RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2012-02608

	 	COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

She be able to sign the DD Form 2860, Application For Combat – Related Special Compensation (CRSC), on behalf of her deceased husband. 

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APPLICANT CONTENDS THAT:

It was her late husband’s intent to file for CRSC and she believes his service-connected medical conditions should be assessed at this time as combat related in order to qualify for compensation.  

The applicant’s complete submission, with attachment, is at Exhibit A.

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STATEMENT OF FACTS:

On 31 May 1975, the deceased former member was relieved from active duty and retired, effective 1 April 1975.

On 27 April 2009, according to information provided by the applicant, the Department of Veterans Affairs (DVA) advised the deceased former member of their decision to grant him a combined compensable disability rating of 30 percent for his Agent Orange and feet dyshydrosis, both associated with diabetes, effective 7 April 2009.

On 13 May 2009, according to information provided by the applicant, the deceased former member passed away from atherosclerotic cardiovascular disease, complications associated with diabetes mellitus type II.

The remaining relevant facts pertaining to this application are described in the letters prepared by the Air Force office of responsibility and SAF/MRB Legal Advisor which are attached at Exhibits C and F.  

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AIR FORCE EVALUATION:

AFPC/DPSDC recommends denial noting CRSC does not have any provisions for survivor benefits.  In addition, the applicant’s request does not meet the mandatory criteria for compensation under the CRSC program as outlined under the provisions of Title 10 United States Code, Chapter 71, § 1413a.  

The CRSC program was established to provide compensation to certain retirees with combat-related disabilities that qualify under the criteria set forth in 10 U.S.C. § 1414a.  

The CRSC guidelines require the service member to meet the following basic eligibility requirements:  (a) received military retirement pay, (b) have disabilities rated at least ten percent by the DVA, and (c) submit a signed claim for CRSC.

Although there is objective documentary evidence that the decedent’s disabilities were incurred from exposure to Agent Orange, the CRSC claim was not signed prior to his demise.  

The applicant’s husband passed away on 13 May 2009 and the original claim for CRSC was signed in May 2012 by the applicant, on his behalf.  Since CRSC is not subject to any survivor benefit provisions under Chapter 73, Title 10, United States Code, the veteran must actually submit a claim for CRSC prior to his or her death in order for compensation to be awarded.  

A complete copy of the AFPC/DPSDC evaluation is at Exhibit C. 

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reiterates that her husband’s life ended shortly before his opportunity to submit a CRSC claim.  Therefore, she believes she should be afforded the opportunity to sign on his behalf for compensation of CRSC. 

A complete copy of the applicant’s response is at Exhibit E. 

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ADDITIONAL AIR FORCE EVALUATION:

The SAF/MRB Legal Advisor indicates that in accordance with Department of Defense Financial Management Regulation (DoDFMR) 7000.14-R, Volume 7b, chapter 63, section 630301, CRSC is an entitlement, not just a benefit.  As such, there may be a reason why the service member in this case did not apply for CRSC prior to his demise.  His 27 April 2009 retroactive DVA determination created his CRSC entitlement less than a month before his death on 13 May 2009.  Additionally, the requirement for a veteran to sign the DD Form 2860, Application for Combat – Related Special Compensation (CRSC), is not absolute.  It is easy to imagine circumstances where a person exercising power of attorney, for instance, might be able to make the election on behalf of a retiree who was mentally disabled because of a service-connected injury.  Should sufficient evidence in this case determine an injustice occurred, the Board could recommend relief be granted simply by correcting the record to show the service member applied for CRSC before he died.  Basically, the Board can change a record to reflect the way things should be, rather than how they actually are.  The key is finding whether there is sufficient evidence of an injustice.  On the other hand, the Board may find there is evidence in the file tending to discredit the applicant’s version of facts.  For example, the applicant claims the DVA determination was completed on 27 April 2009; however, if there had been an earlier DVA determination pertaining to the decedent’s CRSC eligible disabilities, that would serve to undermine the applicant’s argument that the close proximity of the DVA’s determination to her deceased husband’s death caused an injustice.

A complete copy of the SAF/MRB Legal Advisor evaluation is at Exhibit F. 

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APPLICANT'S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATION:

A copy of the SAF/MRB Legal Advisor evaluation was forwarded to the applicant on 20 May 2013 for review and response.  As of this date, no response has been received (Exhibit G).  

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THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was timely filed.

3.  Sufficient relevant evidence has been presented to demonstrate the existence of an injustice.  The applicant contends that she should be able to apply for Combat Related Special Compensation (CRSC) on behalf of her late husband.  While we note the comments of AFPC/DPSDC indicating a veteran must actually submit a claim for CRSC prior to his or her death in order for compensation to be awarded, we believe that corrective action is warranted.  While there is no evidence of an error on the part of the Air Force, we find it reasonable to conclude the demise of the deceased former member just two weeks after the Department of Veterans Affairs (DVA) issued a qualifying rating decision for the purposes of CRSC renders him the victim of an injustice.  Therefore, we believe it appropriate to recommend the applicant’s record be corrected as indicated below.

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THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to the DECEASED FORMER MEMBER be corrected to show that on 12 May 2009, he applied for, and competent authority received, his application for benefits under the Combat Related Special Compensation (CRSC) program.  

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The following members of the Board considered AFBCMR Docket Number BC-2012-02608 in Executive Session on 12 March 2013 and 24 October 2013, under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

All members voted to correct the records as recommended.  The following documentary evidence was considered:

	 Exhibit A.  DD Form 149, dated 12 June 2012, w/atchs.
	 Exhibit B.  Applicant's Master Personnel Records.
	 Exhibit C.  Letter, AFPC/DPSDC, dated 24 July 2012, w/atch.
	 Exhibit D.  Letter, SAF/MRBR, dated 6 August 2012.
	 Exhibit E.  Letter, Applicant, dated 28 August 2012.
	 Exhibit F.  Letter, SAF/MRB, dated 16 May 2013.
	 Exhibit G.  Letter, SAF/MRBC, dated 20 May 2013.





                                   
                                   Panel Chair