IN THE CASE OF: 

		BOARD DATE: 13 September 2023

		DOCKET NUMBER: AR20230002325


APPLICANT REQUESTS:  in effect: correction of item 24 (Narrative Reason for 
Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) 
to show Disability, Permanent (Combat-Related) and appropriate corresponding 
separation code.

APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record)
*	Standard Form (SF) 15 (Application for 10 Point Veteran Preference)
*	DD Form 214
*	memorandum, subjected: Withdrawal of Demand for Formal Hearing
*	Army Combat-Related Special Compensation (CRSC) Decision Letter

FACTS:

1.  The applicant did not file within the 3-year time frame provided in Title 10, U.S. 
Code, 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 after his Physical Evaluation Board (PEB) proceedings, he was 
told his injuries were not combat related. Once he got out in 2013, he applied for CRSC. 
The results of the CRSC review said it was in his records that the injuries were 
sustained from combat. He now works as a general schedule (GS) civilian employee at 
Fort Leonard Wood, MO. In reviewing his DD Form 214, he showed his Civilian 
Personnel Advisory Center (CPAC) and supervisors. They told him to request a new DD 
Form 214 that does indeed read combat related.  

3.  The applicant served honorably on active duty with the United States Marine Corps 
from 26 July 1993 to 25 July 1997. He enlisted in the Regular Army on 
22 September 1998. Through a series or reenlistments, remained on active duty in the 
Regular Army.  

4.  The applicant served in Iraq for 6 September 2003 to 15 September 2004. He was 
awarded the Combat Infantry Badge on 11 March 2004.  

5.  A DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings) shows: 

	a.  An Informal PEB convened on 10 July 2012, wherein the applicant was found 
physically unfit with a recommended rating of 70 percent and that his disposition be 
permanent disability retirement. 

	b.  The PEB found the following conditions to be unfitting:

		(1)  Major Depressive Disorder and Psychotic Disorder, VA Rates as cognitive 
disorder due to traumatic brain injury (TBI), Posttraumatic Stress Disorder, Major 
Depressive Disorder, Psychotic Disorder NOS. Non-combat related, combat zone; 
onset reported to be in 2004 when [applicant] was deployed to Iraq. Initial encounter 
traces to February 2006, when he presented for auditory hallucination. He has since 
been treated with therapy and multiple trials of medications, but has not significantly 
improved. He is competent to participate in MEB/PEB proceedings, but is unfit to return 
to military duty due to the risk of decompensation, and is prohibited from carrying and 
firing a weapon. Stable. A 70 percent proposed rating by VA for cognitive impairment is 
not applied by DoD as mental health condition is separately rated at 50 percent. 

		(2)  Basilar migraine headaches. Non-combat related, non-combat zone. Onset 
of headaches is traced to January 2005, with episodes accompanied by dizziness. 
[Applicant] has been followed by Neurology and undergone more than four years of 
conservative management, but his condition has not improved to allow him to return to 
duty. Unfitting due to the decreased occupational efficiency caused by episodes. Stable. 
Rated 30 percent. 

	c.  The following conditions were found to be not unfitting:  

*	cervical spine strain
*	thoracic spine strain
*	intervertebral disc syndrome and lumbar spine strain
*	maxillary sinusitis with vasomotor rhinitis and nasal obstruction
*	obstructive sleep apnea
*	bilateral shoulder strain
*	old avulsion right elbow
*	strain, right ankle status post avulsion bilateral malleolus
*	mild reactive lung disease
*	binaural sensorineural hearing loss
*	binaural tinnitus

	d.  The PEB made the following administrative determinations:

		(1)  The disability disposition is not based on disease or injury incurred in the line 
of duty in combat with an enemy of the United States and 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 as defined by law. 

		(2)  Evidence of record reflects the individual was not a member or obligated to 
become a member of an Armed Force or Reserve thereof, or the NOAA or the USPHS 
on 24 September 1975.

		(3)  The disability did not result from a combat-related injury under in 26 USC 104 
or US 10216. 

	e.  This case was adjudicated as part of the Integrated Disability Evaluation System 
(IDES) under the 19 December 2011 Policy and Procedure Directive-type Memorandum 
(DTM) 11-015.

	f.  The applicant did not concur and request a formal hearing of his case with 
personal appearance and regularly appointed counsel on 20 July 2012.  

	g.   The proceedings were finalized on 12 December 2012.

6.  The applicant was honorably retired on 1 March 2013. His DD Form 214 shows:

*	Item 26 (Separation Code): SEJ
*	Item 28: Disability, Permanent (Enhanced)

7.  The applicant applied for CRSC on 5 June 2014. On 8 September 2014, he was 
awarded a total combat-related disability of 90 percent for:  

*	bilateral hearing loss – granted due to exposure or injury form an IED explosion
*	cervical spine strain – granted due to exposure or injury form an IED explosion
*	migraine headaches – granted due to exposure or injury form an IED explosion
*	tinnitus – granted due to exposure or injury form an IED explosion
*	cognitive disorder due to traumatic brain injury, post traumatic stress disorder, 
major depressive disorder and psychotic disorder, NOS – verified disability as 
combat-related

8.  The applicant provided:

	a.  A SF 15 showing he claims veteran’s preference based on a compensable 
service-connected disability of 10 percent or mor as determined by the DVA or disability 
retirement from a Military Service Department.  

	b.  A memorandum subject: Withdrawal of Demand for Formal Hearing showing the 
applicant, after discussing his options with his legal counsel, withdrew his demand for a 
formal PEB.  

