RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           11 August 2005
      DOCKET NUMBER:   AR20050002586


      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          |
|     |Ms. Deborah Jacobs                |     |Member               |
|     |Mr. Michael J. Flynn              |     |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 right knee injury, bilateral planter fasciitis
injury, gastro esophageal reflux with hiatal hernia, neck injury, and right
ankle and right foot injury, be approved for Combat Related Special
Compensation (CRSC).

2.  The applicant states that while on a Field Training Exercise (FTX) he
banged his right knee on the towing pintle of a self propelled howitzer.

3.  From June to August 1977, he was in basic combat training.  During that
training his unit conducted several tactical force marches.  He was
required to carry a 45 pound backpack during those marches.  His arches
fell in both feet as a result of those marches.

4.  On 24 May 1979, during an FTX and an Army Readiness Training Evaluation
Program (ARTEP), the applicant’s stomach became upset which was later
diagnosed as gastro esophageal reflux with hiatal hernia.  At that time he
was manually uploading and downloading 155mm howitzer projectiles which
weighed 98 or 117 pounds, depending on projectile selected.

5.  While on a mission to test and field the new Paladin Howitzer Weapons
System, he was a passenger on a HMMWV which hit big rocks in a mud hole.
This caused him to jam his head against the roof of the HUMMWV, which
knocked him unconscious.  When he came to, he had severe pain in his neck.

6.  While on a live night fire of a self propelled howitzer system, two 98
pound projectiles were knocked over and landed on his right foot and toes.

7.  The applicant contends that all of his disabilities were incurred
performing duties under conditions simulating war.

8.  The applicant provides the denial of his CRSC application and the
denial of his request for reconsideration of that denial.  In his request
for reconsideration he submits military medical records showing his
treatment for the conditions in question.  The only medical records which
indicate the cause of the injury being treated is:




      a.  a record dated 4 November 1981 which states in pertinent part “SM
fell and hit knee on APC” (interpreted as Service Member fell and hit knee
on Armored Personnel Carrier);

      b.  a record dated 16 December 1977 which shows the applicant was
treated for ulcers on the bottom of his foot which caused him pain during
prolonged marching and standing; and

      c.  a record dated 15 October 1982 which shows the applicant
sustained an “injury to 2nd and 3rd toes of right foot.  Dropped
[unreadable] on them in field.”

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.  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 during 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 excerpts of the applicant’s medical records show that he was
treated for the conditions in question.  However, that only establishes
service connection for those conditions, not combat relationship.

4.  The medical records which show the causes for his disabilities only
verify that the applicant hit his knee on an Armored Personnel Carrier, had
ulcers on the bottom of his foot, and dropped something on his toes while
he was in the field.  There is no evidence that these injuries were, or
disease was, incurred while performing duties simulating combat conditions.

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

___mjf___  ___dj___  ____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                 |AR20050002586                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050811                                |
|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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