IN THE CASE OF: BOARD DATE: 25 August 2022 DOCKET NUMBER: AR20220001887 APPLICANT REQUESTS: * amendment of her retirement order to reflect her disability was combat related * reverse the U.S. Army Human Resources Command (HRC) decision to deny her claim for Combat Related Special Compensation (CRSC) for Post-traumatic stress disorder (PTSD) with Bipolar Disorder and Alcohol Dependence * personal appearance before the via video or telephonically APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored statement * Officer Record Brief * DA Form 638 (Recommendation for Award) Permanent Orders Number 163-010 * DA Form 67-9 (Officer Evaluation Report (OER)) ending 10 February 2009 * DA Form 67-9 ending 16 October 2009 * DA Form 638 Permanent Orders Number 227-071 * DA Form 67-9 ending 15 November 2010 * DA Form 1059 (Service School Academic Evaluation Report) Captain Career Course (CCC) * Mental Health Narrative Summary * Medical records * Physical Disability Information Report * U.S. Army Intelligence Center of Excellence Orders Number 249-0111 * DD Form 214 (Certificate of Release or Discharge from Active Duty) service ending 21 October 2012 * Department of Veterans Affairs (VA) Rating Decision, dated 16 June 2021 * U.S. Army Human Resources Command (HRC) letter, dated 16 September 2021 FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code (USC), section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states she requests the amendment of U.S. Army Intelligence Center of Excellence Orders Number 249-0111 to reflect her disability was based on injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and the disability resulted from a combat related injury. She also requests the Board overturn the HRC decision to deny her claim for CRSC for PTSD with Bipolar Disorder and Alcohol Dependence. She requests her disability be corrected to reflect in the line of duty as a direct result of an armed conflict and was combat related. Her medical records show her PTSD and bipolar episode was in direct relation to an armed conflict, the Korean War for which she was medically retired from active duty. The PTSD and bipolar episode occurred on 9 August 2011 when she was stationed in Korea and was directly related to an annual training exercise. At the time she underwent the Medical Evaluation Board (MEB), she was incapable of fully understanding or knowing how to advocate for herself. She is now seeking CRSC compensation. Though the VA awarded her a 100 percent disability for PTSD with bipolar disorders and alcohol dependence, her claim for CRSC was denied. She deployed to Afghanistan twice between 2008 and 2010 and her performance was stellar. The area was intense and dangerous, they watched people die with frequency, but she felt it was well worth the experience which she was honored to be a part of even though many of her unit did not return home. After she completed the Captain Career Course, she was given her choice of assignments, which she requested Korea. Shortly after arriving in Korea, she received daily intelligence briefings as her unit prepared for an annual training exercise. She began to experience horrific nightmares and was afraid of an impending North Korea attack that would end badly. She believes her fears were mostly due to a horrible battle plan for the exercise. She began to sleep less and within a month she felt she was losing her mind. The nightmares became so realistic that she could not tell the difference between being awake or asleep. When she reported to her supervisor how she was feeling, who notified the battalion medical officer who pulled her medical records to find that she was diagnosed with alcohol dependence and bipolar disorder when she was enlisted. She was immediately medically evacuated to Hawaii and transferred to the Warrior Transition Unit at Fort Huachuca, AZ to be medically boarded. She was retired for bipolar disorder due to her overwhelming fear of a North Korean threat. At the time PTSD was not mentioned in her records. After she was separated from active duty, she had a difficult time holding jobs, but did not seek any mental health treatment. The VA reduced her benefits from 70 percent disability to zero because she did not response to their letters or attending appointments. In 2016, she appealed to the VA to reinstate her disability, which they did, but added PTSD. In 2021, the VA increased her disability to 100 percent for PTSD with bipolar disorder and alcohol dependence. Her episodes more closely resemble that of PTSD than bipolar, and the diagnoses are intertwined and cannot be separated from one another. Over the past 10-years, she has been committed for mental health treatment, because she never tells anyone what is going on until it becomes too late, and she is then in a full-blown psychosis. There is no safe place for her to discuss issues that are bothering her due to a present world event that she is triggered by. 3. A review of the applicant's service record shows: a. The applicant enlisted in the Regular Army (RA) on 9 May 2000. b. The applicant was honorably released from active duty on 8 May 2004 and assigned to the U.S. Army Reserve (USAR) Control Group (Reinforcement). DD Form 214 shows the applicant completed 4-years of active service. c. The applicant enlisted in the Army National Guard (ARNG) on 6 October 2005. d. On 21 October 2005, Orders Number C-10-523829, issued by HRC, the applicant was assigned to the Georgia ARNG. e. On 10 May 2007, the applicant was honorably discharged from the ARNG for appointment as a commissioned officer. f. The applicant's service record is void of any evidence of her oath of office or appointment as a commissioned officer. g. On 6 April 2012, the Physical Evaluation Board (PEB) found the applicant physically unfit for retention due to bipolar disorder with a pending VA rating. The onset was reported in 2003 while enlisted. She was arrested during the period of her release from active duty as an enlisted Soldier and her commissioning during a period of heavy drinking. She received a psychology waiver for pre-existing disqualifying psychiatric conditions. The diagnosis is more than likely a genetic condition and not service connected or permanently service aggravated. Her disability was not a result from a combat related injury. h. On 5 September 2012, Orders Number 249-0111, issued by U. S. Army Intelligence Center of Excellence, the applicant was placed on the permanent disability retired list (PDRL) with a 70 percent disability, effective 22 October 2012. The disability was not based on injury or disease received in the line of duty as a direct result of an armed conflict or caused by an instrumentality of war or incurred in the line of duty during a period of war nor did the disability result from a combat related injury. i. On 21 October 2012, the applicant was honorably retired from active duty and placed on the PDRL. DD Form 214 shows the applicant completed 5-years, 2-months, and 17-days of active service. It also shows the applicant served in Afghanistan during the periods of 24 March through 12 July 2008 and 31 October 2009 through 10 November 2010. j. On 19 August 2019, HRC disapproved the applicant's claim for CRSC for bipolar disorder with alcohol dependence in early full remission and PTSD due to the MEB found her disability was not related to combat service. Being in a combat zone is not, in and of itself, sufficient to award CRSC. The applicant must prove the disability was directly related to personal exposure to armed conflict and prove she was personally present during a combat related event such as rockets, improvised explosive device, mortars, and small arms fire. k. On 30 June 2021, HRC disapproved the applicant's request for reconsideration of her claim for CRSC for PTSD with bipolar disorder and alcohol dependence. The applicant did not provide new medical evidence to show a combat related event caused her condition. The VA had associated the special monthly compensation (SMC) entitlement to a disability that was found not to be combat related. l. On 16 September 2021, HRC, disapproved the applicant's appeal of her claim for CRSC for PTSD with bipolar disorder and alcohol dependence. The documentation the applicant submitted made no mention of a combat related event in relationship to her disability. 