9.  MEDICAL REVIEW:

    a.  The Army Review Boards Agency (ARBA) Medical Advisor was asked to review 
this case.  Documentation reviewed included the applicant’s ABCMR application and 
accompanying documentation, the military electronic medical record (AHLTA), the VA 
electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the 
Medical Electronic Data Care History and Readiness Tracking (MEDCHART) 
application, and/or the Interactive Personnel Electronic Records Management System 
(iPERMS).  The ARBA Medical Advisor made the following findings and 
recommendations:  
    b.  The applicant is applying to the ABCMR requesting reversal of the United States 
Army Physical Disability Agency’s (USAPDA) determination that neither of his duty 
incurred disabilities – “Major depressive disorder and psychotic disorder” and “Basilar 
migraine headaches” – was combat related.  He states:
“After my PEB [physical evaluation board] proceedings, I was told my injuries 
were not combat related.  Once I got out in 2013, I applied for CRSC [combat 
related special compensation].  The results of the CRSC review said it was in my 
records that the injuries were sustained from combat.  
I now work as a civilian (GS employee) at FT Leonard Wood.  In reviewing my 
DD 214, I showed my CPAC [civilian personnel advisory center] and supervisors.  
They told me to request a new DD 214 that does indeed read combat related.  
Please consider this request.”    
    c.  The Record of Proceedings details the applicant’s military service and the 
circumstances of the case.  The Physical Disability Information Report published 14 
December 2012 by the United States Army Physical Disability Agency show the former 
active duty Soldier was to be permanently retired for physical disability with a 70% 
military disability rating effective 11 March 2013 under provisions provided in chapter 4 
of AR 635–40, Physical Evaluation for Retention, Retirement, or Separation (20 March 
2012).  It shows none of his disabilities had been determined combat related.

