ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 24 August 2021 DOCKET NUMBER: AR20200009163 APPLICANT REQUESTS: . overturn the decision of U.S. Army Human Resources Command (HRC) to deny Combat Related Special Compensation (CRSC) . correction of rank from private first class (PFC)/E-3 to sergeant (SGT)/E-5 in the system . add to the CRSC claims for illnesses related to chemical materials of asthma, rhinitis, and sinusitis APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: . DD Form 149 (Application for Correction of Military Record) . e-mail to the Army Review Boards Agency (ARBA) for clarification on his request . e-mail requesting to add illnesses to the CRSC claim . HRC) letter, dated 3 March 2020 . Department of Veterans Affairs (VA) letter of benefits summary, dated 11 May 2020 FACTS: 1. The applicant states in effect, that the military correspondence from HRC regarding his claims for CRSC, has his rank listed as PFC where he was retired from the service in the rank of SGT. He requests that his rank in the system be corrected to reflect his correct rank of SGT. He is appealing to the ARBA to have the decision by HRC overturned to award him CRSC for the following injuries/illnesses that were combat related: . Irritable Bowel Syndrome (IBS) . tinnitus . Post-Traumatic Stress Disorder (PTSD) . sinusitis These injuries/illnesses occurred while the applicant was on active duty with the Army National Guard (ARNG). After he was released from active duty, the informal Physical Evaluation Board (PEB) found him physically unfit for retention due to PTSD with the onset that occurred in 2004, while he was deployed to Afghanistan. The PEB recommended that he be separated from the ARNG and placed on the Permanent Disability Retired List (PDRL). The PEB found the following medical conditions to be fitting for retention: . chronic sinusitis . allergic rhinitis . IBS . hydrocele . sensorineural hearing loss bilateral . tinnitus . erectile dysfunction The applicant has read information on illnesses caused by chemical materials and he requests that the Board add illnesses to his CRSC claim of asthma, rhinitis, and sinusitis. The VA has added these illnesses to his disability claims. 2. A review of the applicant's service record shows: a. The applicant enlisted in the ARNG on 19 September 2002. b. DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he was ordered to active duty for training on 22 October 2002. He was honorably released from active duty on 28 March 2003 and completed 5-months and 7-days of active service. c. On 22 June 2003, Orders Number 173-478, issued by Headquarters (HQs), Louisiana Army National Guard (LAARNG), the applicant was ordered to active duty on 7 July 2003 in support of Operation Enduring Freedom (OEF). d. The applicant was honorably released from active duty on 15 June 2004. DD Form 214 shows the applicant completed 11-months and 9-days of active service. It also shows in block 18 (Remarks) that he served in Afghanistan for the period of 16 August 2003 through 5 May 2004. e. DD Form 214 shows the applicant was ordered to active duty for special work on 30 September 2005. He was honorably released from active duty on 31 January 2006. He completed 4-months and 2-days of active service. f. The applicant was honorably released from the ARNG on 18 September 2008. National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows the applicant completed 6-years of service. g. The applicant enlisted in the ARNG on 4 June 2009. h. DD Form 214 shows that he was ordered to active duty on 1 September 2009. He was honorably released from active duty on 7 February 2010. He completed 5­months and 7-days of active service. i. The applicant extended his enlistment in the ARNG on 25 March 2012. j. DD Form 214 shows the applicant was ordered to active duty on 29 January 2013. He was honorably released from active duty on 14 August 2013. He completed 6­months and 16-days of active service. k. On 26 July 2013, Orders Number 207-200, issued by the Joint Force HQs – Louisiana, the applicant was ordered to active duty on 15 August 2013 in support of OEF. l. The applicant was honorably released from active duty on 4 September 2014. DD Form 214 shows the applicant completed 1-year and 20-days of active service. It also shows in block 18, that he served in Kuwait for the period of 21 September 2013 through 14 July 2014. m. The applicant extended his enlistment in the ARNG on: . 5 December 2015 . 21 January 2017 . 25 January 2018 n. On 25 June 2018, the PEB found that the applicant physically unfit for retention for PTSD which was incurred in the line of duty and a result of a combat related injury. The PEB recommended that the applicant be separated from the service with a 50 percent disability and placed on the PDRL. o. On 3 July 2018, Orders Number D 184-10, issued by the U.S. Army Physical Disability Agency, placed the applicant on the PDRL on 7 August 2018 with a 50 percent disability in the rank of SGT due to a line of duty, combat related injury. p. The applicant was honorably retired from the ARNG on 6 August 2018. NGB Form 22 shows the applicant completed 9-years, 2-months, and 3-days of service. q. On 5 September 2018, HRC notified the applicant that his application for CRSC was denied as he did not meet the eligibility requirements of: . Receiving military retired pay . Have 10 percent or greater VA rated injury . Military retired pay is reduced by VA disability payments (VA waiver) r. On 24 February 2019, HRC notified the applicant that his application for CRSC was partially approved (30 percent) for IBS. The application for: . PTSD with major depressive disorder . alcohol use disorder . sinusitis . tinnitus was denied as it was not combat related and not payable under CRSC. The VA associated these special monthly compensation (SMC) to a disability that was not found to be combat related. s. On 28 October 2019, HRC notified the applicant that his application for CRSC reconsideration was partially approved for IBS. HRC was unable to approve his claim for CRSC for the following: . PTSD with major depressive disorder . alcohol use disorder . sinusitis . tinnitus The applicant did not provide any new evidence from his prior application to show a combat related event caused his conditions. He did not provide any details on how his injury occurred as a result of a combat related event and he was not awarded the Combat Action Badge or any military decoration specifically for a combat related event. t. On 3 March 2020, HRC notified the applicant that his application for CRSC was partially approved for IBS and tinnitus. HRC was unable to approved his claim for CRSC for the following: . PTSD with major depressive disorder . alcohol use disorder . sinusitis The applicant's claim did not provide any documentation to link the PTSD to a combat related event and personal and psychiatrist statements that a disability is combat related cannot be used to authorize a compensation. His claim had been processed at the initial, reconsideration, and appeal levels and this determination was final. 