Docket No: 4066-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Ref: (a) Title 10 U.S.C. 1552 (b) Title 10 U.S.C. 1413a Encl:(1) DD Form 149 w/attachments (2) United States District Court for the No. 18-cv-2950 (DLF) of 11 April 2019 (3) Petitioner’s supplemental evidence of 23 May2019 (4) Office of the Assistant Secretary of Defense memorandum of 7 April 2020 (5) Petitioner response to advisory opinion of 25 June 2020 (6) SECDEF CRSC guidance of January 2004 1. Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner, filed enclosure (1) with the Board for Correction of Naval Records (Board), requesting that Petitioner’s naval record be corrected to award him Combat Related Special Compensation (CRSC) for his service connected Post-Traumatic Stress Disorder based on an injury suffered due to armed conflict and instrumentality of war. His application was denied on 14 December 2017. Petitioner subsequently filed suit in U.S. District Court for the . Based on a motion for a voluntary remand, the District Court issued enclosure (2) directing the Board to obtain an advisory opinion from Director of Compensation, Office of the Deputy Under Secretary of Defense (Military Personnel Policy) and reconsider enclosure (1). Accordingly, Petitioner’s case was reconsidered in accordance with Board procedures that conform to Lipsman v. Sec’y of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004). 2. The Board reviewed Petitioner’s allegations of error and injustice on 2 July 2020 and, pursuant to its regulations, determined that the corrective action indicated below should be taken on the available evidence of record. Documentary material considered by the Board consisted of the enclosures, naval records, and applicable statutes, regulations and policies. In addition, the Board considered Petitioner’s supplemental evidence submitted on 23 May 2019. See enclosure (3) 3. The Board, having reviewed all the facts of record pertaining to Petitioner’s allegations of error and injustice, finds as follows: a. Before applying to this Board, Petitioner exhausted all administrative remedies available under existing law and regulations within the Department of the Navy. b. Petitioner entered active duty with the Marine Corps in September 1996 and served on active duty until his placement on the Permanent Disability Retirement List on 29 November 2008. During his period of active duty, Petitioner was deployed to in support of combat operations from February 2004 until June 2004. On 18 March 2004, Petitioner asserts he was exposed to mental trauma related to indirect rocket/mortar fire from enemy forces. As a result, he experienced mental health symptoms and was diagnosed by the Department of Veterans Affairs (VA) with Post-Traumatic Stress Disorder (PTSD). Due to his PTSD diagnosis and symptoms, Petitioner was assigned a disability rating from the VA that formed the basis for his CRSC application to the CRSC Board in 2010. However, Petitioner was denied CRSC benefits in November 2010 and, upon requesting reconsideration, denied a second time in January 2011. c. Petitioner applied for CRSC benefits to this Board in 2011 but was denied relief. Petitioner subsequently filed enclosure (1) that was similarly denied. However, prior to considering Petitioner’s application, the Board did not obtain an advisory opinion from Director of Compensation, Office of the Deputy Under Secretary of Defense (Military Personnel Policy) as required by Department of Defense Directive (DODD) 1332.41. Consequently, Petitioner filed suit and enclosure (2) was issued. d. Director of Compensation, Office of the Deputy Under Secretary of Defense (Military Personnel Policy) issued an advisory opinion on 7 April 2020 as required by DODD 1332.41. See enclosure (4). The opinion determined that insufficient evidence exists to find Petitioner qualified for CRSC since his PTSD was “incidental to his deployment in a combat zone and not as a result of it.” The opinion goes on to state that Petitioner failed to meet the burden of proof for qualifying for CRSC. e. In response to the unfavorable advisory opinion, Petitioner submitted enclosure (5). He raises a number of arguments why the advisory opinion was deficient including the assertion an improper burden of proof was applied and thefailure to address Petitioner’s instrumentality of war claim. CONCLUSION Upon review and consideration of all the evidence of record, the Board finds the existence of an error warranting the following corrective action. Petitioner made two claims for CRSC based on his argument that he qualifies under the armed conflict and instrumentality of war provisions of reference (b). The Board first considered Petitioner’s argument that his PTSD condition qualifies for CRSC under subsection (e)(2)(D) of reference (b), i.e. Instrumentality of War. The Board noted Petitioner met the eligibility criteria contained in subsection (c) of reference (b). Reference (b) directs the Secretary of Defense (SECDEF) to “prescribe procedures and criteria” under which a military retiree may apply for CRSC. In response, SECDEF issued enclosure (6) that contains Attachment 1-1 and a discussion of “Determinations of Combat-Relatedness” for the purposes of awarding CRSC. Attachment 1-1 states the “following criteria, terms, definitions, explanations will apply to making combat-related determinations in the CRSC program” and contains a discussion under a paragraph titled “Instrumentalityof War.” Under that discussion, two requirements are imposed for awarding CRSC under the instrumentality of war provision: (1) There must be a direct causal relationship between the instrumentality of war and the disability; and (2) The disability must be incurred incident to a hazard or risk of the service. The attachment goes on to define an instrumentality of war as 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 further explains 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 material.” In applying this SECDEF guidance to the facts of Petitioner’s case, the Board concluded he qualifies for CRSC under the instrumentality of war provision of reference (b). Specifically, the Board concluded that a mortar/rocket shell is an instrumentality of war since it is a device exclusively designed for military service and intended for use in such service. The Board found no other reasonable use for a combat mortar/rocket shell other than for a military purpose. Additionally, the Board determined that a direct causal relationship exists between the mortar/rocket shell that caused Petitioner’s mental trauma and his PTSD condition. Based on a preponderance of the evidence, the Board concluded that the mortar/rocket shell that landed in the proximity of Petitioner was directly responsible for the fear experienced by Petitioner and the death he witnessed. This trauma formed the basis for his PTSD diagnosis. Consequently, the Board found that the requirement of a direct causal relationship between the instrumentality of war and Petitioner’s PTSD was met. Further, theBoard concluded the second requirement that Petitioner’s PTSD was incurred incident to a hazard or risk of service was also met based on the fact his disability was incurred while deployed to Iraq in support of combat operations. Finally, the Board applied the guidance contained in the third paragraph of the instrumentality of war discussion. That paragraph states that CRSC may be awarded under the instrumentality of war provision if the disability was incurred in any period of service as a result of “wounds caused by a military weapon.” Based on medical evidence that Petitioner’s PTSD was caused, in part, by his exposure to a military weapon, i.e. mortar/rocket fire, the Board concluded that he qualifies for CRSC under the instrumentality of war provision of reference (b) for his PTSD condition. In the Board’s opinion, since PTSD is considered a mental health disability caused by trauma within a service member’s mind, it qualifies as an “invisible wound” under this paragraph of the SECDEF guidance. After determining Petitioner qualified for CRSC under the instrumentality of war provision, the Board concluded the issue of whether he qualified under the armed conflict provision of reference (b) was moot and did not require further Board consideration. RECOMMENDATION That Petitioner’s naval record be corrected, where appropriate, to show that he qualifies for CRSC for his PTSD condition under instrumentality of war. President, CRSC Board is directed to change Petitioner’s eligibility for CRSC consistent with this decision. 4. Pursuant to Section 6(c) of the revised Procedures of the Board for Correction of Naval Records (32 Code of Federal Regulations, Section 723.6(c)) it is certified that quorum was present at the Board’s review and deliberations, and that the foregoing is a true and complete record of theBoard’s proceedings in the above entitled matter. 5. The foregoing action of the Board is submitted for your review and action.