    d.  A Soldier is referred to the IDES when they have one or more conditions which 
appear to fail medical retention standards as documented on a duty liming permanent 
physical profile.  At the start of their IDES processing, a physician lists the Soldier’s 
referred medical conditions in section I the VA/DOD Joint Disability Evaluation Board 
Claim (VA Form 21-0819).  The Soldier, with the assistance of the VA military service 
coordinator, lists all conditions they believe to be service-connected disabilities in block 
8 of section II or a separate Statement in Support of Claim (VA form 21-4138).  
    e.  Soldiers then receive one set of VA C&P examinations covering all their referred 
and claimed conditions.  These examinations, which are the examinations of record for 
the IDES, serve as the basis for both their military and VA disability processing.  All 
conditions are then rated by the VA prior to the Soldier’s discharge.  The physical 
evaluation board (PEB), after adjudicating the case sent them by the medical evaluation 
board (MEB), applies the applicable VA derived ratings to the Soldier’s unfitting 
condition(s), thereby determining their final combined rating and disposition.  Upon 
discharge, the Veteran immediately begins receiving the full disability benefits to which 
they are entitled from both their Service and the VA.
    f.  On 1 September 2011, the applicant was referred to the IDES  “Migraine – Basilar 
Artery.”   Based on the VA examination, he claimed approximately 10 additional 
conditions (the list of claimed condition was not found in the ePEB case file).  An MEB 
determined the applicant had three conditions which failed medical retention standards 
of AR 40-501, Standards of Medical Fitness: “Basilar migraine headaches with severe 
vertigo,” “Major depressive disorder, moderate, recurrent,” “Psychotic disorder, NOS.”  
    g.  Excerpts from his 10 October 2011 VA directed mental health examination:
“The claimant says he hears voices, is depressed, is in anger management and 
has anxiety. He also thinks he has PTSD.
Speciific History for: Depression and Anxiety and Psychosis
The claimant reports the symptoms began in 2004 as a result of hearing the 
voice of his friend saying "Here, look over here" and he'd look and there was 
enemy coming from that direction.  The friend died in 1997.  After the claimant 
got back from Iraq he heard more voices.  The claimant describes the current 
symptoms of hearing voices, dreams of people that were in Iraq and they're in his 
house, anxiety, anger issues, and depression.  The severity of the symptoms is 
moderate.
The above symptoms arc constant, continuous, or ongoing.  The claimant 
indicates the symptoms affect total daily functioning which results in his feeling 
frustrated, not sleeping well, and being worried that who he talks to is not real. 
He reports he has had trouble sleeping for 7 years ... 
The claimant indicates a history of suicide attempts described as the psychiatrist 
he sees, tells him it wasn't a suicide event but the claimant says he thinks maybe 
it was, and relates he was inspecting the roof of the barracks and was so 
engaged in talking to someone that he wasn't watching where he was going and 
almost walked off the edge some soldiers grabbed him and got his attention 
asking him what he was doing.  The event scared the claimant and after the 
soldiers got his attention, the claimant realized that the person he was talking to 
wasn't there ...
Military History:
… He served in a war zone during Somalia and Iraq.  This happened in Somalia 
in 1995 and Iraq from 2003-2004 for 3 months in Somalia and 13 months, in Iraq 
as an infantry[man] in Somalia and a squad leader in Iraq.  During his war zone 
duty he was engaged in combat activities.  He sustained the following wounds: 
an IED [improvised explosive device] landed behind the Bradley on which the 
claimant was riding.  He lost 30% hearing in his right car and 90-95% in his left 
ear.  He wears hearing aids. His sees an audiologist regularly and his most 
recent appoin1roenl with an audiologist was last week.
Mental Status Examination:
The claimant is a reliable historian.
He is occasionally disoriented to this {sic} aspects of orientation: person, time, 
place, and situation ... At the time of examination, there was no delusion 
observed.  Hallucination history is present intermittently, including talking in 
conversations initiated by someone else but what he perceives as someone 
talking to him comes from a shadow next to him.  At the time of examination, 
there was no hallucination observed.
DIAGNOSIS:
For the claimant's claimed condition of DEPRESSION,
For tile claimant's claimed condition of ANXIETY,
For the claimant's claimed condition of PSYCHOSIS,
Axis I: Post Traumatic Stress Disorder
Axis I: Major Depressive Disorder
Axis I: Psychotic Disorder Not Otherwise Specified
Axis 1: Alcohol Abuse, In Full Remission
Axis 1: Cognitive Impairment at least as likely as not due to TBI [traumatic brain 
injury]
The symptoms of each mental disorder can be delineated from each other but 
not to the fullest extent as diagnosis are interrelated with each other as described 
below.  
PTSD caused the irritability, anger, and exacerbated the hypervigilance of the 
claimant's borderline personality traits.  The PTSD is as likely as not the result of 
the head injury he sustained in Iraq.  The PTSD and head injury caused the 
depression. 
The Psychotic Disorder with a persistent auditory hallucination is as most likely 
as not due to the head injury sustained in combat in Iraq.  
The alcohol abuse occurred at age 18 during the claimant's service in the Marine 
Corps and is in full remission.”
    h.  The onset and evolution of his mental health condition as documented in MEB 
psychiatric narrative summary:
This soldier has a depressive-spectrum and psychotic illness that falls beneath 
medical retention standards in the U.S. Army.  
This soldier was in his usual state of uncompromised emotional health until 2004 
while on his second combat deployment to Iraq.  He began experiencing auditory 
hallucinations in the form of his best friend who died in 1997.  He reported the 
voice was telling him to look in certain directions and he stated it was responsible 
for keeping him alive.  He reported this voice was external.  Upon returning from 
this deployment, he experienced significant emotional stress due to loss in the 
family, and other soldier's using him as a sounding board for their problems.
He stated this increased his stress level and the auditory hallucinations. At one 
point he was inspecting the barracks and ended up almost walking off the roof 
because he was actively interacting with the voices and not attending to his 
surroundings.  
He went to behavioral Health at Fort Riley, Kansas.  He was prescribed Ambien 
for sleep and another medication. At that point, he began hearing a different 
voice, a "demonic, menacing" voice outside his window.  He stated what 
bothered him the most was that the voice was pronouncing his name like his 
mother, and only her, would.  He was then seen in counseling and psychiatry for 
one year and was still hearing the voices and was changing his MOS when a 
mental health professional stated he was fine and told him not to come back for 
further treatment, in 2006. 
He had a break in treatment until 2011.  During that time, he was still hearing 
voices, but did not find them particularly bothersome.  He stated he would 
interact with the voices and at time would be startled because he would believe 
he was talking to someone he knew and they would walk into the room and not 
know what the conversation was all about.  He reported he began having 
nightmares regarding events during his deployments approximately in November 
of 2010.
