RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 4 August 2005
DOCKET NUMBER: AR20050001736
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. James E. Anderholm
Chairperson
Mr. Richard T. Dunbar
Member
Ms. LaVerne M. Douglas
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 disability for condition of the nervous system be approved for Combat-Related Special Compensation (CRSC).
2. In a second application, he requests that his three degenerative arthritis conditions, his spinal disc condition, and his condition of the skeletal system also be approved for CRSC.
3. The applicant states that his condition of the nervous system is in conjunction with his diabetes as a result of Agent Orange. As for the other disabilities, he contends that they were all incurred in line of duty under conditions simulating war. He worked in Air Defense Artillery, which is physically demanding.
3. The applicant provides the denial of his request for reconsideration of his CRSC application, his VA disability ratings, and excerpts from his military records.
CONSIDERATION OF EVIDENCE:
1. The applicant, an Air Defense Artillery Sergeant Major, was honorably released from active duty for years of service on 13 June 1998 and placed on the Retired List the following day.
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 22 December 2004, the U.S. Army Physical Disability Agency (USAPDA) CRSC Branch, denied the applicants request for reconsideration of its initial decision in his case. The USAPDA CRSC Branch had awarded the applicant 30 percent for kidney involvement in systemic disease, 20 percent for diabetes mellitus, 10 percent for paralysis of a nerve, 10 percent for Post-Traumatic Stress Disorder, and 10 percent for hypertension, for a combined CRSC rating of 60 percent. The USAPDA CRSC Branch disapproved the following conditions for CRSC compensation: degenerative arthritis (three disabilities), spinal disc condition, condition of the nervous system, foot condition, and condition of the skeletal system (two disabilities).
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 who are rated 50 percent or more disabled by the VA 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 documentation to show that he served in a combat occupational specialty, he has not submitted any documentation to show that his VA rated disabilities are combat related. As such, there is no basis in which to grant his request.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___jea __ ___rtd___ ____lmd_ 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.
____James E. Anderholm________ ___
CHAIRPERSON
INDEX
CASE ID
AR20050001736
SUFFIX
RECON
YYYYMMDD
DATE BOARDED
20050804
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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