RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 9 August 2005
DOCKET NUMBER: AR20050001190
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:
Ms. Barbara J. Ellis
Chairperson
Mr. Kenneth L. Wright
Member
Mr. Patrick H. McGann Jr.
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 claw foot, hypertension and ear condition be considered to have been incurred in combat for Combat-Related Special Compensation (CRSC) purposes .
2. The applicant states that he developed all of these conditions during his military service. The Department of Veterans Affairs (VA) has approved all of these conditions as service related and have classified them as being incurred in Vietnam).
3. The applicant provides his DD Form 214, his CRSC partial denial, excerpts from his VA medical records, and his VA rating decisions.
CONSIDERATION OF EVIDENCE:
1. He was commissioned and entered active duty on 23 January 1953 with 1 year and 20 days of prior active service. He was awarded the area of concentration of infantry unit commander (Special Forces) and was promoted to the rank of lieutenant colonel. He served two tours in Vietnam. He was honorably released from active duty on 29 February 1972 for years of service and placed on the retired list the following day.
2. 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. On 22 November 2004, the U.S. Army Physical Disability Agency (USAPDA) CRSC Branch approved the applicants absence of eye lens (rated as 30 percent disabling) and Post-Traumatic Stress Disorder (PTSD) (rated as 30 percent disabling) as combat related, for a total combat related disability of 50 percent. However, the USAPDA CRSC Branch determined that the applicants claw foot, hypertension and ear condition were not combat related and denied combat relationship for those conditions.
4. 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. While diabetes is a presumptive combat related condition for Vietnam veterans due to Agent Orange, to attribute other, separate disabilities to that presumptive combat relationship cannot be accepted without medical evidence of a direct casual relationship. As such, without specific evidence that the applicants diabetes was incurred while engaged in combat, while performing duties simulating combat conditions, or while performing specially hazardous duties such as parachuting or scuba diving, there is no basis for granting his request.
3. The applicant has not submitted any documentation which would show that his claw foot, hypertension and ear condition are combat related.
4. The denial of the applicants request does not mean he will not be compensated for his service related disabilities. The denial means that he will only be compensated for his one combat related disability effective 1 January 2004, and for his other disabilities under the CRDP in the future.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___klw __ ____phm_ __bje___ 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.
__________Barbara J. Ellis________
CHAIRPERSON
INDEX
CASE ID
AR20050001190
SUFFIX
RECON
YYYYMMDD
DATE BOARDED
20050809
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .
DISCHARGE REASON
BOARD DECISION
DENY
REVIEW AUTHORITY
ISSUES 1.
2.
3.
4.
5.
6.
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