IN THE CASE OF: BOARD DATE: 23 February 2023 DOCKET NUMBER: AR20220007145 APPLICANT REQUESTS: reversal of the U.S. Army Human Resources Command (HRC) denial of Combat Related Special Compensation (CRSC). A personal appearance before the Board via video or telephone. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings), 2 April 2003 * DD Form 214 (Certificate of Release or Discharge from Active Duty), 2 April 2011 * Veterans Affairs (VA) Decision Rating, 14 March 2013 * DA Form 199, 12 January 2015 * Leave and Earnings Statements (LES) * CRSC Denial Letter, 22 November 2021 * DD Form 2860 (Claim for CRSC), 7 December 2021 * Sworn Declaration * VA Decision Rating, 20 December 2021 * CRSC Denial Letter, 13 January 2022 * Congressional Release Form FACTS: 1. The applicant states in pertinent part that she served 2 tours in Iraq totaling 28 months. While serving she was exposed to numerous traumatic events that she is still undergoing therapy for. She was medically retired in 2011 for migraine headaches which started after her first deployment to Iraq in 2004. At the time of her medical board she was still undergoing treatment for PTSD and did not have a complete claim until 2012, which was backdated to the date of her separation. She has requested CRSC and been denied after exhausting all appeals with HRC. 2. A review of the applicant's available service records reflects the following: a. On 22 October 1998, she enlisted in the Regular Army and had continuous service through her medical retirement. b. On 2 April 2003, a PEB convened and found the applicant physically fit and that her disposition be returned to duty as fit. c. On 3 February 2011, Headquarters, U.S. Army Garrison, Fort Stewart/Hunter Army Airfield issued Orders Number 034-0002 releasing her from assignment and duty because of physical disability incurred while entitled to basic pay and under conditions that permit her placement of the Temporary Disability Retired List (TDRL), effective 2 April 2011 with placement on the retirement list on 3 April 2011. d. DD Form 214 ending 2 April 2011 reflects an honorable retirement for disability, temporary (enhanced). Item 12 (Record of Service) shows she completed 12 years, 5 months, and 11 days. e. On 12 November 2015, a PEB convened finding the applicant physically unfit for migraines with a rating of 50 percent and recommending her disposition be permanent disability retirement. f. Her record is void of orders placing her on permanent disability retired list. g. On 29 October 2021, the U.S. Army Human Resources Command (HRC) denied the applicants CRSC claims for Post-Traumatic Stress Disorder (PTSD) at 70 percent stating no documentation in claim that established personal exposure to armed conflict in accordance with combat-related special compensation guidelines, migraine headaches at 50 percent, organic sleep related hypovent/hypoxemia at 50 percent, lumbar strain at 10 percent, tendinopathy, left hip at 10 percent, and patellofemoral syndrome, left knee at 10 percent, stating the documentation does not show accident or incident to connect disability to a combat-related event. h. On 22 November 2021, HRC denied the applicants subsequent request for CRSC claims for PTSD, migraine headaches, organic sleep related hypovent/hypoxemia, lumbar strain, tendinopathy, left hip, and patellofemoral syndrome, left knee stating second disapproval; no new medical evidence provided to show combat-related event caused condition. i. On 13 January 2022, HRC again denied the applicants request for CRSC claims for PTSD, migraine headaches, organic sleep related hypovent/hypoxemia, lumbar strain, tendinopathy, left hip, and patellofemoral syndrome, left knee, stating after reviewing all documentation in support of her claim, they were unable to overturn the previous adjudication(s). The documentation which was submitted still shows no new evidence to link the requested conditions to a combat-related event. This disapproval is now considered final. If the applicant would choose to appeal this decision, she must submit her notice of disagreement to the Army Review Boards Agency. 3. The applicant provides the following: a. VA Decision Rating dated 14 March 2013, reflective of her service-connected disabilities of PTSD, migraine headaches, organic sleep related hypovent/hypoxemia, lumbar strain, tendinopathy, left hip, and patellofemoral syndrome, left knee at a total rating of 70 percent. b. LESs showing her pay and entitlements. c. DD Form 2860 dated 7 December 2021, reflective of the applicant’s request for CRSC compensation based on her VA Rating decision of 70 percent. d. Sworn Declaration statement from Master Sergeant (MSG) (Retired) , confirming the applicant's injuries were combat-related due to ruck marches, training, platoon attack drills, foot patrols, and convoy operations, and ultimately combat operations. e. VA Decision Rating dated 20 December 2021 reflective of her service-connected disabilities of PTSD, migraine headaches, organic sleep related hypovent/hypoxemia, lumbar strain, tendinopathy, left hip, and patellofemoral syndrome, left knee at a total combined rating of 100 percent. f. Congressional Release Form authorizing Representative to advocate on behalf of the applicant with assistance in her request for correction of military records. 5. On 30 November 2022, HRC, Chief, Special Compensation Branch provided information stating: a. The applicant submitted her initial CRSC application on 20 October 2021. She requested consideration for PTSD, Migraine Headaches, Organic Sleep Related Hypovent/Hypoxemia, Lumbar Strain, Tendinopathy, Left Hip, and Patellofemoral Syndrome. However, our office was unable to verify a combat related event in relation to these injuries. The applicant’s claim has been reviewed at the initial, reconsideration, and appeal levels and denied due to insufficient evidence. b. The applicant attributed her PTSD to rocket and mortar attacks and the constant fear of being blown up while in Iraq. We have verified her service in Iraq from 30 December 2004 – 17 December 2005, and 9 September 2007- 5 October 2008. She submitted as evidence a statement from MSG (Retired) -. The statement claims that Camp Victory received rockets which hit the housing units and a HESCO barrier which resulted in the death of a Soldier. The statement, however, did not provide detail as to her location at the time of the rocket attack nor her proximity to the attack. The fact that a military post received indirect fire is not sufficient, in and of itself, to award CRSC. To award CRSC under the definition of armed conflict, the applicant must provide official military documentation which confirms their direct, personal exposure to armed conflict. c. The applicant did not state how her Migraine Headaches, Organic Sleep Related Hypovent/Hypoxemia, Lumbar Strain, Tendinopathy, Left Hip, or Patellofemoral Syndrome conditions occurred, nor did she provide evidence which verifies the conditions were the result of a combat related event. To reconsider, she must provide this office with official military medical documentation that shows how the conditions are combat-related as defined by CRSC program guidance. Medical documentation must be from the time the injury occurred and must clearly show a combat related event. 