appendix 5, paragraphs 1.b.(2) and 2.b., further elaborates that “direct result of an armed conflict” requires a definite causal relationship between armed conflict and the disability.  Moreover, “that the injury was incurred during a period of war, in an area of armed conflict, or while participating in combat operations is not sufficient to support this finding.”  For an instrumentality of war, again, there must exist a direct causal relationship between the instrumentality and the injury – just because an instrumentality of war was involved in the events leading to the injury is not enough, that instrumentality must have caused the injury. DoDR 7000.14-R, Financial Management Regulation, Volume 7B, chapter 63, paragraph 630502 elaborates that “[a]n uncorroborated statement in a record that a disability is combat-related will not, by itself, be considered determinative for purposes of meeting the combat-related standards for CRSC prescribed herein.” DoDR 7000.14-R, Volume 7B, chapter 63, paragraphs 630601 & 630604 and a 2004 Directive Type Memorandum (DTM) on CRSC both mirror the above definition language.  In addition, the 2004 DTM also charges the Military Departments with independently determining the relationship between a member’s injury and the qualifying CRSC criteria.  A preponderance of evidence standard is used in making these determinations.  Further, the burden of proof rests with the CRSC applicant.

AIR FORCE EVALUATION

AFPC/DPFDC recommends denying the application.  The fact that a member incurred the disability during a period of war; while serving in an area of armed conflict; and/or while participating in combat operations is not sufficient by itself to support a combat-related determination IAW 10 U.S.C., § 1413a and DoD Financial Management Regulation, Volume 7B chapter 6.  When making combat-related determinations, with regard to Armed Conflict, Hazardous Service, Simulation of War or an Instrument of War, the board looks for definite, documented, causal relationship between the armed conflict and the resulting disability.

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, the CRSC program is designed to provide compensation for combat-related injuries and its standards are much more rigorous when determining if claimed disabilities qualify as combat-related.

The findings and recommended disposition of the Physical Evaluation Board (PEB) found the applicant’s PTSD to be combat-related in accordance with AFI 36-3212, Physical Evaluation for Retention, Retirement, and Separation.  Their process and standards for determinations are governed under guidance, which determines a member’s ability to remain fit for active duty.  However, the PEB’s decision does not automatically qualify a disability as combat-related under the CRSC program.  The CRSC program is designed to provide compensation for combat-related injuries.

The applicant submitted claims for CRSC compensation on 29 Apr 13 and 23 Jan 14.  Both claims were disapproved on 28 May 13 and 21 Feb 14.  Documentation submitted by the applicant in both claims provided no evidence to confirm her disability was a direct result of Armed Conflict, Hazardous Service, Simulation of War or an Instrumentality of War.  Previous information (232 pages) and the current information (232 pages) the applicant provided in her Application for Correction of Military Record (BC-2019-04039) has been reviewed and no new evidence was provided that supports her claim for CRSC compensation.

The complete advisory opinion is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 20 Sep 19 for comment (Exhibit D), and the applicant replied on 17 Oct 19.  Through counsel, the applicant contends the AFPC/DPFDC advisory opinion does not satisfy the CRSC Revised Program Guidance, dated 15 Apr 04, that requires the AFBCMR to “seek an advisory opinion from the Director of Compensation, Office of the Deputy Under Secretary of Defense (Military Personnel Policy).”

The applicant’s complete response is at Exhibit E.

ADDITIONAL AIR FORCE EVALUATION

OSD/OUSD recommends denying the application.  The applicant has asserted her PTSD disability was sustained while she was deployed with her unit in support of Operation IRAQI FREEDOM from Nov 03 to approximately Feb 04, as a result of being subjected to enemy mortar fire, particularly a mortar fire event that occurred at the site of her work area on the evening of 30 Nov 03.  She also asserted her PTSD resulted from a specific incident, sometime in Dec 03 or Jan 04, in which she participated in unloading a helicopter that had dismembered body parts in its interior and was covered in blood.  It must be noted, however, that other than her assertions (and repetitions of her assertions in other documents), no supporting documents were provided to OSD/OUSD that independently corroborated the helicopter incident as the applicant described it.  The applicant has further asserted that her disability is combat-related, and thus entitles her to payment of CRSC, as a direct result of armed conflict and because the enemy mortars constituted instrumentalities of war.  Contrary to her assertions, and based on the preponderance of evidence provided, it is found that her disability was not the direct result of armed conflict, and that in her case, the enemy mortars do not constitute instrumentalities of war because they did not directly cause her disability and thus, do not satisfy the definition of that term for purposes of entitlement to CRSC.  The finding is based on the preponderance of evidence that demonstrates the applicant was merely present in an area of some distance from the site of the attack, she was not directly subject to the enemy mortar attack of 30 Nov 03.  In other words, the evidence provided serves to establish only that the applicant was present in an area of armed conflict during a period of war, nothing more.