Over time, in the context of no treatment for an extended time period, the 
soldier's psychiatric symptoms began to significantly interfere with his social 
interpersonal functioning, his intimate relationships, and his capacity to function 
effectively in the workplace.  As his clinical symptoms stagnated, this patient 
made initial contact with army mental health service in the early August 2011.”
    i.  The provider diagnosed him with “Major Depressive Disorder, moderate, recurrent” 
and “ Psychotic Disorder, NOS.”
    j.  His TBI and headaches as documented in the addendum to the VA directed mental 
health examination: 
“History as Related by the Claimant:
Specific History for: Traumatic Brain Injury …
The claimant reports that the first injury occurred in the Marines at Camp 
Pendleton during training.  The second injury occurred in Iraq in 2004 from an 
Improvised Explosive Devise ... He reports the severity rating at the time of his 
head injury was mild ...
He states he does experience lightheadedness described as 5 times per day. He 
indicates he does experience spinning sensation described as 3 times per day. 
The claimant details having a seizure disorder described as Basilar Artery 
Migraines (mimic strokes) 3 times per day.”
    k.  The onset of his headaches as documented in the neurologist’s MEB narrative 
summary:
“… The Servicemember has been followed by myself since August 2008 for a 
history of recurrent headaches. The Servicemember first developed headaches 
in 1998, which continued for about 3 years, until a period of time he was 
stationed in Hawaii.  He indicated when he was in the Marine Corps prior to 
joining the Army in 1997, he had a concussion related to being too close to a 
demolition explosion.  He indicated he experienced a loss of consciousness for a 
very short period of time and was dazed, again, for a short period of time. After 
he joined the Army in 1998, he began to develop recurrent episodes that 
consisted of a pressure sensation in the right frontal area ...
He indicated when he deployed from 2004 through 2005, he was exposed to an 
improvised explosive device blast and was momentarily dazed with one blast.  
He also has a history of sustaining concussions while playing football in high 
school that consisted of being dazed without loss of consciousness.  In any 
event, his headaches have been present since 2004 and have been frequent and 
severe.  I have treated him with a variety of agents, including Topamax, 
Depakote, and amitriptyline.  None of these have been of benefit in relieving his 
headaches.  He was seen for a second opinion in June of 2010 at the University 
of Missouri by Dr. R., who reviewed his history and felt his history was consistent 
with basilar artery migraine ...
For the last year, he has been having almost daily attacks consisting of 
dizziness; complaints of stinging on his face; and spots in his vision that consists 
of whirling lights in his periphery that last several minutes followed by a diffuse 
throbbing headache that he rates with a severity of 4/10.  The headache will last 
until he goes to sleep.  If he does not fall asleep, the headaches persist and can 
worsen.  At times, he has had nausea and vomiting with the headaches.  Despite 
treatment with a variety of agents, he has not improved.
Assessment: Frequent and severe incapacitating episodes of basilar artery 
migraine despite adequate treatment.
Recommendation: At his point in time, the Servicemember does not meet 
retention standards in accordance with AR 40 -501, Chapter 3-3eg and needs to 
be referred to a Medical Evaluation Board.”
    l.  From the WebMd website for basilar migraine headaches:
“Migraine with brainstem aura or MBA (formerly known as basilar migraines) are 
headaches that start in the lower part of the brain, called the brainstem. They 
cause symptoms such as dizziness, double vision, and lack of coordination. 
These changes, called an aura, can happen about 10 minutes to 45 minutes 
before your head hurts. The headache pain of a basilar migraine often starts on 
one side of the head and then gradually spreads and gets stronger.
This type of migraine can last anywhere from 4 to 72 hours. And it takes time to 
recover from one. You may feel drained for up to 24 hours after it’s over.
Triggers may include: Alcohol, Stress, Lack of sleep, Some medications, Hunger, 
Female hormone changes, Bright lights, Caffeine, Nitrites in some foods, like 
sandwich meat, bacon, and processed foods, Overdoing physical activity, and 
Weather or altitude.
Symptoms differ for everyone, but some are typical: Nausea, Vomiting, 
Sensitivity to light and sound, Cold hands or feet, Dizziness, Double vision or 
graying of vision, Slurred speech or trouble speaking, Temporary blindness, Loss 
of balance, Confusion, Trouble hearing, Body tingling, and Loss of 
consciousness.” (https://www.webmd.com/migraines-headaches/basilar-artery-
migraines-causes-symptoms-tests-and-treatments)
    m.  Following completion of his MEB, the applicant requested an impartial physical 
review to address several concerns.  The one related to this case was his mental health 
diagnosis:
I am seeking a physician's (psychologist or psychiatrist) consultation regarding 
my diagnosis of major depressive disorder, as contrasted with the VA's diagnosis 
of PTSD.  I have read the Reconciliation of Apparent Inconsistencies regarding 
the statement that there is no indicator from my medical record that the focus of 
my treatment has been centered around trauma.  However, I have been seeing 
Dr. S. since August regarding combat trauma and PTSD issues.  I would like a 
physician's opinion whether my behavioral health conditions are combat trauma 
related.”
    n.  Form the Chief of Outpatient Psychiatrist’s 15 March 2012 response:
“After thorough review of the provided MEB documents and a complete review of 
SSG [Applicant]'s electronic medical record the following information regarding 
his mental health history was found. SSG [Applicant] has no documented history 
of PTSD in his military medical record.  He has consistently been diagnosed with 
Major Depressive Disorder and psychotic symptoms since April 2006.  Though 
he has reported some symptoms of anxiety, they have been and continue to 
seem most appropriately attributed to the aforementioned diagnoses of Major 
Depression and Psychosis NOS [not otherwise specified]. Thus, it is opined that 
his current mental health MEB diagnoses provide an accurate depiction of his 
mental state.
In regard as to whether his symptoms are combat trauma related, record review 
did indicate that he reported first experiencing symptoms of psychosis and 
depression during his deployment to Iraq in 2004.  PTSD tends to be viewed as 
the prototypical mental health diagnosis associated with combat trauma, 
however, depression and psychosis are also problems that can arise from the 
stress and trauma of a combat environment.  Thus, in response to this question, 
this reviewer would opine that his symptoms were initially precipitated by the 
stress of a combat environment and have not completely remitted since that 
time.”
    o.  Essentially all Soldiers serving in a hazardous duty pay area are exposed to “the 
stress of a combat environment” and this per se does equate to combat related as 
defined by law.  Section b(3) of 26 U.S. Code §?104 requires there be a cause-and-
effect relationship in order to establish the finding that a medical condition is combat 
related:
*	Special rules for combat-related injuries:  For purposes of this subsection, the 
term “combat-related injury” means personal injury or sickness—
*	which is incurred— 
*	as a direct result of armed conflict,
*	while engaged in extra-hazardous service, or
*	under conditions simulating war; or
*	which is caused by an instrumentality of war