6. On 5 December 2022, the applicant was provided with a copy of the advisory opinion to provide a response. As of 20 December 2022, she did not respond. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. Based upon the available documentation, the findings and recommendation of the HRC advisory opinion and the lack of any rebuttal of those findings and recommendation submitted by the applicant, the Board concluded there was insufficient evidence of an error or injustice warrant a change to the applicant’s pay record. 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. REFERENCES: 1. Department of Defense (DOD) Financial Management Regulation 7000.14-R Volume 7B (Military Pay Policy – Retired Pay) provides in Chapter 63 (Combat Related Special Compensation (CRSC)) that CRSC is special compensation to members of the Uniformed Services who have retired pay reduced because of receiving U.S. Department of Veterans Affairs (VA) disability compensation where a portion of such VA disability compensation is the result of disabilities that are combat-related as determined by the Military Department. The CRSC program became effective 31 May 2003. Payments are made on the first day of the first month following the month in which the compensation accrued, provided the member is receiving VA disability compensation for a disability that has been determined to be combat-related by the Military Department. a. CRSC is a monthly entitlement. A retiree is entitled to CRSC for each month during which, for the entire month, the member has applied for and elected CRSC under these provisions, meets preliminary CRSC criteria, and meets final CRSC criteria. b. With regard to the effective date, payments are made on the first day of the first month following the month in which the compensation accrued, provided the member is receiving VA disability compensation for a disability that has been determined to be combat-related by the Military Department. A member may submit an application for CRSC at any time and, if otherwise qualified for CRSC, compensation will be paid for any month after May 2003 for which all conditions of eligibility were met. c. Disability ratings by the Secretary of the Military Department concerned (or designee), as of the date on which the member retired, may be used to help make determinations of whether the member meets preliminary CRSC criteria. The actual computation of the amount of CRSC payable to an eligible retiree is based solely on VA disability determinations and the amount of VA compensation paid, without regard to any disability that is not combat-related. d. When the VA makes a retroactive increase in a member's VA disability compensation pertinent to a member's combat-related disabilities under CRSC, DFAS and VA will exchange data to determine the additional retroactive amount that the member is entitled to receive as the result of CRSC. DFAS will compute the additional entitlement and advise VA in order for VA to pay the member the appropriate additional authorized VA disability compensation. Any increase affecting CRSC qualified disabilities in the current month requires that CRSC be re-computed. e. Section 630502 states, a combat-related disability is a disability with an assigned medical diagnosis code from the VA Schedule Rating of Disabilities (VASRD). The Military Departments will determine whether a disability is combat-related based on the following criteria: * 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 f. The Department will record for each disability determined to be combat-related which of the circumstances provided qualifies the disability as combat-related. A determination of combat-relatedness (see section 6306) will be made with respect to each separate disability with an assigned medical diagnosis code from the VASRD. A retiree may have disabilities that are not combat-related. Such disabilities will not be considered in determining eligibility for CRSC or the amount of CRSC payable. An 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. CRSC determinations must be made on the basis of the program criteria. g. Section 6306 (Determinations of Combat Relatedness) (1) Direct Result of Armed Conflict: a. The disability is a disease or injury incurred in the line of duty as a direct result of armed conflict. To support a combat-related determination, it is not sufficient to only state the fact that a member incurred the disability during a period of war, in an area of armed conflict, or while participating in combat operations. There must be a definite causal relationship between the armed conflict and the resulting disability. b. Armed conflict includes 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 with terrorists. (2) In the Performance of Duty Under Conditions Simulating War. In general, performance of duty under conditions simulating war covers disabilities resulting from military training, such as war games, practice alerts, tactical exercises, airborne operations, leadership reaction courses, grenade and live fire weapon practice, bayonet training, hand-to-hand combat training, repelling, and negotiation of combat confidence and obstacle courses. It does not include physical training activities such as calisthenics, jogging, formation running, or supervised sport activities. (3) Instrumentality of War: a. There must be a direct causal relationship between the instrumentality of war and the disability. It is not required that a member's disability be incurred during an actual period of war. The disability must be incurred incident to a hazard or risk of the service. b. 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. It may also include such instrumentality not designed 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. 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 of military ordnance, vehicles, or materiel. d. For example, if a member is on a field exercise, and is engaged in a sporting activity and falls and strikes an armored vehicle, then the injury will not be considered to result from the instrumentality of war (armored vehicle) because it was the sporting activity that was the cause of the injury, not the vehicle. On the other hand, if the individual was engaged in the same sporting activity and the armored vehicle struck the member, then the injury would be considered the result of an instrumentality of war. 2. Title 38, United States Code, 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. 3. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. Additionally, the ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220007145 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1