RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           18 October 2005
      DOCKET NUMBER:   AR20050003005


      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. Linda D. Simmons              |     |Member               |
|     |Mr. Kenneth W. Lapin              |     |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 in two applications and two letters, in effect,
that all of his Department of Veterans Affairs (VA) rated disabilities be
approved for Combat-Related Special Compensation (CRSC).  He also requests,
in effect, that the US Army Physical Disability Agency (USAPDA) CRSC
Branch’s decisional document be corrected to show that he is not receiving
Individual Unemployment Compensation (IUC).

2.  The applicant states that he was on a field training exercise during
Reforger 79 in Germany when he hurt his back, which caused his spinal disc
condition.  He had a heart attack in October 1983 while providing support
to Operation Urgent Fury, the invasion into Grenada.  He adds that the
circulatory condition of his legs is due to 24 years of parachute jumping
in the Army.

3.  The applicant also states that he is rated far more than 100 percent
disabled by the VA, and does not receive IUC.

4.  The applicant provides an index of the documents he provides in support
of his request.

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 6 November 2004, the applicant appealed the partial denial of his
CRSC request.  In that appeal he stated that he believed that his spinal
disc condition and arteriosclerotic heart disease should be approved for
CRSC.  He explained that his spinal disc condition was incurred while
simulating war when he lifted a heavy foot locker when his unit was
changing locations.  He did not seek medical attention at the time of the
incident, thinking that it would improve on its own, which it did not.  As
for his heart attack, while on a support mission during Operation Urgent
Fury, he became very ill which was later diagnosed as the symptoms of a
minor heart attack.

4.  On 17 January 2005, on reconsideration, the USAPDA CRSC Branch approved
the applicant for CRSC for diabetes mellitus (10%).  The USAPDA CRSC Branch
denied the applicant’s request for arteriosclerotic heart disease (100%),
circulatory condition (two 60% ratings), spinal disc condition (40%),
paralysis of middle radicular nerves (40%), and tinnitus (10%).

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 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 provided any argument or evidence which would
establish a direct, causal relationship between his VA rated disabilities
and combat for CRSC purposes.   In reaching this conclusion the following
was considered:

      a.  Lifting a foot locker while moving locations would not be
considered combat related even if it occurred in a theater of operations
during a war, unless the move was forced because the unit was under attack;


      b.  A heart attack experienced while providing support to a combat
operation would not be considered combat related.  Other circumstances
would have had to exist to establish a direct, causal relationship between
the heart attack and combat; and

      c.  Injuries from parachute jumps are certainly considered combat
related.  However, medical records must establish that a military retiree
was injured in a parachute jump.  The contention that the cumulative wear
and tear on a paratroopers legs is the cause of a disability is
speculation, at best.

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.

5.  As for the applicant’s request that the USAPDA CRSC Branch’s decisional
document be corrected to show that he is not receiving IUC, that is an
administrative matter that does not require the authority of the Board.
The applicant should submit this portion of his request to the USAPDA CRSC
Branch.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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.





            ______________________
                    CHAIRPERSON


                                    INDEX

|CASE ID                 |AR                                      |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |YYYYMMDD                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(NC, GRANT , DENY, GRANT PLUS)          |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |








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