    p.  On 4 April 2012, the applicant agreed with the board’s findings and 
recommendation and his case was forwarded to a PEB for adjudication.
    q.  The MEB determined eleven other medical conditions met medical retention 
standards.  On 20 March 2015, the applicant agreed with the MEB’s findings and 
recommendation and his case was forwarded to a physical evaluation board (PEB) for 
adjudication.
    r.  The applicant’s Physical Evaluation Board (PEB) Proceedings (DA Form 199) 
dated 10 July 2012 shows the board determined his “Major Depressive Disorder and 
Psychotic Disorder, VA Rates as cognitive disorder due to traumatic brain injury (TBI),
Posttraumatic Stress Disorder, Major Depressive Disorder, Psychotic Disorder NOS” 
and “Basilar migraine headaches” were unfitting conditions for continued military 
service.  They determined the remaining 11 conditions were not unfitting for continued 
military service.  

    s.  The PEB made the administrative determination that neither disability was combat 
related:  They found no evidence that one of these disabilities was the direct result of 
armed combat; was related to the use of combat devices (instrumentalities of war); the 
result of combat training; incurred while performing extra hazardous service though not 
engaged in combat; incurred while performing activities or training in preparation for 
armed conflict in conditions simulating war; or that he was a member of the military on 
or before 24 September 1975.
    t.  The PEB then applied the VA derived ratings of 50% and 30% respectively and 
recommended the applicant be permanently retired for physical disability with a 
combined military disability rating of 70%.  On 20 July 2012, after being counseled on 
the PEB’s findings and recommendation by his PEB liaison officer, he initially non-
concurred with the board’s findings, requested a formal hearing with regularly applicant 
counsel, and requested a VA reconsideration of his disability ratings.  However, on 12 
October 2012, he requested to withdraw his requests for a formal hearing and a VA 
reconsideration of his ratings:
*	Pursuant to AR 635-40, paragraph 4-21a, and after discussing my options with 
my legal counsel, I hereby withdraw my demand for the formal Physical 
Evaluation Board (PEB) hearing scheduled for Wednesday, 17 October 2012.
*	I will not contest the Informal PEB finding of Unfit for Duty with a combined rating 
of 70% (50% for Major Depressive Disorder and Psychotic Disorder; 30% for 
migraines) and permanent disability retirement.
*	I no longer desire a VA reconsideration of the above-described rating 
percentages.
*	Pursuant to AR 635-40, paragraph 4-20f (2); should I discover any new or 
additional evidence, I reserve the right to submit a request for reconsideration.”

    u.  USAPDA authenticated his DA 199 for the Secretary of the Army on 12 December 
2012

    v.  The applicant’s hand-written statement on his Claim for Combat-Related Special 
Compensation (DD Form 2860) signed 5 June 2014 is incongruous what was has been 
documented in his DES case file.  Block J of the form requests “In your own words, 
describe the events surrounding the disability and how it meets the guidelines of 
combat-related.”  He wrote:

“Bradley [infantry fighting vehicle] was hit by an IED, pushed the vehicle off a 4 ft. 
drop.  When impact, was launched across vehicle striking head.  That night, ear 
popped (green-reddish substance leaked out – now with hearing aids).  Started 
having headaches and hearing voices.  Now constantly hear voices or 
experience flashbacks.”

    w.  Even without this incongruity, the combat related evidentiary requirements used in 
the disability process are different from those for awarding CRSC, and these 
determinations come under different sections of US Code.  While the United States 
Army Physical Disability Agency (USAPDA) determinations are made under 26 USC 
104 or 10 USC 10216, combat related determinations for the purpose of CRSC are 
made under the provisions of 10 USC 1413a and Department of Defense Financial 
Management Regulation 7000.14R, Volume 78, Chapter 63.  Thus, a combat related 
determination made by the USAPDA does not automatically qualify a disability for 
CRSC, nor does a combat related finding for CRSC automatically qualify for an 
affirmative combat related finding by the USAPDA.  

    x.  It is the opinion of the ARBA Medical Advisor there is insufficient probative 
evidence upon which to reverse the United States Army Physical Disability Agency’s 
non-combat related determinations for either his mental health condition or migraine 
headache condition.


