RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           26 July 2005
      DOCKET NUMBER:   AR20050001750


      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. Linda D. Simmons              |     |Chairperson          |
|     |Mr. Patrick H. McGann Jr.         |     |Member               |
|     |Mr. Leonard G. Hassell            |     |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.  In effect, the applicant requests that his Department of Veterans
Affairs (VA) rated disabilities be approved for Combat-Related Special
Compensation (CRSC).

2.  The applicant states that while he was on a combat operation in South
Vietnam, a mortar round landed 8 to 10 feet to his left.  The explosion
threw him 30 feet and resulted in the complete loss of his hearing and
paralysis of his left side.  He was taken to the 3rd Field Hospital in
Saigon for treatment and was subsequently medically evacuated to Walter
Reed Army Medical Center (AMC).  His hearing returned to a limited degree
and the paralysis resolved over time.  However, he believes that all of his
medical problems stem from that incident.

3.  The applicant provides the denial of his request for reconsideration of
the denial of his CRSC application.

CONSIDERATION OF EVIDENCE:

1.  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.

2.  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.

3.  On 16 December 2004, the U.S. Army Physical Disability Agency (USAPDA)
Combat Related Special Compensation (CRSC) Branch determined that the
applicant’s prostate cancer was combat related and awarded him 20 percent
CRSC compensation.  However, the USAPDA CRSC Branch denied the applicant’s
request for CRSC for impaired hearing, limited motion in lumbar spine
(three disability codes), and impairment of femur.

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.  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 states that he was treated for injuries when a
mortar round landed in his proximity, he has not submitted any evidence of
his medical treatment for that incident or any evidence that any of his VA
rated disabilities were incurred as a result of a combat related injury.

4.  It would be reasonable to presume that if the applicant was treated for
his injuries in a field hospital and continued his medical treatment at an
AMC, records exist for that treatment.  Those records should be contained
in the applicant’s VA medical records.  However, even if the applicant had
submitted evidence of his hospitalization, that documentation would still
have to show that his impaired hearing, limited motion in lumbar spine
(three disability codes), and impairment of femur were caused by a mortar
explosion for those conditions to be approved for CRSC.


5.  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

___lds___  ___lgh __  ___phm__  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.





            _________Linda D. Simmons_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050001750                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050726                                |
|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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