RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           26 July 2005
      DOCKET NUMBER:   AR20050003492


      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 for invertebral disc syndrome, shoulder
prosthesis, knee condition, elbow (right and left), and degenerative
arthritis be approved for Combat-Related Special Compensation (CRSC).

2.  The applicant states that all of these disabilities were incurred
during tactical maneuver exercises and war games on combat maneuver systems
in preparation for war.  He was rated 80 percent disabled when he was
retired.

3.  The applicant explains the combat relationship of his disabilities as
follows:

      a.  During a live fire engagement an evaluator fell off the tank and
landed in front of the tank.  When he jumped off the tank to pull the
evaluator to safety, he landed on his left knee, fracturing his patella,
and tearing the meniscus, along with other damage;

      b.  While assigned to the National Training Center as a unit
commander, the continuous shock and trauma on his elbows and left shoulder
from operating on a non-stabilized armored vehicle damaged both of his
elbows and left shoulder, resulting in a limitation of motion and a left
shoulder replacement;

      c.  While assigned to Germany, during a tactical exercise he fell
from his armored vehicle on his back.  This resulted in posterior narrowing
of the fourth lumbar interspace and central rupture.

4.  The applicant provides a letter from a retired Medical Corps lieutenant
colonel.  In that statement the physician states that he treated the
applicant while he was on active duty.  The physician continues that:

      a.  When the applicant was assigned to Fort Irwin, the tanks did not
have the modern suspension systems the modern tanks have.  Since tank
commanders have a habit of placing their elbows on the hatch, the resultant
bouncing tended to cause ulnar neuropathy, a condition which the applicant
has been diagnosed as having;

      b.  He treated the applicant for back and knee injuries that were
caused when he fell from his tank during combat training;  and

      c.  The applicant injured his shoulders in 1994 when he was bounced
around in his tank.  His knee problem began when he jumped off his tank
during a field exercise.

5.  The applicant also submits selected excerpts from his military and
civilian medical records.  These records show that the applicant was
treated on active duty for the conditions he has requested to be approved
for CRSC.  However, the only document which shows any cause for the
disabilities is a treatment record dated 9 April 1992.  That document
states “Compression Fxs L-3-5 in sledding accident.  ‘Back would go out’
[every] 3 months since than to ’89.  Has progressively worsened past 3
years, reinjured 1990 when wrestling.”

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 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 submitted medical records which verify that he was
treated for the medical conditions in question while he was on active duty.
 The VA has, therefore, awarded the applicant disability ratings for these
conditions.

4.  The issue of combat relationship is a separate issue from service
relationship.  In this regard the physician’s statement has to be carefully
considered.  The physician stated that tankers are known to develop ulnar
neuropathy.  The physician stated that the applicant injured his shoulder
from banging around in his tank, but does not indicate that a specific
incident (injury) caused that problem.  He said that the applicant fell off
a tank during combat training which caused back and knee injuries, but he
does not indicate that he had any first hand knowledge of the incident
which caused the disabilities.

5.  Contradicting the physician’s assessment on the applicant’s back and
knee disabilities is the medical treatment record which states that the
applicant initially injured his back in a sledding injury, and re-injured
his back while wrestling.

6.  The OUSD has maintained 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.  The physician’s
statement does not show such a direct, causal relationship, nor does the
select medical records provided to the Board.



7.  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                 |AR20050003492                           |
|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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