BOARD DISCUSSION:

1.  After reviewing the application, all supporting documents, and the evidence found 
within the military record, the Board found that relief was not warranted. The Board 
carefully considered the applicant's record of service, documents submitted in support 
of the petition and executed a comprehensive and standard review based on law, policy 
and regulation. Upon review of the applicant’s petition, available military records and 
medical review, the Board concurred with the advising official finding insufficient 
probative evidence upon which to reverse the United States Army Physical Disability 
Agency’s non-combat related determinations for either his mental health condition or 
migraine headache condition. Evidence in the record show the applicant concurred with 
the with the MEB’s findings and recommendation and his case was forwarded to a 
physical evaluation board (PEB) for adjudication.

2.  Evidence of record shows, at the time of separation, documentation supports the 
narrative reason for separation properly identified on the DD Form 214.  As such, the 
Board determined under liberal consideration changes to the applicant’s narrative 
reason are not warranted. Furthermore, the Board determined there was insufficient 
evidence of an error or injustice which would warrant a change in the separation code. 
Based on this, the Board denied relief.

?
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, U.S. Code, section 1552(b), provides that applications for correction of 
military records must be filed within 3 years after discovery of the alleged error or 
injustice. This provision of law also allows the 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.  Army Regulation 635-5-1 (Personnel Separations - Separation Program Designator 
(SPD) Codes) prescribes the specific authorities (statutory or other directives), reasons 
for separating Soldiers from active duty, and the separation program designator (SPD) 
codes to be entered on DD Form 214 (Certificate of Release or Discharge from Active 
Duty). Table 2-3 (SPD codes applicable to enlisted personnel) shows:  

	a.  in Rapid Action Revision (RAR), effective 20 September 2011: 

*	SFJ Disability, Permanent
*	WFJ Disability, Permanent

	b.  in regulation, effective 13 February 2019:

*	LER - Disability, other (enhanced)
*	SEJ - Disability, permanent (enhanced)
*	SFJ - Disability, permanent
*	VEJ - Disability, permanent (enhanced)
*	WEJ - Disability, permanent (enhanced)

	c.  in regulation, effective 2 March 2022:

*	SEA - Disability, combat related
*	SEJ - Disability, permanent IDES

3.  AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 
establishes the Army Disability Evaluation System and sets forth policies, 
responsibilities, and procedures that apply in determining whether a Soldier is unfit 
because of physical disability to reasonably perform the duties of his office, grade, rank, 
or rating. Only the unfitting conditions or defects and those which contribute to unfitness 
will be considered in arriving at the rated degree of incapacity warranting retirement or 
separation for disability. Once a determination of physical unfitness is made, all 
disabilities are rated using the Department of Veterans Affairs Schedule for Rating 
Disabilities (VASRD).

	a.  Paragraph 3-2 states disability compensation is not an entitlement acquired by 
reason of service-incurred illness or injury; rather, it is provided to Soldiers whose 
service is interrupted and who can no longer continue to reasonably perform because of 
a physical disability incurred or aggravated in military service.

	b.  Paragraph 3-4 states Soldiers who sustain or aggravate physically-unfitting 
disabilities must meet the following line-of-duty criteria to be eligible to receive 
retirement and severance pay benefits:

		(1)  The disability must have been incurred or aggravated while the Soldier was 
entitled to basic pay or as the proximate cause of performing active duty or inactive duty 
training.

		(2)  The disability must not have resulted from the Soldier's intentional 
misconduct or willful neglect and must not have been incurred during a period of 
unauthorized absence.

	c.  Paragraph 4-19.j. states: Armed conflict—instrumentality of war. Certain 
advantages accrue to Soldiers who are retired for physical disability and later return to 
work for the Federal Government when it is determined that the disability for which 
retired was incurred under specific circumstances. These advantages concern 
preference eligible status within the Civil Service system (Title 5, United States Code, 
Section 3501, (5 USC 3501)).

4.  Department of Defense Financial Management Regulation provides in chapter 63, 
paragraph 630101 the CRSC was effective on 31 May 2003 to provide special 
compensation to members of the uniformed service who may have retired pay reduced 
by reason of receiving VA disability compensation where a portion of such VA 
compensation is the result of disabilities that are combat-related.  Eligibility 
requirements have changed since its inception. CRSC is not military retired pay. It is 
payable from funds appropriated for pay and allowance payable by the Secretary of the 
Military Department concerned. 

	a.  Paragraph 6302 (Determinations of Combat-Relatedness) The following criteria, 
terms, definitions, and explanations will apply to making combat related determinations 
in the CRSC Program. 630201 (Direct Result of Armed Conflict) subparagraph 
630201(A) states the disability is a disease or injury incurred in the line of duty as a 
direct result of armed conflict. The fact that a member incurred the disability during a 
period of war, or in an area of armed conflict or while participating in combat operations 
is not sufficient to support a combat-related determination. There must be a definite 
causal relationship between the armed conflict and the resulting disability. 