3. The applicant provides: a. An e-mail to ARBA stating that he has read on illnesses caused by chemical materials and inquired if it was too late for him to add that the VA added 3 more presumptive conditions that were related to chemical exposure; asthma, rhinitis, and sinusitis. The applicant had been added to the burn pit registry. b. VA letter dated 11 May 2020, providing an explanation of the applicant's VA summary of benefits that shows he received a 90 percent combined service connected disability rating and is being paid at the 100 percent rate as he is unemployable due to the disabilities which are considered permanent. 4. The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed this case. Documentation reviewed included the applicant’s completed DD Form 149 and supporting documents, his ABCMR Record of Proceedings (ROP), his separation military documentation, the military electronic medical record (AHLTA), and the VA electronic medical record (JLV). Review of active duty electronic medical records (AHLTA) reveal in-service diagnoses of Adjustment Disorder, Anxiety Disorder, and Alcohol Disorder. Applicant was prescribed psychiatric medication for his conditions and seen for medication management from December 2013 to July 2014. Review of VA electronic medical record (JLV) indicates that the applicant is 90% service connected to include 70% for PTSD. Compensation & Pension (C&P) Exam dated 25 January 2016 details combat-related stressors that led to applicant’s PTSD diagnosis. Physical Evaluation Board (PEB) proceedings from 25 June 2018 found applicant to be medically unfit for PTSD with Major Depressive Disorder (MDD) with onset occurring in 2004 while applicant was deployed to Afghanistan. After review of all available information, applicant is diagnosed with combat-related PTSD for which he was medically retired and is 70% service connected by the VA. However, combat-related disability for CRSC is defined in 10 U.S.C. § 1413a(e) as a disability that is "attributable to an injury for which the member was awarded the Purple Heart" or was incurred "as a direct result of armed conflict," ''through an instrumentality of war," "while engaged in hazardous service," or "in the performance of duty under conditions simulating war." While applicant’s PTSD is combat-related, there is no evidence identified supporting that applicant’s PTSD with MDD or Alcohol Use Disorder was incurred as a direct result of any of the criteria for CRSC. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. The Board considered the review and conclusions of the medical advising official and the previous review of the applicant's request by AHRC. Evidence of record shows the applicant received orders, and was placed on the retired list at the rank of SGT. Therefore, the Board agreed his record correctly shows his rank as SGT. Based upon a preponderance of the evidence, the Board determined there is insufficient evidence that shows HRC erred when denying his CRSC request to add the contested diagnosis. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 ::: GRANT FULL RELIEF ::: GRANT PARTIAL RELIEF ::: GRANT FORMAL HEARING :XX :XX :XX 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. 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. REFERENCES: 1. Title 10, United States Code (USC), section 1413a, "CRSC, states, in pertinent part, that the Secretary concerned shall pay to each eligible combat-related disabled uniformed services retiree who elects benefits under this section a monthly amount for the combat-related disability of the retiree. The monthly amount to be paid to an eligible retiree is the amount of compensation to which the retiree is entitled under Title 38 for that month, determined without regard to any disability of the retiree that is not a combat-related disability. The amount paid to an eligible combat-related disabled uniformed services retiree for any month may not exceed the amount of the reduction in retired pay that is applicable to the retiree for that month under sections 5304 and 5305 of Title 38. 2. Title 10, USC, section 1414, "Members eligible for retired pay who are also eligible for veterans' disability compensation for disabilities rated 50 percent or higher: concurrent payment of retired pay and veterans' disability compensation" states, in pertinent part, a member or former member of the uniformed services who is entitled for any month to retired pay and who is also entitled for that month to veterans' disability compensation for a qualifying service-connected disability is entitled to be paid both for that month without regard to sections 5304 and 5305 of Title 38. A person who is a qualified retiree under this section and is also an eligible combat-related disabled uniformed services retiree under section 1413a of this Title may receive special compensation in accordance with that section or retired pay in accordance with this section, but not both. The Secretary concerned shall provide for an annual period (referred to as an open season) during which a qualified retiree shall have the right to make an election to change from receipt of special compensation in accordance with section 1413a of this Title to receipt of retired pay in accordance with this section or the reverse, as the case may be. Any such election shall be made under regulations prescribed by the Secretary concerned subject to approval by the Secretary of Defense. 3. The Department of Defense Financial Management Regulation, Volume 7B, Chapter 63: CRSC, paragraph 6303 states, a member may not be paid CRSC unless he or she has applied for and elected to receive compensation under the CRSC program by filing an application on DD Form 2860, (Claim for CRSC), with the Military Department from which he or she retired. A member may submit an application for CRSC at any time and, if otherwise qualified for CRSC. The law states that a member eligible for both CRSC, under Title 10, USC, section 1413a, and Concurrent Retirement Disability Pay, under Title 10, USC, section 1414, may not receive both, but must elect which compensation to receive. 4. Title 38, USC, sections 1110 and 1131, permit the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, an individual's medical condition, although not considered physically unfit for military service at the time of processing for separation, discharge, or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. //NOTHING FOLLOWS//