ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 27 June 2019 DOCKET NUMBER: AR20160017386 APPLICANT REQUESTS: reconsideration of Army Board for Correction of Military Records (ABCMR) Docket Number AR20150009937 wherein he requested award of Combat-Related Special Compensation (CRSC) for post-traumatic stress disorder (PTSD). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * Request for Reconsideration * Standard Form 600 (Chronological Record of Medical Care), dated 22 July 1994 * DA Form 3349 (Physical Profile), dated 26 January 2000 * Operative Report – Narrative Summary, dated 28 November 2000 * Medical Command Form (MEDCOM) 691 (Medical Record – Patient Release/Discharge Instructions) * Statement, dated 24 June 2000, subject: Reprisal (new evidence and multiple copies submitted) * Memorandum for Commander, 2nd Brigade, 101st Airborne Division (Air Assault), Fort Campbell, Kentucky, subject: Request for Redress Under Article 138, Uniform Code of Military Justice (UCMJ) (Army Regulation 27-10 (Military Justice)) for Applicant (new evidence and multiple copies submitted) * DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 16 July 2002 * DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 9 December 2002 * Record of Proceedings, Physical Disability Board of Review (PDRB), dated 30 November 2012 * PDRB Army Docket Number AR20120022710, dated 11 January 2013 * Memorandum for Commander, U.S. Army Physical Disability Agency, subject: Applicant AR20120022710, dated 11 January 2013 * DD Form 215 (Correction to DD Form 214), dated 25 April 2013 * Department of Veterans Affairs (VA) Rating Decision, dated 15 December 2014 (multiple copies and excerpts submitted) * DA Form 2860 (Claim for CRSC) (multiple copies) * U.S. Army Human Resources Command (AHRC), Letter to Applicant, dated 15 December 2014, subject: CRSC (previously submitted) * AHRC, Letter to Applicant, dated 20 May 2015, subject: CRSC (previously submitted) * AHRC, Letter to Applicant, dated 12 July 2017; subject: CRSC (previously submitted) * ABCMR Docket Number AR20150009937, dated 30 August 2016 * Psychiatrist Statement, dated 21 November 2017 (new evidence) * DD Form 294 (Application for a Review by the Physical Disability Board of Review (PDRB) of the Rating Awarded Accompanying a Medical Separation from the Armed Forces of the United States), dated 29 January 2019 * Facsimile, dated 27 June 2019 * Excerpt from unknown webpage pertaining to Chapter 61 retirees (medical retirees) eligible for CRSC * Excerpt from unknown source, subject: CRSC – Disabilities Presumptively Service-Connected by the VA * Excerpt from Military Times (Newspaper), dated 27 March 2013, titled "New criteria prompt resubmission of PTSD claims" FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20150009937 on 30 August 2016. (In the previous case more than 500 pages of medical documents/records were submitted by the applicant and reviewed by the Board.) 2. The applicant provided a statement dated 27 September 2016 wherein he, in effect, requested reconsideration of his application concerning awarding CRSC for PTSD incurred during the Gulf War. He states he thinks the Board missed some important information from a reprisal statement and his legal assistance attorney which, in his opinion, has something to do with his combat-related disability. He cites the AR20150009937 Record of Proceedings wherein the evidence must show his PTSD was incurred while engaged in combat, while performing duties simulating combat conditions, or while [performing] especially hazardous duties. He asserts that his PTSD and delusional disorder were caused by simulating combat conditions as shown by the Department of Veterans Affairs (VA) and the Department of Defense (DoD) Physical Disability Review Board (PDRB) ratings and decisions. In a subsequent note he states the U.S. Army never evaluated him for his PTSD, presumably while he was in service, and his delusional disorder was the result of racial discrimination. 3. The applicant submitted new evidence and argument that warrants consideration by the Board. 4. The applicant enlisted in the Regular Army on 1 November 1988. He served in Southwest Asia from 10 December 1990 to 6 March 1991 and he was promoted to the rank of staff sergeant on 1 November 1998. 