RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           14 December 2005
      DOCKET NUMBER:   AR20050002175


      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. John N. Slone                 |     |Chairperson          |
|     |Mr. Leonard G. Hassel             |     |Member               |
|     |Mr. Michael J. Flynni             |     |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 “all 40% of my VA Disability be allowed for
concurrent receipt of Army Retirement pay and VA awarded pay.”  This has
been accepted as a request for his Department of Veterans Affairs (VA)
rated disabilities to be approved for Combat-Related Special Compensation
(CRSC).

2.  The applicant states that all of his disabilities are either the result
of combat or from performance of duty under conditions simulating war.  He
states that his back injury was due to a land mine accident in 1968 for
which he was awarded the Purple Heart.  Therefore, he should be given CRSC
for this condition retroactively to July 2003.  He should receive CRSC for
his other two disabilities retroactive to January 2004.

3.  The applicant provides:

      a.  the denial of his request to reconsider his CRSC application;

      b.  a letter from a physician who has treated the applicant from May
1999.  He states that as likely as not, if the applicant’s mood and stress
reaction to his service did not cause him duodenal ulcer, they may have
made it worse;

      c.  a statement from an individual who says that in the late spring
or early summer of 1975 in Panama, the applicant, whose room was across
from his room, asked him for assistance to elevate his leg.  The applicant
told him at that time that he had broken his right ankle while on a night
combat equipment parachute jump;

      d.  his separation document; and

      e.  a VA rating decision.

CONSIDERATION OF EVIDENCE:

1.  The applicant was inducted and entered on active duty on 13 October
1964.  He was honorably released from active duty on 12 October 1966.  He
enlisted in the Regular Army on 28 August 1967.  He was assigned as a
Special Forces medical specialist in Thailand (2 tours), Vietnam, Okinawa,
and Panama (two tours) and was promoted to pay grade E-8.

2.  The applicant’s DA Form 2-1, Personnel Qualification Statement, Item 4,
Assignment Considerations, has “Shrapnel right arm & right
shoulder/680925.”  This form, and the applicant’s separation document, show
that he was awarded the Purple Heart.

3.  He was honorably released from active duty on 31 October 1984 and
placed on the Retired List the following day for years of service.

4.  CRSC became effective 31 May 2003, with first benefits payable 1 July
for the June entitlement.  Initially, benefits were payable to members with
a combined combat related disability rating of 60% or more, or with a
combined rating of 10% or more for combat-related injuries for which they
were awarded a Purple Heart.  Eligibility was expanded on 1 January 2004 to
compensate qualified retirees at any combined percentage rating for combat-
related disabilities compensated by the VA.  Eligibility criteria was also
relaxed with respect to the 20 year requirement to include any member
otherwise qualified who is receiving Reserve retired pay (paid at age 60
based on points for Reserve participation with 20 “good” years).

5.  CRSC provides for the payment of the amount of money a military retiree
would receive from the VA for combat related disabilities if it wasn’t for
the statutory prohibition for a military retiree to receive a VA disability
pension.  Payment is made by the Military Department, not the VA, and is
tax free.  Eligible members are those retirees 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.  Military retirees who are approved for CRSC must have
waived a portion of their military retired pay since CRSC consists of the
Military Department returning a portion of the waived retired pay to the
military retiree.

6.  On 7 July 2004, the U.S. Army Physical Disability Agency (USAPDA)
Combat Related Special Compensation (CRSC) Branch denied the applicant’s
request for CRSC for residuals of foot injury and duodenal ulcer.  However,
the USAPDA CRSC Branch approved the applicant’s 20% disability for his back
condition for CRSC.  When the applicant submitted his request to the USAPDA
CRSC Branch he submitted a statement.  In that statement he said that all
of his records were destroyed in a house fire in 1992.  He explains that he
suffered crushed vertebra from a mine explosion in 1968, and the doctor
treating him told him that the injury would result in his termination of
parachute duties and, therefore, would disqualify him for Special Forces
duty.  He reinjured his back in 1971 but convinced “them” to let him stay
on parachute status.

7.  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.  The CRSC criteria is specifically for those military retirees who have
combat related disabilities.  Incurring disabilities while in a theater of
operations or in training exercises 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.

2.  The applicant has stated to the USAPDA CRSC Branch that he does not
have any records of his injuries because he lost his records in a house
fire.  However, while the applicant may have had copies of pertinent
documents from his military medical records, the original records should be
maintained at the VA medical center providing his medical treatment.

3.  The individual providing the statement concerning the applicant’s
broken ankle does not say that he witnessed the applicant’s injury.  He is
reporting what the applicant told him after the fact.  It would be
reasonable to presume that a Soldier who broke his ankle on a parachute
jump would have been provided emergency medical care at the drop zone and
transported to a hospital for more comprehensive medical treatment.  The
records of that medical care should be contained in the applicant’s VA
medical records.  As such, without corroborating evidence, this statement
is insufficient to warrant approving the applicant’s residuals of foot
injury for CRSC.

4.  As for the applicant’s duodenal ulcer, the physician stated that he
started treating the applicant 15 years after his retirement, and only
states that there is a possibility that his condition is related to his
combat service.  As such, this statement is insufficient, in and of itself,
to warrant approving the applicant’s duodenal ulcer for CRSC.

5.  The applicant has requested the effective date of his CRSC be changed
to June 2003 based on his statement that he was awarded the Purple Heart in
1968 for his back injury.  The basis for his contention is the fact that
the original law which provided for CRSC allowed for CRSC to be paid for
any percentage of disability if the Soldier had been awarded the Purple
Heart for the wound which caused the disability.  While the applicant’s
records show that he was, in fact, awarded the Purple Heart, the only
wounds recorded in his records are shrapnel wounds to his right arm and
right shoulder on 25 September 1968.  Since there is no evidence or
indication that the applicant’s Purple Heart wound resulted in a back
injury, there is no basis for changing the effective date of his CRSC for
his back injury.

6.  Without evidence to establish a direct, causal relationship to the
applicant’s VA rated disabilities to war or the simulation of war, there is
insufficient basis in which to grant his request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___mjf __  ___lgh __  ___jns___  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.





            ______John N. Slone________
                    CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20050002175                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051214                                |
|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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