RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            23 June 2005
      DOCKET NUMBER:   AR20050000444


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Edmund P. Mercanti            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Robert L. Duecaster           |     |Chairperson          |
|     |Mr. Thomas A. Pagan               |     |Member               |
|     |Mr. Michael J. Flynn              |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his Department of Veterans Affairs (VA)
rated disabilities for hypertension (40 percent disabling) and restrictive
lung disorder (100 percent disabling) be approved for Combat-Related
Special Compensation (CRSC).

2.  The applicant states that:

      a.  his hypertension was caused by him breathing lead fumes which
were generated by weapons firing during training; and

      b.  his restrictive lung disorder was caused by CARC paint which was
used on military aircraft.  He states that CARC paint is a known cause of
restrictive lung disorder.

3.  The applicant provides his military separation documents, evaluation
reports, the denial of his CRSC application, documents showing that he was
awarded 100 percent disability for restrictive lung disorder, and medical
opinions which state that exposure to CARC paint can cause lung disorders.

CONSIDERATION OF EVIDENCE:

1.  He entered active duty in the Active Guard and Reserve program as a
warrant officer on 28 August 1985 with 12 years, 11 month and 8 days of
prior active duty, and 9 years, 5 months and 16 days of prior inactive duty
(Army Reserve).  He served as an aviation maintenance technician, military
personnel technician, administrative officer, and professional development
officer, and was promoted to Chief Warrant Officer 3.  He was honorably
released from active duty while assigned to Headquarters and Headquarters
Company, Army Reserve Personnel Center, on 30 September 1992.

2.  Combat-Related Special Compensation (CRSC), as established by Section
1413a, Title 10, United States Code, as amended, states that eligible
members are those retirees who have 20 years of service for retired pay
computation (or 20 years of service creditable for reserve retirement at
age 60) and who have disabilities that are the direct result of armed
conflict, specially hazardous military duty, training exercises that
simulate war, or caused by an instrumentality of war.  Such disabilities
must be compensated by the VA and rated at least 10% disabling.  For
periods before 1 January 2004 (the date this statute was amended), members
had to have disabilities for which they have been awarded the Purple Heart
and are rated at least 10% disabled or who are rated at least 60% disabled
as a direct result of armed conflict, specially hazardous duty, training
exercises that simulate war, or caused by an instrumentality of war.  CRSC
benefits are equal to the amount of VA disability compensation offset from
retired pay based on those disabilities determined to be combat-related.

3.  Concurrent Retirement and Disability Payment (CRDP), as established by
the Fiscal Year (FY) 2004 National Defense Authorization Act (NDAA),
provides a 10-year phase-out of the offset to military retired pay due to
receipt of VA disability compensation for members whose combined disability
rating is 50% or greater.

4.  On 7 December 2004, the U.S. Army Physical Disability Agency (USAPDA)
CRSC Branch, in a reconsideration, again determined that the applicant’s
hypertension, pulmonary emphysema (restrictive lung disorder), degenerative
arthritis, knee condition, and abscess of the brain were not combat related
and denied his request for CRSC.

5.  In the processing of similar cases, advisory opinions were obtained
from the Office of the Under Secretary of Defense (OUSD), Military
Personnel Policy.  The OUSD has maintained in these opinions that in order
for a condition to be considered combat related, there must be evidence of
the condition having a direct, causal relationship to war or the simulation
of war.

DISCUSSION AND CONCLUSIONS:

1.  CRSC was passed into law as the first stage of an ongoing legislative
initiative to eliminate the prohibition of military retirees from receiving
VA disability benefits.  Due to cost constraints, while all military
retirees will eventually receive concurrent receipt of VA disability
compensation, only those military retirees who have disabilities incurred
in combat, or in conditions simulating combat (which includes hazardous
duties), are eligible for CRSC.

2.  As stated above, the CRSC criteria is specifically for those military
retirees who have combat related disabilities.  Incurring disabilities
while in a theater of operations is not, in and of itself, sufficient to
grant a military retiree CRSC.  The military retiree must show that the
disability was incurred while engaged in combat, while performing duties
simulating combat conditions, or while performing specially hazardous
duties such as parachuting or scuba diving.

3.  While the applicant has submitted medical evidence that CARC paint can
cause lung disorders, he has not submitted any evidence that CARC paint is
the cause of his restrictive lung disorder.
4.  However, even if he did have evidence to show that exposure to CARC
paint caused his restrictive lung disorder, that would not establish
entitlement to CRSC.  Exposure to CARC dust while performing routine
maintenance would not be considered combat related.  A finding of combat
related requires evidence that the condition was incurred during combat or
during exercises simulating combat.

5.  The applicant has not submitted any evidence that his hypertension was
combat related.  While the applicant speculates that his hypertension was
caused by exposure to lead fumes, he has not provided any medical evidence
to show his hypertension was caused in this manner.

6.  The denial of the applicant’s request does not mean he will not be
compensated for his service related disabilities.  The denial means that he
will not be compensated for his disabilities in the first group of military
retirees being given this compensation.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__ MJF__  __TAP __  __RLD __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.





            __ Robert L. Duecaster___
                    CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050000444                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050623                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(NC, GRANT , DENY, GRANT PLUS)          |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |




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