5. On 16 July 2002, a PEB found the applicant's medical conditions, as documented within his MEB, rendered him physically unfit for further service and recommended his separation with severance pay. The PEB notes the applicant could perform primary duties, but his performance did not met the expectations of his supervisors. The recommended disability percentage for each disability was zero percent. On 4 September 2002, the applicant concurred with the PEB's findings and recommendation and waived his right to a formal hearing. On 4 September 2002, a Secretarial authority approved the PEB proceedings. His disabilities were as follows: * delusional disorder, persecutory type with no hospitalizations (he was not prescribed medication) * right elbow pain without history of injury or trauma (in accordance with policy, not rated because he was not taking pain medication) * chronic left ankle pain with a past history of an Achilles’ tendon rupture in 1997 (not rated because he was not taking pain medication) 6. On 9 December 2002, the applicant was honorably discharged under the provisions of paragraph 4-24b (3), Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), due to disability with severance pay. The DD Form 214 he was issued shows he completed 14 years, 1 month, and 9 days of active service. 7. In a CRSC decision letter, dated 6 March 2007, U.S. Army Human Resources Command (AHRC) denied the applicant CRSC. The letter stated records obtained from the Defense Finance and Accounting Service currently show he did not meet the preliminary eligibility requirements for CRSC for which there are no exceptions. The preliminary eligibility requirements are: * completed 20 years Active Duty service or 20 years of creditable Reserve Service for non-regular retirement * receiving military retired pay (not waived for civil service retirement) * receiving VA payments * have a 10 percent or more VA disability rating 8. On 3 June 2012, the applicant appealed his disability rating to the Physical Disability Review Board (PDBR). On 30 November 2012, the PDRB recommended recharacterization of the applicant’s discharge to show permanent disability retirement based on the following conditions in accordance with the VA Schedule for Rating Disabilities (VASRD): UNFITTING CONDITION VASRD CODES VASRD Delusional Disorder 9208 50% Right Elbow Pain 5099-5003 10% Chronic Left Ankle Pain 5099-5003 10% COMBINED 60% 9. On 11 January 2013, the Deputy Assistant Secretary, Army Review Boards Agency accepted the PDBR’s findings and recommendation. On 25 April 2013, a DD Form 215 (Correction to DD Form 214) was issued to show the applicant was retired from active duty with permanent disability under the provisions of paragraph 4-24b (1), Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). 10. In a CRSC decision letter, dated 19 July 2013, AHRC again denied the applicant CRSC. This was his second denial. The letter states AHRC was unable to verify the applicant’s disabilities were combat-related. It also informed the applicant that his documentation did not provide a linkage between his conditions and a specific combat- related event. VASRD DESCRIPTION PERCENT JUSTIFICATION/COMMENTS 8516 Right Ulnar Neuropathy, Status Post Right Ulnar Nerve Transposition with Residuals (8599- 8516) 10% No evidence in claim to show that a combat-related event caused condition. His documentation states right elbow pain without any history of trauma/injury. 5284 Achilles Tendonitis, Left, Chronic, Status Post Partial Rupture of the Left Achilles Tendon (5299-5284) 10% No new evidence in claim to show that a combat related event caused condition. In fact the evidence shows it was a partial rupture. 9203 Delusional Disorder 70% No new evidence showing a combat related (traumatic) event caused condition. 11. In a CRSC third decision letter, dated 3 September 2013, AHRC again denied the applicant CRSC. The letter states AHRC was unable to verify the applicant’s disabilities were combat-related or caused by a traumatic event. His documentation did not provide a linkage between his conditions and a specific combat-related event (traumatic event). VASRD DESCRIPTION PERCENT JUSTIFICATION/COMMENTS 8516 Right Ulnar Neuropathy, Status Post Right Ulnar Nerve Transposition with Residuals (8599- 8516) 10% Previously requested: No evidence in claim to show that a combat-related event caused condition. 5284 Achilles Tendonitis, Left, Chronic, Status Post Partial Rupture of the Left Achilles Tendon (5299-5284) 10% Previously requested: No new evidence in claim to show that a combat related event caused condition. His documentation states he was running in physical training (PT) formation over large rocks and he was injured. Under DOD Guidance, PT injuries do not qualify as combat- related events (traumatic event). 9203 Delusional Disorder 70% Previously requested: No new evidence showing a combat related event caused condition. His documentation states this condition began in 2000 and was manifested by paranoid thoughts that people were out to ruin his career. This is not considered combat related. 