IN THE CASE OF: BOARD DATE: 30 March 2017 DOCKET NUMBER: AR20150016600 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x___ ____x___ ___x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 30 March 2017 DOCKET NUMBER: AR20150016600 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _____________x____________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. IN THE CASE OF: BOARD DATE: 30 March 2017 DOCKET NUMBER: AR20150016600 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests correction of his records to show he is entitled to Combat-Related Special Compensation (CRSC) for post-traumatic stress disorder (PTSD). 2. The applicant states that he was misdiagnosed with dysthymic disorder for a year and he now has a new diagnosis of PTSD with depressive disorder from the Department of Veterans Affairs (VA). He would like to add this disability to his CRSC claim. 3. The applicant provides: * his DD Form 214 (Certificate of Release or Discharge from Active Duty) * VA rating decision, dated 2 February 2015 * VA memorandum, dated 8 July 2015 * U. S. Army Human Resources Command (HRC), CRSC denial memorandum, dated 20 July 2015 CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the Regular Army on 24 January 1978 and held military occupational specialties (MOS) 11C (Indirect Fire Infantryman) and 75B (Personnel Administration Specialist). 3. He served in Saudi Arabia from 17 December 1990 to 31 March 1991. 4. On 25 July 1995, a Medical Evaluation Board (MEB) convened at Blanchfield Army Community Hospital, Fort Campbell, KY, to evaluate his medical conditions. After consideration of clinical records, laboratory findings, and physical examinations, the MEB found that of the seven medical conditions evaluated, only his chronic back/shoulder pain (listed as chronic cervical myofascial an lumbar pain as well as bilateral shoulder pain) were medically unacceptable and his major depressive disorder was medically acceptable. The MEB recommended his referral to a Physical Evaluation Board (PEB). 5. On 31 October 1995, a PEB convened at Walter Reed Army Medical Center (WRAMC), Washington, D.C. The PEB found his chronic back/shoulder pain prevented him from performing the duties required of his grade and specialty and determined that he was physically unfit. He was granted a 20-percent disability rating with a recommendation for separation with severance pay. The applicant noted his noncurrence with the Board findings on 21 November 1995. 6. On 1 November 1996, the Chief, Adult Psychiatry Service, WRAMC, completed a psychiatry addendum to the applicant’s MEB. He listed the applicant’s chief complaint as depressed mood since the discovery of multiple medical problems in 1994. The applicant reported stressors related to his medical problems, his spouse’s breast cancer diagnosis, teenage children, and his future after retirement. The applicant’s depressive disorder, not otherwise specified, was determined to meet retention standards. 7. On 7 February 1997, a physician at the Fort Campbell Orthopedic Clinic completed a medical addendum to the applicant’s MEB. The applicant’s chief complaint of pain in both knees was determined to be medically unacceptable for further service. 8. A PEB convened at Fort Sam Houston, TX, on 30 April 1997. The PEB, having considered the orthopedic and psychiatric addendums found his chronic knee, back and shoulder pain render him unable to perform the duties of his MOS. These conditions were assigned a 20-percent rating with a recommendation for separation with severance pay. His depressive mood disorder was not unfitting. 9. The applicant nonconcurred with the Board’s findings and recommendation on 9 May 1997. 10. On 29 May 1997, a PEB informally reconsidered his case based on additional review of the medical evidence of record and found the applicant was able to carry out the responsibilities of his assignment despite his physical problems. Further, he was eligible to retire in January 1998 and planned to submit for voluntary retirement. The PEB found he was fit for duty within the limitations of his medical profile and directed the DA Form 199 (PEB Proceedings) dated 30 April 1997 be superseded. 11. The applicant concurred with the findings and recommendation on 29 May 1997. The Secretary of the Army approved the PEB proceedings on 4 June 1997. 12. He retired from active duty on 31 January 1998. 13. The applicant applied for benefits under the CRSC program on several occasions for numerous medical conditions. Of those, his condition of dysthymic disorder was unable to be verified as a combat-related disability and denied for CRSC on 14 April 2004, 27 July 2009, 24 October 2012 (listed as depressive disorder hence forth), and 3 January 2013 (final determination). 14. One 13 January 2015, the VA increased his disability rating for PTSD with depressive disorder (previously evaluated as dysthymic disorder) from 30 percent to 50 percent, effective 27 November 2014. He subsequently, requested CRSC reconsideration for this condition on 10 February 2015. 15. On 20 July 2015, HRC informed the applicant that a final decision on his case was previously rendered on 3 January 2013; therefore, his request for reconsideration could not be processed. He was directed to file any appeal with this Board. 16. An Army Review Boards Agency psychiatrist provided an advisory opinion in this case on 27 October 2016. a. She found the applicant was diagnosed with mild depression while in the military which was found to be fitting but there is no evidence that he exhibited any symptoms of PTSD. Further, there is no evidence that he suffered from any boardable behavioral health condition. b. Although his VA examination shows he was diagnosed with PTSD, there is no evidence in the available record which shows his conditions were sustained as a direct result of armed conflict, specially hazardous duty, training exercises that simulate war, or caused by an instrumentality of war. 17. The advisory opinion was forwarded to the applicant for comment. No response was received. REFERENCES: 1. The Under Secretary of Defense, Military Personnel Policy has provided policy guidance on the processing of CRSC appeals. In that guidance it was stated that in order for a condition to be considered combat-related, there must be evidence of the condition having a direct, causal relationship to war or the simulation of war. 2. CRSC, as established by section 1413a, Title 10, U.S. Code, as amended, provides for the payment of the amount of money a military retiree would receive from the VA for combat related disabilities if it wasn’t for the statutory prohibition for a military retiree to receive a VA disability pension. Payment is made by the Military Department, not the VA, and is tax free. Eligible members are those retirees who have 20 years of service for retired pay computation (or 20 years of service creditable for reserve retirement at age 60) and who have disabilities that are the direct result of armed conflict, especially hazardous military duty, training exercises that simulate war, or caused by an instrumentality of war. Such disabilities must be compensated by the VA and rated at least 10% disabling. Military retirees who are approved for CRSC must have waived a portion of their military retired pay since CRSC consists of the Military Department returning a portion of the waived retired pay to the military retiree. DISCUSSION: 1. CRSC is specifically for those military retirees who have combat related disabilities. Incurring disabilities while in a theater of operations or in training exercises is not, in and of itself, sufficient to grant a military retiree CRSC. The military retiree must show that the disability was incurred while engaged in combat, while performing duties simulating combat conditions, or while performing especially hazardous duties such as parachuting or scuba diving. 2. The applicant’s VA Rating decision indicates his PTSD with major depressive disorder is service connected. The only stressors found in his record were reported during his MEB evaluation wherein he stated the he was depressed because his health issues and other family problems. 3. CRSC determinations require evidence of a direct, causal relationship to the military retiree's VA-rated disabilities to war or the simulation of war. There is nothing in the available records showing his PTSD resulted from armed conflict, especially hazardous military duty, training exercises that simulate war, or was caused by an instrumentality of war. The fact that he served in a theater of operations is insufficient, in and of itself, for approval of CRSC. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150016600 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150016600 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2