RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           18 October 2005
      DOCKET NUMBER:   AR20050003504


      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 that his Department of Veterans Affairs (VA)
rated disability for his right shoulder condition be approved for Combat-
Related Special Compensation (CRSC).

2.  The applicant states that he initially injured his shoulder in an
automobile accident in 1963.  However, the injury was not significant and
he was returned to duties as an airborne infantryman.  The physical demands
of carrying heavy equipment and the trauma of landing on his shoulder on
numerous parachute jumps caused additional injury to his shoulder.  Because
of that deterioration of his shoulder, he was terminated from parachute
duties in 1985.

3.  The applicant provides:

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

      b.  a progress note from an orthopaedic and sports medicine center
dated 28 February 2005 which stated that the applicant was “having some
increasing pain in the shoulder over the past few months.  This shoulder
was traumatically arthritic on a surgery that was done about five years ago
by one of the other doctors.  It was determined that the shoulder ended up
with traumatic arthritis on the basis of the parachute jumping that this
gentleman was doing in the service.  In fact, he also had an injury in the
service which fractured the acromion.  All of this led to the subsequent
severe arthritis in his shoulder and the limitation of motion that he has
and the pain that he has”;

      c.  a VA rating decision dated 15 March 1996 in which it was stated
the applicant “sustained injuries in a vehicle accident on July 21, 1963 as
a passenger, including a nondisplaced fracture through the right acromion
process.  The veteran was placed in a spica cast for several weeks and
continued with his military duties.  The condition was apparently not
significantly disabling by lack of evidence of regular complaint or
treatment for the condition, however, the injury was specifically noted on
the retirement examination.  VA examination confirms deformity from old
injury, joint space narrowing and ossifications.”

      d.  medical records pertaining to his shoulder dated from 24 November
1998 to 15 October 2003.  None of these records mention the applicant
aggravating his 1963 injury;

      e.  his separation document; and

      f.  his Personnel Qualification Record which shows he served a total
of 20 months in Vietnam and was permanently disqualified for airborne duty
as a result of his deliberate termination of airborne status.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant’s right shoulder condition be
approved for CRSC.

2.  Counsel reiterates the applicant’s contentions and states that the
applicant’s change in physical ability should be considered to be severely
disabling and due to aggravation incurred during Airborne operations.
Counsel concludes that the applicant’s right shoulder condition meets the
criteria that defines engagement in hazardous service and the performance
of duty under conditions simulating war.

3.  Counsel does not provide any additional documents.

CONSIDERATION OF EVIDENCE:

1.  The applicant was honorably discharged at the expiration of his term of
service on 23 November 1973 in pay grade E-7.  At that time he had been
awarded the Master Parachutist Badge and the Combat Infantryman Badge.  He
had served a total of 13 years, 1 month and 23 days of active duty when he
was discharged.

2.  He reenlisted on 10 December 1982 and was honorably released from
active duty on 28 February 1989 in pay grade E-6.  He was placed on the
Retired List the following day for years of service.

3.  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.

4.  On 13 January 2005, the U.S. Army Physical Disability Agency (USAPDA)
Combat Related Special Compensation (CRSC) Branch determined that the
applicant’s Post-Traumatic Stress Disorder (PTSD) was combat related and
awarded him 50 percent CRSC.  The USAPDA CRSC Branch determined that the
applicant’s upper arm condition was not combat related and denied his
request for CRSC for that 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.  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 evidence of record shows, and the applicant admits, that he injured
his shoulder in an automobile accident in 1963.  The first and only mention
that the automobile accident was aggravated by parachute jumping was on 28
February 2005, a date which was after the date the law was passed
establishing CRSC.  Of particular note is the applicant’s 15 March 1996 VA
rating which opined that the applicant’s shoulder injury was “not
significantly disabling by lack of evidence of regular complaint or
treatment for the condition.”  This indicates that the applicant did not
seek treatment for his shoulder while he was on active duty.

3.  The applicant did not submit any evidence to support his contention
that he terminated Airborne status because of his shoulder.  The
applicant’s Personnel Qualification Record shows the applicant was
permanently disqualified for airborne duty as a result of his deliberate
termination of airborne status.

4.  The progress note from an orthopaedic and sports medicine center dated
28 February 2005 has been carefully considered.  While this progress note
states that the applicant’s traumatic arthritis was caused by his military
parachute jumping, it does not cite what led the physician to that
conclusion.  It is noted that the physician also stated that the applicant
also had an injury in the service which fractured the acromion, and that
all of this led to the subsequent severe arthritis in the applicant’s
shoulder and the limitation of motion that he has and the pain that he has.
 As such, this statement is insufficient in and of itself to base approval
of the applicant’s request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___jns___  ___kwl__  ____lds__  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                 |AR20050003504                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051018                                |
|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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