12. On 15 December 2014, the VA awarded the applicant service-connection for PTSD, included with his evaluation of delusional disorder effective 15 April 2014. The VA increased the applicant’s disability rating from 70 percent to 100 percent effective 15 April 2014. The applicant filed a claim for PTSD related to events during his confirmed Gulf War service in 1990 and 1991. He reported incidents in service, such as being in a long convoy headed toward enemy action, exposure to scud attacks, seeing dead bodies, and fear of hostile government or terrorist activities. The VA medical provider and examiner diagnosed PTSD and linked his duty in Southwest Asia during Desert Storm/Desert Shield. 13. In a CRSC decision letter, dated 20 May 2015, AHRC again denied the applicant CRSC. The letter states AHRC was unable to verify the applicant’s disabilities were combat-related. It also informed the applicant that his documentation did not provide a linkage between his medical conditions and a specific combat-related event. VASRD DESCRIPTION PERCENT JUSTIFICATION/COMMENTS 9208 Delusional Disorder with PTSD 100% FINAL DISAPPROVAL: no new evidence provided to show combat- related event caused condition. 8516 Right Ulnar Neuropathy, Status Post Right Ulnar Nerve Transposition with Residuals (8599- 8516) 10% FINAL DISAPPROVAL. 5284 Achilles Tendonitis, Left, Chronic, Status Post Partial Rupture of the Left Achilles Tendon (5299-5284) 10% FINAL DISAPPROVAL. 14. The applicant appealed the CRSC final denial decision to the ABCMR. On 30 August 2016, the ABCMR Board denied the applicant’s request for CRSC stating there was no evidence of record and the applicant had not provided sufficient evidence showing he met all the requirements for CRSC as provided by law. The requirement is for the evidence of record to show he was injured (in the line of duty) while engaged in combat, while performing duties simulating combat conditions, or while performing hazardous duty. [Physical fitness training injuries do not qualify a retiree for CRSC nor does typical routine training such as weapons firings or convoy operations. Deployment alone into a hazardous duty location (Gulf War 1990) does not qualify a retiree for CRSC without engagement with the enemy. There must be a traumatic event (as defined by the Department of Defense) to preliminarily qualify a retiree for CRSC consideration, provided all other criteria is met. 15. The applicant provided the following evidence for its consideration. a. On 24 June 2000, the applicant prepared a statement titled, “REPRISAL,” wherein he explains the events that occurred during a range training exercise. He was the noncommissioned officer in charge (NCOIC) of the firing range on 13 June 2000. He and the officer in charge (OIC) are minorities. It was his first time as the range NCOIC so he had to figure things out. (1) He was provided equipment (tents and radios) that were not operational. He was told by higher authority to do the best he could. (2) On 15 June 2000 the battalion commander visited the range to perform oversight and review of range operations. He did not seem pleased with range operations. He saw there was nowhere to put the ammunition (no tents) and that he, the applicant, had no effective communication (nonfunctional radios). (3) On 16 June 2000 the battalion executive officer came out to check range operations. He spoke nastily to the applicant telling him to put his gear on properly. The applicant states, "He was reprising against me because he new (sic) I was going to file the Article 138. [Uniform Code of Military Justice]." (4) On 16 June 2000 the battalion commander returned to the range because he could not communicate with the range on the battalion communications network. The applicant got blamed for the communications problem and was told he should pay more attention to the operations. The applicant states he had only one operational radio and it was hard to keep the communication networks operational. Each day a new unit came to the firing range and the unit supplied the radio operator. He states he was set up for failure by his senior leaders. (5) On 19 June 2000 he ran out of ammunition (7.62mm ammunition). Again, the battalion commander questioned him asking why he had run out of ammunition. He responded by saying it was all he received and he was told by the ammunition person that when he needed it, he would get more ammunition to run the rifle range. He could tell the battalion commander was not pleased with the fact they had run out of ammunition. (6) Also that same day a Sergeant First Class (SFC) Lexxx kept trying to call range operations with many different issues. He asked a lot of questions. The applicant informed him that a unit first sergeant was on the network, not him. SFC Lexxx then called on the SINCGARS radio and talked to the unit first sergeant. The applicant asked for a communications specialist to operate the radios because of the problems he was having. SFC Lexxx told him he would not get help. The applicant stated, "Keep