RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-02807

XXXXXXXXXXXX	COUNSEL: NONE

	HEARING REQUESTED: YES

APPLICANT’S REQUEST

Her AF Form 356, Findings and Recommended Disposition of USAF Physical Evaluation Board, Section 9, column F, be changed to “YES” to indicate her disability was combat-related as defined in 26 USC as a direct result of armed conflict.

Her retirement order be amended to reflect that her disability was a direct result of a combat-related injury.

APPLICANT’S CONTENTIONS

On 21 Jun 09, while on duty as a Patient Movement Element (PME) Nurse, she treated several severely/mortally wounded patients.  Because of this event, her records should be corrected to show her Post-Traumatic Stress Disorder (PTSD) was a direct result of armed conflict.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a medically retired Air Force major (O-4). 

On 10 Apr 18, the Department of Veterans Affairs (DVA) proposed a 70 percent disability rating for her combat incurred medical condition of PTSD with Major Depressive Disorder (MDD).  The DVA also provided disability ratings for several other service-connected disabilities with a total combined rating of 100 percent.  

Dated 11 Apr 18, AF Form 356, indicates the applicant was found unfit due to her medical condition of PTSD with MDD/Bruxism (combat related no, combat zone yes).  Column F, combat related determination as defined in 26 USC 104 is marked “no.”

On 23 Apr 18, AF Form 1180, Action on Physical Evaluation Board Findings and Recommended Disposition, indicates applicant agreed with the findings and recommended disposition of the Informal PEB, waived her right to a Formal PEB and did not request  a one-time reconsideration of the disability ratings for the conditions found unfitting by the PEB.

Dated 4 May 18, Special Order ACD-02513, indicates the applicant was permanently, disability retired in the grade of major, with a compensable percentage for physical disability of 100 percent.  “Disability was the direct result of combat-related injury as defined in 26 U.S.C. 104” is marked as “no.”

On 2 Jun 20, AFPC/DPFDC approved the applicant’s request for Combat Related Special Compensation (CRSC) for PTSD with a total combat-related disability of 70 percent.

Dated 24 Aug 18, the applicant’s DD Form 214, Certificate of Release or Discharge from Active Duty, reflects she was honorably discharged in the grade of major (O-4) after serving 16 years, 6 months and 19 days of active duty.  Her narrative reason for separation is “Disability, Permanent Integrated Disability Evaluation System (IDES).”

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

APPLICABLE AUTHORITY

DES Process:  26 U.S.C. Section 104 indicates compensation for injuries or sickness are exempt from tax due to a combat-related injury.  The term “combat-related injury” means personal injury or sickness which is incurred as a direct result of armed conflict; while engaged in extra-hazardous service; or under conditions of simulating war; or which is caused by an instrumentality of war.

CRSC Process: 10 U.S.C. Section 1413a indicates combat-related special compensation is awarded to combat-related disabled uniformed services retirees who is entitled to retired pay and has a combat-related disability.  The term “combat-related disability” means a disability that is compensable under the laws administered by the Secretary of Veterans Affairs and that was 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.

AIR FORCE EVALUATION

AFPC/DPFDD recommends denying the application, indicating there no error or injustice occurred at the time the PEB processed her disability case.  Per DoDI 1332.18, Disability Evaluation System (DES), Appendix 5 to Enclosure 3, “Combat Related” covers injuries and diseases attributable to the special dangers associated with armed conflict or the preparation or training for armed conflict.  A disability is considered combat-related if it makes the member unfit or contributes to unfitness and the preponderance of evidence shows it was incurred under any of the following circumstances; as a direct result of armed conflict; while engaged in hazardous service; under conditions simulating war; or caused by an instrumentality of war.  Armed conflict is defined as a war, expedition, occupation of an area or territory, battle, skirmish, raid, invasion, rebellion, insurrection, guerilla action, riot, or any other action in which service members are engaged with a hostile or belligerent nation, faction, force, or terrorist.  On 11 Apr 18 the IPEB found the applicant unfit for PTSD w/ Major Depressive Disorder (MDD) along with several other medical conditions.  The PTSD condition was determined not combat-related per the AF Form 356, block 9F but incurred in the combat zone; block 15 attributed her PTSD to the traumatic events she experienced while deployed to Afghanistan in 2009 where she worked as a nurse.  However, there was no indication in the documentation reviewed by the IPEB that she was directly engaged in hostile fire, wounded from a hostile act, or any of the conditions listed above which would qualify for a combat-related determination.  Rather, her condition was a result of indirect exposure to traumatic events in the performance of her daily duties.  Additionally, it is noted that as part of this BCMR submission, the applicant included a memorandum from the HQ AFCENT historian documenting events at Bagram Airfield during her deployment and a HQ AFPC/DPFDC CRSC approval memorandum dated 2 Jun 20.  The rules for award of CRSC are different from the combat-related decision that the PEB must make during disability processing.  Under CRSC rules AFPC/DPFDC was able to use the memorandum prepared by the AFCENT historian which documented the numerous projectile (mortar rounds, rockets, and unidentified) attacks as a basis for their approval decision.

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 8 Apr 21 for comment (Exhibit D), but has received no response.

ADDITIONAL AIR FORCE EVALUATION

A memo for record was provided by AFPC/DPFDC to clarify the decision to award CRSC to the applicant.  The PEB process and standards for determinations are governed under a guidance which determines a member’s ability to remain fit for active duty.  Consequently, our standards are different when determining disabilities under CRSC current criteria.  Determination of whether a disability is combat-related 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 determination will be made on the basis of credible, objective documentary information in the records as distinguished from personal opinion, speculation, or conjecture per 10 U.S. C. Section 1413a and DoD Financial Management Regulation, Vol 7B Chapter 6.   There must be a definite, documented, causal relationship between the armed conflict and the resulting disability. Armed conflict includes a war, expedition, occupation of an area or territory, battle, skirmish, raid, invasion, rebellion, insurrection, guerrilla action, riot, or any other action in which Service members are engaged with a hostile or belligerent nation, faction, force, or terrorists.  Attack histories such as the one provided by the applicant are weighed in relation to know facts and circumstances and as such was determined to be credible, objective documentation to support awarding CRSC.

The complete submission is at Exhibit E.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the memo for record to the applicant on 27 Apr 21 for comment (Exhibit F), but has received no response.
FINDINGS AND CONCLUSION

1.  The application was 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.  The Board concurs with the rationale and recommendation of AFPC/DPFDD and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The Board finds no causal relationship between the event and the resulting disability (PTSD); despite AFPC/DPFDC approving the applicant’s request for CRSC for PTSD to be considered as combat-related.  Therefore, the Board recommends against correcting the applicant’s records.

4.  The applicant has not shown a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved.

RECOMMENDATION

The Board recommends informing the applicant the evidence did not demonstrate material error or injustice, 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-2020-02807 in Executive Session on 14 Jun 21:

, Panel Chair
, 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 7 Aug 20.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DPFDD, dated 6 Apr 21.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 8 Apr 21.
Exhibit E:	Memo for Record, AFPC/DPFDC, dated 27 Apr 21.
Exhibit F: Notification of MFR, SAF/MRBC to applicant, dated 27 Apr 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.