The applicant has, additionally, placed a good deal of significance on the findings of the PEB in her case, which found her PTSD to be combat-related (this finding was also carried into her disability retirement orders from the Air Force).  It should be noted that the PEB’s findings and disposition report of 4 Dec 04 [sic] provides no explanation or underlying rationale for arriving at their combat-related findings/conclusions.  While the PEB’s determinations may be informative, the belief is they are not binding or determinative in regards to this advisory opinion.  Therefore, in view of the above, the finding is the applicant’s disability is not combat-related for purposes of entitlement to CRSC.  Without additional evidence establishing a nexus to the requirements of applicable references, the applicant’s claim for CRSC cannot be supported.  The applicant has the burden of credibly and objectively establishing she met the requirements under law, regulation, and policy for entitlement to CRSC.  She has not done so.  Therefore, she does not qualify for payment of CRSC and her petition to the AFBCMR should be denied.

The complete advisory opinion is at Exhibit F.

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 10 Feb 21 for comment (Exhibit G), and the applicant requested her case be closed to allow more time to respond.  On 27 Oct 21, through counsel, the applicant requested her case be re-opened and contended it is her belief that the DoD action officer (AO) is erroneous and must be disregarded by the Board.  The DoD AO’s focus on definitive proof of a causal relationship, as opposed to a preponderance of available evidence demonstrating a definite causal relationship, is akin to requiring clear and convincing evidence of a fact rather than a preponderance of the evidence.  The DoD AO improperly imposes a heightened burden of proof.  Counsel references several court cases to support their argument and a preponderance of the evidence has been proven that the applicant’s PTSD was incurred as a direct result of armed conflict or through an instrumentality of war.

The applicant’s complete response is at Exhibit H.

FINDINGS AND CONCLUSION

1.  The application was not timely filed.

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

3. After reviewing all Exhibits, the Board concludes the applicant is not the victim of an error or injustice.  After a thorough review of the available evidence of record, it is the Board's opinion that the applicant's PTSD disability, she believes to be combat-related, was not incurred as a direct result of armed conflict nor through an instrumentality of war, and therefore, does not qualify for compensation under the CRSC program.  Specifically, the Board does not find sufficient evidence for definite, documented, causal relationship between the enemy mortar attack on 30 Nov 03 and her PTSD disability.  Therefore, we agree with the opinion and recommendation of AFPC/DPFDC and OSD/OUSD and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.

The Board notes counsel's implication that several Federal Court cases support the applicant’s request for CRSC in that provisions for benefits to members of the Armed Services are to be construed in the beneficiaries' favor," (King v. St. Vincent's Hospital); the DVA could not interpret veteran benefits statute to include a "fault" requirement not found in the statute (Brown v. Gardner); burden of proof relating to clear and convincing evidence vs. a preponderance of the evidence (Mueller & Kirkpatrick, Federal Evidence), (Lillian F. v. Superior Court), (Metropolitan Steveodore Co. v. Rambo), (Almerfedi v. Obama), (Barhoumi v. Obama), and (United States v. Montague).  However, the Board does not find these Federal Court cases persuade our decision.  The Board applied the CRSC program guidelines to the applicant's case and considered all available evidence and does not find a preponderance of the evidence supports her requested relief.  
Therefore, the Board recommends against correcting the applicant's records.  

Although we find the application untimely, that conclusion does not end our consideration of the request.  The governing statute provides that the Correction Board "may excuse a failure to file within three years after discovery if it finds it to be in the interest of justice." (10 U.S.C., § 1552b).  We believe the intent of this provision of the statute is to provide the Board with the flexibility to consider all the facts and circumstances of a case regardless of the time that has passed since the incident-giving rise to the appeal.  The statute permits us to consider the reasons for the delay provided by the applicant and, if those reasons are plausible, excuse the failure to file in a timely manner and consider the case on its merits.  Even if the reasons for the delay in filing are insufficient to excuse the delay, we may examine the facts and circumstances of the case and, if substantial evidence of an error or injustice exists, waive the three-year time limit and correct the error or injustice.  Thus, we normally assert the statute and reject an application for timeliness only when we find no plausible reason for the delay and no substantial evidence of an error or injustice.  Paragraph b of 10 U.S.C., § 1552 permits us, in our discretion, to excuse untimely filing in the interest of justice.  We have carefully reviewed the applicant's submission and the entire record, and we do not find a sufficient basis to excuse the untimely filing of this application.  The applicant has not shown a plausible reason for delay in filing, and we are not persuaded that the record raises issues of an error or injustice that require resolution on its merits.  Accordingly, we conclude that it would not be in the interest of justice to excuse the untimely filing of the application.

RECOMMENDATION

The Board recommends informing the applicant the application was not timely filed; it would not be in the interest of justice to excuse the delay; and the Board will reconsider the application only upon receipt of relevant evidence not already presented.

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-2019-04039 in Executive Session on 17 Jun 20 and 26 Jan 22:

Panel Chair
Panel Member
Panel Member
Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 6 Jul 19, 26 Jul 19 and 28 Aug 19.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DPFDC, dated 19 Sep 19.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 20 Sep 19.
Exhibit E:	Applicant’s response, w/atchs, dated 17 Oct 19.
Exhibit F:	Advisory opinion, OSD/OUSD, dated 9 Feb 21.
Exhibit G:	Notification of advisory, SAF/MRBC to applicant, dated 10 Feb 21.
Exhibit H: Applicant’s response, w/atchs, dated 27 Oct 21.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings, as required by AFI 36-2603, paragraph 4.11.9 for Docket Number BC-2019-04039.