in mind this sounds like a set up." (7) On 20 June 2000, SFC Lexxx can to the range and relieved the applicant replacing him with another NCO because he thought the applicant needed some time off from range operations. He was told to sign the equipment over to the new NCOIC. He was told to take a break for a day and then report back to the range on 22 June 2000. He told SFC Lexxx that it was "bullshit because that is saying he was a stay back." He had been the NCOIC of the range for 9 days and all of a sudden they wanted him to leave and then return to clean and clear the range. The applicant asserts that his replacement was a white person and with a pending visit by the commanding general, they didn’t want him, a minority, on the range so they gave him some time off. He states this is racial bias, a racist act, because there would be no minorities in the command post during the commanding general's visit. (8) The applicant explains in detail why to him replacing him near the end of range operations by a white person is racist (discriminatory) because the white person will now "shine" during the commanding general's visit. They also gave him new operational radios and other equipment such as camouflage netting to cover and protect the ammunition. They made other improvements to the site before the general's visit. He opines that his chain of command thought it was funny, when he was removed. He opines they planned it because they want him to fall on his face because he had filed a complaint – an Article 138 through the Judge Advocate General's office. (9) He concludes his statement by saying, "This is a racial act and a reprisal at on (sic) their part.” He planned to address his complaint to an outside organization. b. On 8 July 2000 a legal assistance attorney prepared a memorandum through the applicant’s chain of command to his brigade commander concerning the applicant’s request for redress under the provisions of Article 138 of the Uniform Code of Military Justice. (1) The attorney presented the facts. On 28 January 2000, the applicant filed an equal opportunity (EO) complaint against a captain and NCO in the battalion S3 shop. The investigation was unsubstantiated. However, the investigating officer did recommend the applicant be transferred to another unit because of his fear of reprisals by his current unit members. (2) There were meetings with senior NCO leadership to determine the best solution to the recommendation to move the applicant to a new unit. The applicant felt the first recommended unit would also lead to reprisals and he expressed his concerns. (3) At some point the battalion physician assistant called him to discuss his health and the possible initiation of a Military Occupational Specialty Medical Retention Board (MMRB). (4) On or about 11 April 2000, the applicant was interviewed by a new unit to discuss a position in their battalion operations as the chemical NCO; however, he was not accepted for the position. (5) The applicant signed into a different unit and requested leave which was denied because the unit was on a "Black [Training] Cycle." However, the investigator found out that other Soldiers in his new unit were on leave. (6) On 28 April 2000, the applicant found out his new chain of command had improperly learned of his EO complaint in his former unit and that he was not wanted in his new unit. The applicant surmised that his new unit's chain of command was angry that they had been forced to assess him into their unit without their consent. They knew the applicant had a reputation "for causing trouble." (7) On 3 May 2000, the applicant filed an inspector general (IG) complaint against his new command for perceived reprisals. The investigator stated, "[The applicant] believes the reprisals are racially related and are directly linked to the initial EO complaint filed in January 2000." (8) On 13 June 2000, the applicant was sent to the firing range without the proper equipment to maintain the range throughout the entire exercise. He continuously asked for equipment. On 20 June 2000, he was told he would be relieved for a day to get some rest and then redeploy to the range for recovery operations. He was replaced by a white NCO. The applicant firmly believes he was replaced for the 1 day because the commanding general was going to visit the range and the chain of command did not want a black Soldier, the applicant, on the rifle range when the commanding general came to visit. According to the legal assistance attorney, "The coincidence is too high to do it on the day the [commanding general] was present. There was plenty of time to take the [applicant] out of the field for a 'break.'" Unbeknownst to his unit leadership, the applicant overheard the conversation concerning removing him from the range and replacing