IN THE CASE OF: BOARD DATE: 25 October 2021 DOCKET NUMBER: AR20210005679 APPLICANT REQUESTS: correction of his record to show reversal of the U.S. Army Human Resources Command (HRC) denial of his Combat Related Special Compensation (CRSC) claim denial for Post-Traumatic Stress Disorder (PTSD). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Veterans Affairs (VA) letter * DD Form 214 (Certificate of Release or Discharge from Active Duty), ending on 27 March 2018 * DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings), dated 1 December 2017 * HRC letter, dated 7 April 2020 * Orders Number 019-0037, dated 19 January 2018 * DA Form 5893 (Soldier's Medical Evaluation Board (MEB)/PEB Counseling Checklist) * VA Adjudication, dated 9 April 2018 * Permanent Orders Number C2-131-052, dated 11 May 2010 * Memorandum, Subject: Sexual Harassment and Physical Threat Involving the applicant, dated 4 December 2019 * DA Form 2823 (Sworn Statement) * VA Adjudication, dated 4 April 2018 * Health records FACTS: 1. The applicant states he recently submitted multiple claims for PTSD to the Army HRC- CRSC which was denied. He was informed to send any additional documentation to the Army Review Boards Agency for further review and action. Documentation in the packet include his commander and team leaders sworn statements along with behavioral health evaluations from Fort Stewart, GA, and continuation of care from the VA behavioral health. The correction should be made because of the incident that transpired during his Iraq deployment while on combat mission with an Iraqi Lieutenant police officer pointing a gun to his head. According to the documentation gathered from behavioral health located on Fort Stewart, and continuation of care after active duty service from the VA this incident did trigger symptoms of combat PTSD. 2. A review of the applicant's official records shows the following: a. On 16 September 2009, the applicant enlisted in the Regular Army in military occupational specialty 13B (Cannon Crewmember). b. DD Form 214 shows from 3 July 2010 to 13 June 2011 the applicant deployed in support of Operation Iraqi Freedom. c. On 27 March 2018, the applicant was honorably retired from active duty by reason of permanent disability. He completed 8 years, 6 months, and 12 days of net active service. d. On 6 February 2019, the applicant petitioned HRC CRSC branch to be approved for CRSC for flat foot (Pes Planus), tinnitus, hearing loss, and PTSD. e. On 21 April 2019, he was approved for CRSC at 40 percent for the above mentioned conditions with the exception of PTSD. Comments show there was no supporting documents in the applicant's claim to confirm PTSD was directly caused by a specific combat-related event. f. On 7 July 2019, the applicant was informed by HRC CRSC branch his reconsideration for PTSD was denied due to official documents did not support a combat related event. g. On 7 April 2020, the applicant was informed by HRC CRSC branch his appeal had been processed and they were unable to award PTSD, osteoarthritis left wrist, and migraine headaches claim. This was the final determination. h. On 25 August 2020, the applicant was informed by HRC CRSC branch he could petition the Board for his claim. 3. The applicant provides: a. VA letter which states in pertinent part, the applicant had been diagnosed with PTSD and is service connected for the same. He reports active PTSD symptoms. b. DA Form 199 showing the applicant was physically unfit and his disposition be permanent disability retirement for left shoulder acromioclavicular joint arthropathy and left wrist grade one scapholunate ligament injury status post-surgery. c. Orders Number 019-0037, issued by Headquarters, Third Infantry Division and Fort Stewart, showing the applicant was permanently retired due to physical disability. d. DA Form 5893 showing the applicant was counseled as it pertains to his MEB/PEB. e. VA adjudication, dated 9 April 2018, showing the applicant was awarded 30 percent compensation for PTSD. f. Permanent Orders Number C2-131-052, issued by Headquarters, U.S. Army Garrison, HI, deployed the applicant in a temporary change of station status in support of Operation Iraqi Freedom. g. Memorandum, Subject: Sexual Harassment and Physical Threat Involving the applicant, wherein the author states in pertinent part; (1) The applicant was assigned as a Soldier in C Battery, 2nd Battalion, 11th Field Artillery during the unit's deployment to Iraq between July 2010 and July 2011. He assumed command of C Battery, 2nd Battalion, 11th Field Artillery in November 2010 and remained in position for the duration of the deployment to Joint Base Balad, Salahadin Province Iraq. (2) Although he was not present during the incident, Sergeant First Class (SFC) K- G- and Staff Sergeant (SSG) J- W- provided firsthand witness statements sworn under the Uniform Code of Military Justice, Article 136 legal authority subject to legal penalty if false. In both first-hand accounts, the applicant was both sexually harassed and physically threated by an armed member of the Iraqi Security Forces. He believes the statements to be factual and consistent. h. DA Forms 2823 authored by the that state in pertinent part, the Lieutenant on the Iraqi Police Force requested a kiss from the applicant. Each time the applicant refused to kiss him. During one of their leader engagements with the police force the same Lieutenant came to the applicant outside of the building in the parking lot requesting a kiss. When he came around the vehicles parked in the building he saw the Lieutenant from the Iraqi Police Force lowering his handgun and moving quickly past him. He asked the applicant what happened and the applicant informed him that the Lieutenant had put the handgun to his head until the applicant would kiss him. i. VA adjudication, dated 4 April 2018, wherein the applicant was awarded 30 percent disability for PTSD for combat, anxiety, depression, insomnia/sleep disturbances. j. Health records showing the applicant's VA behavioral health appointments and evaluations. 