	b.  Paragraph 6303 (Entitlement) states CRSC is a monthly entitlement.  A member 
must file an application with the Military Department from which the member retired to 
determine entitlement. A retiree is entitled to CRSC for each month during which, for the 
entire month, the member: 630301 (A) has applied for and elected CRSC under these 
provisions (section 6304). 630301 (B) meeting the preliminary CRSC criteria (Section 
6305) and 630301 (C) meets the final criteria (section 6306) that is, has a combat-
related disability or disabilities.

	c.  Paragraph 630602 (Other Combat-Related Disabilities) states a combat-related 
disability is a disability with an assigned medical diagnosis code from VASRD that was 
incurred. 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 

	d.  The Department shall record for each disability determined to be combat-related 
which of the circumstances provided above qualifies the disability as combat-related. A 
determination of combat-relatedness (see section 6302) 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.

	e.  Paragraph 631001 (Basis for Determination) states determinations of whether a 
disability is combat-related will be based on the preponderance of available 
documentary information where quality of information is more important that quantity.  
All relevant documentary information is to be weighed in relation to known facts and 
circumstances, and determinations will be made on the basis of credible, objective 
documentary information in the records as distinguished from personal opinion, 
speculation and conjecture.  The burden of proof that a disability is combat-related rests 
with the applicant and the member is required to provide copies of documents in his or 
her possession to the best of his or her ability.  Military Departments may compile a list 
of typical documents used for CRSC verification. 

5.  Title 10, U.S. Code, section 1413a, as amended, established CRSC. CRSC provides 
for the payment of the amount of money a military retiree would receive from the VA for 
combat-related disabilities if it were not for the statutory prohibition for a military retiree 
to receive a VA disability pension.  Payments under this section are not retired pay. 
Payment is made by the Military Department, not the VA, and is tax free.  Eligible 
retirees are those who have combat related disabilities and are entitled to retired pay. 
The Secretary of Defense shall prescribe procedures and criteria under which a 
disabled uniformed services retiree may apply to the Secretary of a military department 
to be considered to be an eligible combat-related disabled uniformed services retiree.  
Such procedures shall apply uniformly throughout the Department of Defense.  A 
combat-related disability means a disability that is compensable under the laws 
administered by the Secretary of Veterans Affairs and that – 

	a.  is attributable to an injury for which the member was awarded the Purple Heart; 
or

	b.  was incurred (as determined under criteria prescribed by the Secretary of 
Defense) as a direct result of armed conflict, engaged in hazardous service, in the 
performance of duty under conditions simulating war or through an instrumentality of 
war.

6.  Title 10, USC, chapter 61, provides the Secretaries of the Military Departments with 
authority to retire or discharge a member if they find the member unfit to perform military 
duties because of physical disability. The U.S. Army Physical Disability Agency is 
responsible for administering the Army physical disability evaluation system and 
executes Secretary of the Army decision-making authority as directed by Congress in 
chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 
(Physical Evaluation for Retention, Retirement, or Separation).
	a.  Soldiers are referred to the disability system when they no longer meet medical 
retention standards in accordance with Army Regulation 40-501 (Standards of Medical 
Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical 
profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention 
Board; and/or they are command-referred for a fitness-for-duty medical examination.

	b.  The disability evaluation assessment process involves two distinct stages: the 
MEB and PEB. The purpose of the MEB is to determine whether the service member's 
injury or illness is severe enough to compromise his/her ability to return to full duty 
based on the job specialty designation of the branch of service. A PEB is an 
administrative body possessing the authority to determine whether or not a service 
member is fit for duty. A designation of "unfit for duty" is required before an individual 
can be separated from the military because of an injury or medical condition. Service 
members who are determined to be unfit for duty due to disability either are separated 
from the military or are permanently retired, depending on the severity of the disability 
and length of military service. Individuals who are "separated" receive a one-time 
severance payment, while veterans who retire based upon disability receive monthly 
military retired pay and have access to all other benefits afforded to military retirees.

	c.  The mere presence of a medical impairment does not in and of itself justify a 
finding of unfitness. In each case, it is necessary to compare the nature and degree of 
physical disability present with the requirements of the duties the Soldier may 
reasonably be expected to perform because of his or her office, grade, rank, or rating. 
Reasonable performance of the preponderance of duties will invariably result in a 
finding of fitness for continued duty. A Soldier is physically unfit when a medical 
impairment prevents reasonable performance of the duties required of the Soldier's 
office, grade, rank, or rating.