him with a white NCO during the commanding general's visit. The legal assistance attorney stated, "[The applicant] believes he was set up for failure during this exercise and this was yet another reprisal against him." (9) He continues by stating, in effect, the applicant should not have been reassigned to his new unit based on the close working relationships of the chains of command. Additionally, the Privacy Act was violated when the applicant’s previous EO complaint proceeded him to his new unit where reprisals were taken. He concludes by opining that the applicant never had a chance at success due to the preconceived notions of his new chain of command. (10) He concludes by requesting the applicant be transferred to a unit with no working relationship with his previous two units. Further, he stated the applicant requested an apology from his rating chain of command c. In a handwritten note on the memorandum the applicant states he never received an apology. d. He provided a copy of his PDRB Record of Proceedings, dated 30 November 2012, with a handwritten note stating his PTSD started long before the delusional disorder. He opines his delusional disorder was acerbated by his PTSD due to racial discrimination and reprisals. He further annotated that the PDRB stated his PTSD and delusional disorder conditions did have some evidence of a stressful event while deployed in the Gulf War. He states one should look at his Army medical service treatment records for proof. e. On 15 December 2014, the VA gave the applicant a rating decision. In the decision he was granted service connection for PTSD which includes the evaluation for delusional disorder effective 15 April 2014. The evaluation and disability rating, which was 70 percent, was increased to 100 percent. Four conditions (skin, hair loss, acute sinusitis and a breathing condition) were denied. Within the VA rating decision it states he was granted PTSD with delusional disorder based on his confirmed Gulf War service in 1990-1991. Within the narrative it states he was in a long convoy headed toward enemy action, his was exposed to scud attacks, he saw dead bodies, (Highway of Death, Iraq) and feared hostile governments or terrorist attacks. He was informed that by law (United States Code of Federal Regulations) he could not receive compensation for both PTSD and delusional disorder. He was receiving compensation for delusional disorder. f. On 6 November 2017, the applicant submitted a second application to the ABCMR stating the CRSC at AHRC did not process his claim dated 22 September 2016 because his final CRSC claim had been previously processed. He had requested his records and found more evidence to support his claim so he mailed in a second DD Form 149 (Application for Correction of Military Records under the provisions of Title 10, U.S. Code, Section 1552.) He claims his duties at the firing range are combat related because it was a live fire range that simulated wartime operations. He resubmitted a second set of evidence that was previously submitted with his initial request for reconsideration including his CRSC denial letters dated 20 May 2015 and 12 July 2017. g. The applicant sent the PDRB a second application requesting their assistance with resolving his CRSC claim. His DD Form 294, dated 29 January 2019, was inserted into his ABCMR request for reconsideration application because only the ABCMR can address his claim for CRSC, not the PDRB. 16. On 14 November 2017, a medical advisory opinion was provided by the Army Review Boards Agency (ARBA) staff psychologist. She briefly restated his military history and then his medical history which showed that he self-referred himself to the Psychiatry Clinic in November 2001 with the chief complaint that people in his unit were setting him up for failure and were out to ruin his career. He was diagnosed with delusional disorder, persecutory type manifested by the persistent belief that he was the object of unfavorable attention from supervisors. During this same period the applicant was getting a divorce and experiencing occupational stress. She then outlines his MEB, PEB, PDRB and CRSC claims history. She further states she was asked to determine if his medical condition of delusional disorder with PTSD warrants CRSC. She bases her opinion on the evidence provided by the Board, the applicant’s personnel records, and a limited review of his VA record through the Joint Legacy Viewer. She opines that there is no indication his delusional disorder, diagnosed by the military, was the direct result of armed conflict or that a combat related event caused the condition. She states her opinion does not negate his VA service-connected diagnosis of PTSD. However, the VA conducts evaluations based on different standards and regulations post-service. She