4. On 30 July 2021, in the processing of this case an advisory opinion was obtained from HRC, Chief Special Actions Branch, that stated in pertinent part: a. To award a condition as combat-related, the applicant is required to submit official military documentation that shows a direct link between a combat-related event and the disability claimed. Our office has reviewed the applicant's supporting documentation, DD Form 214, and available military personnel records and did not find evidence that links his PTSD to a qualifying combat related event. b. Our office is unable to award the applicant's claim for PTSD due to sexual harassment and threats from an Iraqi police officer. While traumatic, this incident does not meet the guidelines for the award of CRSC under Armed Conflict. Additionally, we have reviewed the statements written by however, program guidelines prohibit our office from using "buddy statements" for the purpose of awarding CRSC. We have reviewed and considered the statement by Major but as stated in his memorandum, he was not present at the time of the encounter. c. The applicant claimed his PTSD condition under the category of Armed Conflict. To meet the criteria for Armed Conflict, he must submit official military documentation that verifies his personal exposure to armed conflict. Examples of documentation include wartime chain of command endorsements which confirms exposure to armed conflict (wartime chain of command must be First Sergeant/Company Commander or higher), copies of combat decorations (certificates, combat badges, and DA Forms 638 (Award Recommendation)), and evaluation reports which show evidence of exposure to armed conflict. 5. On 15 August 2021, by email, the applicant responded to the advisory opinion and provided statements previously summarized or presented in the record of proceedings. 6. MEDICAL REVIEW: a. Applicant is applying to the ABCMR requesting correction of his record to show reversal of the U.S. Army Human Resources Command (HRC) denial of his Combat Related Special Compensation (CRSC) claim for Post-Traumatic Stress Disorder (PTSD). The Army Review Boards Agency (ARBA) Psychologist 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). b. The ABCMR ROP outlines the details and circumstances of the applicant's military history. He enlisted in the Regular Army on 16 September 2009 and was deployed in support of Operation Iraqi Freedom from 3 July 2010 to 13 June 2011. Applicant was honorably retired from active duty by reason of permanent disability on 27 March 2018. c. Review of active duty electronic medical records (AHLTA) reveals that applicant was self-referred for a behavioral health intake on 5 August 2016 reporting symptoms of anxiety related to experiences during deployment to Iraq to include anxiety in crowds and to loud noises, hypervigilance, and difficulty falling asleep. The documentation for this encounter states that applicant did not meet the criteria for PTSD and diagnoses him with Personal history of combat and operational stress reaction, Adjustment Disorder with Anxiety, and Unspecified Sleep Disorder. Applicant was then seen for seven sessions of outpatient counseling from October 2016 to August 2017 for symptoms related to his combat stress reaction. It is documented that his most distressing combat-related experience was when an Iraqi police officer pulled a gun on him after he declined his sexual advances. On 6 February 2018, he was cleared by behavioral health to proceed with his MEB related to physical injuries. d. Review of VA electronic medical record (JLV) indicates that applicant is 100% service connected to include 30% for PTSD and several non-BH conditions. The VA has not diagnosed applicant with any other BH conditions. e. After review of all available information, applicant is diagnosed with combat-related PTSD for which he is 30% 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." There is no evidence identified supporting that applicant's PTSD was incurred as a direct result of any of the criteria for CRSC. It is the opinion of the Agency Medical Advisor that the awarding of CRSC for applicant's PTSD is not warranted. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. The Board carefully considered the applicant's request, supporting documents, evidence in the records and the Agency Medical Advisory opinion. Based on the preponderance of the evidence available for review, the Board determined the evidence presented insufficient to warrant a recommendation for 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. Department of Defense Financial Management Regulation, Volume 7B: a. Section 630301 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, compensation will be paid for any month after May 2003 for which all conditions of eligibility were met. b. 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 c. 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. d. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210005679 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1