4. The applicant provides: a. DA Form 638, which shows the applicant was awarded the Army Commendation Medal for exceptionally meritorious service during the period of 21 March through 26 July 2008 in support of Operation Enduring Freedom and the Global War on Terrorism. She contributed to the overall success of the company. The coverage her platoon of the Unmanned Aerial Vehicle System surpassed all previous and current hours of any other unit in theater. b. OER for the period of 24 June 2007 through 10 February 2009, shows the applicant's rater rated her performance as outstanding and must promote. Her leadership as the platoon leader resulted in extraordinary and unmatched aerial contribution in support of Operation Enduring Freedom. Her senior rater rated her promotion potential as best qualified. She excelled as a platoon leader during combat operations in Afghanistan. Her leadership and determination resulted in her platoon flying more sorties and accumulating the most flight hours ever achieved in theater. c. OER for the period of 11 February through 16 October 2009, shows the same person served as her rater and senior rater and rated her performance as outstanding and must promote and her potential for promotion as best qualified. She could handle a myriad of complex tasks with seamless planning and superb execution. d. DA Form 638, which shows the applicant was awarded the Army Commendation Medal for exceptionally meritorious service during the period of 14 November 2009 through 12 November 2010 as the company executive officer and brigade plans officer. She had an immediate and profound impact on the mission accomplishment and unit cohesion. e. OER for the period of 1 April through 15 November 2010, shows the applicant's rater rated her performance as outstanding and must promote. She created a plans calendar and integration with the operations outlook. She prepared synchronization formats, which were disseminated regularly. Those products were instrumental in the battalion's move into the area of operation for a combined action security execution of the Afghanistan Parliamentary elections. Her senior rater rated her promotion potential as best qualified. f. DA Form 1059 for CCC, showing the applicant achieved course standards with a grade point average of 92.94 percent. g. Mental health narrative summary for hospital admission at Brian Allgood Army Community Hospital for the period of 9 through 15 August 2011, shows the applicant was diagnosed with bipolar II and alcohol dependence in 2004 when she was an enlisted Soldier. She demonstrated pressured speech, flight of ideas and severe paranoia and became agitated in the presence of a Korean ambulance driver and had to be sedated. She refused to be near any Koreans and had to be air evacuated to the hospital as she refused ambulance transport because of her severe mistrust of the civilian Korean ambulance drivers. h. Psychiatry History and Physical report for admission on 15 August 2011 at Tripler Medical Center, restated information as provided in the mental health narrative summary from Brain Allgood Army Community Hospital. The applicant believed her problems were due to stress and anxiety and not due to being bipolar. She feared losing her job if she was diagnosed with bipolar. She reported to have been overworked and her supervisors had many problems with women. She disagreed with the diagnosis of bipolar and was reluctant to consider additional medication. She opposed a treatment plan for the Warrior Transition Battalion transfer and MEB and believes she had been misdiagnosed and refused medical treatment for bipolar disorder. i. Three pages of medical records for 19 September 2011, shows the applicant was air evacuated from Korea after 6-weeks on station to Tripler Army Community Hospital on 15 August 2011 and was discharged on 23 August 2011 with the diagnosis of bipolar disorder and a permanent profile for MEB. She refused any medications. She denies the need for medical treatment and bizarre behaviors. j. Physical Disability Information Report dated 27 August 2012, shows the applicant's disability was not based on injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a period of war nor was it incurred in a combat zone or incurred during the performance of duty in combat related operations or combat related. k. VA disability rating decision dated 16 June 2021, shows the applicant was evaluated for PTSD with bipolar and alcohol dependence which was increased from 70 percent to 100 percent, effective 1 March 2021 which the entitlement to special monthly compensation was based on housebound criteria. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found relief is not warranted. The Board found the available evidence sufficient to consider this case fully and fairly without a personal appearance by the applicant. 2. The Board found insufficient evidence indicating the applicant’s disabling conditions were combat related. The Board concurred with HRC’s note that having served in a combat zone, in and of itself, is not a basis for a combat-related designation. Based on a preponderance of the evidence, the Board determined the finding that her disabling conditions are not combat related is not in error or unjust. 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. Title 10, USC, 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 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. 2. Title 10, 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. 3. 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. 4. The Department of Defense Financial Management Regulation, Volume 7B, Chapter 63: Combat-Related Special Compensation (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, United States Code (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. a. 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 b. 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. c. 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. 5. 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. 6. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. Paragraph 2–11 states, 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) AR20220001887 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1