7.  Title 38 USC, section 1110 (General - Basic Entitlement) states for disability resulting 
from personal injury suffered or disease contracted in line of duty, or for aggravation of 
a preexisting injury suffered or disease contracted in line of duty, in the active military, 
naval, or air service, during a period of war, the United States will pay to any veteran 
thus disabled and who was discharged or released under conditions other than 
dishonorable from the period of service in which said injury or disease was incurred, or 
preexisting injury or disease was aggravated, compensation as provided in this 
subchapter, but no compensation shall be paid if the disability is a result of the veteran's 
own willful misconduct or abuse of alcohol or drugs.

8.  Title 38 USC, section 1131 (Peacetime Disability Compensation - Basic Entitlement) 
states for disability resulting from personal injury suffered or disease contracted in line 
of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of 
duty, in the active military, naval, or air service, during other than a period of war, the 
United States will pay to any veteran thus disabled and who was discharged or released 
under conditions other than dishonorable from the period of service in which said injury 
or disease was incurred, or preexisting injury or disease was aggravated, compensation 
as provided in this subchapter, but no compensation shall be paid if the disability is a 
result of the veteran's own willful misconduct or abuse of alcohol or drugs.

9.  AR 40-501 (Standards of Medical Fitness) governs medical fitness standards for 
enlistment, induction, appointment (including officer procurement programs), retention, 
and separation (including retirement). The Department of Veterans Affairs Schedule for 
Rating Disabilities (VASRD). VASRD is used by the Army and the VA as part of the 
process of adjudicating disability claims. It is a guide for evaluating the severity of 
disabilities resulting from all types of diseases and injuries encountered as a result of or 
incident to military service. This degree of severity is expressed as a percentage rating 
which determines the amount of monthly compensation.

10.  Department of Defense Instruction (DODI) 1332.38 (Physical Disability Evaluation), 
paragraph E3.P5.2.2 (Combat-Related), covers those injuries and diseases attributable 
to the special dangers associated with armed conflict or the preparation or training for 
armed conflict. A physical disability shall be considered combat related if it makes the 
member unfit or contributes to unfitness and was incurred under any of the following 
circumstances:

*	as a direct result of armed conflict
*	while engaged in hazardous service
*	under conditions simulating war
*	caused by an instrumentality of war

11.  DODI 1332.38, paragraph E3.P5.2.2.3 (Under Conditions Simulating War), in 
general, covers disabilities resulting from military training, such as war games, practice 
alerts, tactical exercises, airborne operations, leadership reaction courses, grenade and 
live-fire weapons practice, bayonet training, hand-to-hand combat training, rappelling, 
and negotiation of combat confidence and obstacle courses. It does not include physical 
training activities, such as calisthenics and jogging or formation running and supervised 
sports.

12.  Appendix 5 (Administrative Determinations) to enclosure 3 of DODI 1332.18 
(Disability Evaluation System) (DES), defines armed conflict and instrumentality of war 
as follows:

	a. Incurred in Combat with an Enemy of the United States: The disease or injury was 
incurred in the line of duty (LOD) in combat with an enemy of the United States.

	b. Armed Conflict: The disease or injury was incurred in the LOD as a direct result of 
armed conflict (see Glossary) in accordance with sections 3501 and 6303 of Reference 
(d). The fact that a Service member may have incurred a disability during a period of 
war, in an area of armed conflict, or while participating in combat operations is not 
sufficient to support this finding. There must be a definite causal relationship between 
the armed conflict and the resulting unfitting disability.

	c. Engaged in Hazardous Service:  Such service includes, but is not limited to, aerial 
flight duty, parachute duty, demolition duty, experimental stress duty, and diving duty.

	d. Under Conditions Simulating War: In general, this covers disabilities resulting from 
military training, such as war games, practice alerts, tactical exercises, airborne 
operations, and leadership reaction courses; grenade and live fire weapons practice; 
bayonet training; hand-to-hand combat training; rappelling; and negotiation of combat 
confidence and obstacle courses. It does not include physical training activities, such as 
calisthenics and jogging or formation running and supervised sports.

	e. Caused by an Instrumentality of War: Occurrence during a period of war is not a 
requirement to qualify. If the disability was incurred during any period of service as a 
result of 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 material, the criteria are met. However, there must be a direct causal 
relationship between the instrumentality of war and the disability. For example, an injury 
resulting from a Service member falling on the deck of a ship while participating in a 
sports activity would not normally be considered an injury caused by an instrumentality 
of war (the ship) since the sports activity and not the ship caused the fall. The exception 
occurs if the operation of the ship caused the fall.

13.  Section 1556 of Title 10, USC, requires the Secretary of the Army to ensure that an 
applicant seeking corrective action by the Army Review Boards Agency (ARBA) be 
provided with a copy of any correspondence and communications (including summaries 
of verbal communications) to or from the Agency with anyone outside the Agency that 
directly pertains to or has material effect on the applicant's case, except as authorized 
by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian 
and military medical and behavioral health professionals and are therefore internal 
agency work product. Accordingly, ARBA does not routinely provide copies of ARBA 
Medical Office recommendations, opinions (including advisory opinions), and reviews to 
Army Board for Correction of Military Records applicants (and/or their counsel) prior to 
adjudication.
//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	AR20230002325


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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