RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            6 October 2005
      DOCKET NUMBER:   AR20050002049


      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. Curtis L. Greenway            |     |Chairperson          |
|     |Mr. Richard T. Dunbar             |     |Member               |
|     |Ms. Laverne V. Berry              |     |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 cervical arthritis be approved for Combat-Related
Special Compensation (CRSC).

2.  The applicant states that he incurred this disability during Operation
Desert Storm.

3.  The applicant provides the denial of his request to reconsider his CRSC
application, and excerpts from his military records and VA medical records.
 Those medical records show that he was treated for congenital fusion of
his C2 and C3 discs, congenital fusion of his C6 and C7 discs, severe
chronic degenerative disc disease at C5 interspace with likely bony
encroachment of neural foramina bilaterally judging from the posterior
lipping, and mild levoscoliosis of the cervical spine with moderate
flattening of the cervical spine probably related to the congenital
fusions.  He complained of numbness and tingling in his left arm and hand
which began shortly after beginning new duties in surgery at the VA Medical
Center.

CONSIDERATION OF EVIDENCE:

1.  The applicant, a sergeant first class operating room specialist
assigned to a US Army Reserve troop program unit, was ordered to active
duty on
21 November 1990, served in Southwest Asia from 7 January to 20 April 1991,
and was released from active duty on 14 May 1991.

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 2 December 2004, the US Army Physical Disability Agency (USAPDA)
CRSC Branch approved the applicant for CRSC for lower leg muscle injury,
but disapproved the applicant for CRSC for flat foot condition and spinal
disc condition.

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 or while on a training exercise 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.  The applicant has not submitted any documentation to show that his
spinal disc condition is combat related.  The documentation he submitted in
support of his request show that he has congenital (at birth) deformities
of his spine, and he started experiencing pain in his arm and hand while
performing his civilian duties with the VA hospital.


4.  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

____rtd__  ____lvb__  ____clg_  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.





            _________Curtis L. Greenway_______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050002049                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051006                                |
|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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