concludes there is no evidence that would support awarding CRSC as the guidance states in order for a condition to be considered combat-related, it must have a direct, causal relationship to war or the simulation of war. 17. On 14 November 2017, the applicant was sent a copy of the advisory opinion for his review and rebuttal. He responded by facsimile stating that as he case went on he would provide more evidence to support his contentions. As part of his rebuttal he provided the following evidence. a. On 21 November 2017, a psychiatrist provided a letter to the applicant stating he saw the applicant based on the applicant’s self-referral because the applicant still feels he is the object of unfavorable information. He states the applicant receives medical treatment from the VA and has been seen several times by Dr. Brixxx D. Shexxx and for 8 years by Dr. Ronxxx Roxxx. The applicant’s diagnosis is delusional disorder with PTSD. He states the applicant was racially discriminated against while in the service. He opines that after reading the applicant’s military records that the applicant provided to him, he believes the applicant suffers from combat-related delusional disorder with PTSD based on his experiences in the Gulf War and due to training simulations such as the firing range exercises. The doctor claims the applicant was hurt during the firing range exercises based on how he was discriminated against. (Note this opinion is not written on official letter head nor did the doctor provide his license number for verification of licensure.) b. The applicant provided a handwritten rebuttal dated 21 November 2017. He pointed out the medical advisory did not identify the fact he had carpool tunnel repair surgery due to the rifle training exercises. He opines that operating rifle training exercise is simulating war which should entitle him to CRSC. He has struggled for years with his CRSC claim trying to find the evidence that is required to support his contention he should receive CRSC for his delusional disorder with PTSD. He restates the definition that there must be a causal relationship between the simulated armed conflict and the resulting disability caused by military training. (1) He states the advisory opinion said his delusional disorder with PTSD has nothing to do with CRSC, but if you look at his reprisal statement and the "Racial Act" [discrimination] to him this simulated armed conflict because he was not at his regular job but on a firing range simulating war. On the range he was discriminated against and the testimony of the legal assistance attorney supports his position. (2) He has concerns because the medical advisory opinion never mentions anything about racial discrimination. He believes that racial discrimination that attempts to ruin a military career occurred while he was simulating war operating a firing range. (3) To him there is a causal relationship when he fell on his arm and pinched his nerve, he simulated armed conflict when performing a live fire weapons drill exercise and he lost the use of a limb because he only has one good arm (left arm). (4) The advisory also did not adequately address his Army retirement for disability based on his VA rating decisions showing he is 100 percent disabled. He opines the Department of the Army accepted the recommendation of the Department of Defense PDRB and medically retired him. With all this, he opines why is it so difficult for him to get CRSC? (5) He opines he was in combat training with live ammunition going through the live fire exercises one drill after another drill in combat gear. He then was discriminated against. The medical advisory opinion states his delusional disorder can be associated with factors such as stress, and the condition can also be linked to genetics and biological factors, such as brain abnormalities. He states he wants to be compensated for his combat training experiences because he has never been the same since. (6) He argues that if one is hurt, discriminated against, during live fire exercises is that not a causal relationship between simulating armed conflict and the resulting disability? The medical advisor never mentioned his experiences on the live fire range in the medical advisory opinion. He states, "Well, if your (sic) in combat and you get shot in the head wouldn’t that be the same as getting your brain destroyed by being racial (sic) discriminated against?” To him his experiences are like being shot in the head so for him it is a combat-related injury entitling him to CRSC. c. On 21 November 2017 by facsimile he resubmitted his request for reconsideration with duplicate evidence that was previously submitted on or about 27 September 2016. 18. On 27 March 2019 an addendum to the initial medical advisory opinion was obtained wherein the ARBA staff psychologist stated there was no change to her initial medical advisory opinion completed on 14 November 2017. In her initial medical advisory she recommended the applicant’s claim to correct his record to show authorization for CRSC should be denied as his medical condition, delusional disorder with PTSD, was not combat-related,. In her addendum, she further affirms her initial opinion because his delusional disorder cannot be linked to actual armed conflict, hazardous duty (wherein one receives hazardous duty pay – airborne training), training exercises that simulate war or caused by an instrumentality of war. She opines there is no causal relationship between a delusional disorder and weapons fire training. A copy of the complete medical advisory with addendum was provided to the Board for their review and consideration. 19. On 28 March 2019, the ARBA sent the applicant a copy of the second medical advisory opinion for his review and rebuttal. 20. On 4 April 2019, he responded by resubmitting his first rebuttal statement dated 21 November 2017 with evidence he had also previously submitted including the 21 November 2017 psychiatrist statement that was altered to show 2018. 21. On 27 June 2019, he sent a facsimile with numerous attachments. He resubmitted his 15 December 2014 VA Rating Decision wherein the VA granted him service connection for PTSD including his evaluation for delusional disorder. He also submitted webpages and news articles concerning CRSC. a. Excerpt from unknown webpage pertaining to Chapter 61 retirees (medical retirees) eligible for CRSC wherein he highlights a paragraph showing that Chapter 61 of the U.S. Code retirees who have more or less than 20 years of service are eligible for CRSC. However, CRSC entitlements are based solely on the longevity portion of the retired pay; not the disability portion of the retired pay. The excerpt then provides estimated calculations showing how CRSC can be calculated, if one is eligible. b. Excerpt from unknown source, subject: CRSC – Disabilities Presumptively Service-Connected by the VA shows the DoD determined that certain disabilities which have been service-connected by the VA based on a presumption of service-connection will also be presumed to be combat-related for CRSC. The examples provided include disabilities due to exposure to Agent Orange, radiation, mustard gas, or lewisite; unexplained illness associated with the Persian Gulf War; and disabilities rated on the basis of prisoner of war status. [This is not applicable to the applicant.] c. An excerpt from Military Times (Newspaper), dated 27 March 2013, titled "New criteria prompt resubmission of PTSD claims” which stated that retirees who have been denied claims related to PTSD are encouraged to resubmit claims to AHRC because the Army is using new, and more refined, criteria to assess claims. [This newspaper article predates the applicant’s CRSC claim applications and his multiple applications to this Board.] The article points out that eligible combat evidence includes, but is not limited to – * combat tour, or tours, highlighted by orders, a DD Form 214, Enlisted Record Brief or other official military document * combat awards, such as the Purple Heart, Combat Action Badge or Combat Infantryman Badge * line of duty investigations * performance evaluation reports specifying combat experience * any official Army documentation indicating a claimant served in a combat specialty, in actual combat or as an instrumentality of war 22. In summary, through the PDRB the applicant was rated 60 percent and retired with permanent disability for three conditions including delusional disorder that were initially rated in 2002 at zero percent. The VA under Title 38, U.S. Code and its regulations, determined the applicant had PTSD from his Gulf War (1990-1991) deployment. There is no record the applicant was injured by hostile fire, enemy or terrorists forces, or by passively participating in convoy operations on the battlefield. There is no record showing that while in service he was hospitalized for PTSD or any behavioral health condition during or post-Gulf War. The applicant applied multiple times to the AHRC for CRSC, the proponent for administering the CRSC program within the Department of the Army. The policy states each applicant has three opportunities to provide new evidence to the CRSC office for its review and consideration. After the third review and subsequent denial, an applicant must appeal to the ABCMR. On 30 August 2016 the ABCMR denied the applicant’s request for CRSC based on lack of evidence showing he met the criteria. In his second application to the ABCMR, he presents new evidence and argument wherein his performance of duty during rifle range operations including live fire operations simulated combat. During his experience as the range NCOIC, he was discriminated against and faced reprisal actions because he previously had filed an EO complaint. The legal evidence shows his EO compliant was not substantiated; however, actions by his unit leadership were reprisal in nature. In turn, he was diagnosed with delusional disorder when he sought medical treatment. The applicant’s argument is his diagnosis of delusional disorder was like "getting shot in the head" during the live fire training exercises which were simulating combat operations. Thus, his delusional disorder and VA service-connected PTSD, plus the evidence he presents shows, in his estimation, that he is eligible for CRSC. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, the advisory opinions and the applicant’s rebuttals. The Board discussed the applicant’s statement, his assertions related to his diagnosis, reprisal and combat related conditions, VA documents, previous considerations of his requests, the conclusions of the advising officials and the applicant’s statements in response. The Board concurred with the conclusions of the advising official and found insufficient evidence in the records or provided by the applicant to support a change to the applicant’s record to show eligibility for CRSC. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION 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. 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. CRSC, as established by Title 10, USC, section 1413a, as amended, provides for the payment of the amount of money a military retiree would receive from the Department of Veterans Affairs (VA) for combat-related disabilities if it weren'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 cause by an instrumentality of war. Such disabilities must be compensated by the VA and rated at least 10% disability. Military retirees who are approved for CRSC must have waived a portion of their military retired pay because CRSC requires the Military Department to return a portion of the waived retired pay to the military retiree. 2. The Under Secretary of Defense for Military Personnel Policy provided policy guidance for processing CRSC appeals. It states 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. An instrumentality of war is a vehicle, vessel, or device designated primarily for Military Service and intended for use in such Service at the time of the occurrence or injury. It may include such instrumentalities not designated primarily for Military Service if use of, or occurrence involving, such instrumentality subjects the individual to a hazard peculiar to Military Service. Such use or occurrence differs from the use or occurrence under similar circumstances in civilian pursuits. A determination that a disability is the result of an instrumentality of war may be made if the disability was incurred in any period of service as a result of such diverse causes as wounds caused by a military weapon, accidents involving military combat vehicle, injury or sickness caused by fumes, gases, or explosion or military ordinance, vehicles, or material. 3. The HRC Special Compensation Branch webpage shows the CRSC Division is responsible for verifying a claimant's injuries are directly connected to combat or combat-related operations as defined by Department of Defense CRSC Program Guidance, dated 15 April 2004. It provides criteria, terms, definitions, and explanations that apply to making combat-related determinations in the CRSC program. a. An instrumentality of war is a vehicle, vessel, or device designed primarily for military service and intended for use in such service at the time of the occurrence or injury. b. Incurrence during an actual period of war is not required. However, there must be a direct, causal relationship between the instrumentality of war and the disability. The disability must be incurred incident to a hazard or risk of the service. c. A determination that a disability is the result of an instrumentality of war may be made if the disability was incurred in any period of service as a result of such diverse causes as wounds caused by a military weapon, accidents involving a military combat vehicle, injury or sickness caused by fumes, gases, or explosion or military ordinance, vehicles, or material. 4. Effective 1 January 2008, Department of Defense implemented supplemental guidance as a result of the enactment of the NDAA for Fiscal Year 2008. This change provided special rules for CRSC eligible retirees with fewer than 20 years of service who retired under chapter 61 (Retirement or Separation for Physical Disability) of Title 10, U.S. Code, and for Temporary Early Retirement Authority (TERA) (more than 15 but less than 20 years of total active service ABCMR Record of Proceedings (cont) AR20160017386 16 1