RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           19 October 2005
      DOCKET NUMBER:   AR20050003568


      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. Barbara J. Ellis              |     |Chairperson          |
|     |Mr. Hubert O. Fry Jr.             |     |Member               |
|     |Mr. Robert Rogers                 |     |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 major depressive disorder, traumatic arthritis,
spinal disc condition (two ratings), hypothyroidism and injury of bladder
be approved for Combat-Related Special Compensation (CRSC).

2.  The applicant states that all of his disabilities occurred in Saudi
Arabia.  He adds that he was subjected to four or five Scud Missile
attacks, one of which landed within 2 miles of his unit.  He then began
having trouble sleeping and he became depressed because he had the feeling
that his wife was going to divorce him while he was deployed.  On at least
three instances chemical alarms were sounded and he had to put on a
chemical suit.  He hurt his back when responding to those alarms.

3.  The applicant provides numerous documents in support of his request.
These documents include the denial of his request to reconsider his CRSC
application, his VA disability rating, medical records, and documents
pertaining to the use of chemical agents during Operation Desert Storm

4.  In a record of conversation between the applicant and officials
researching the possibility of a Persian Gulf War Illness, the applicant
stated that he was serving on active duty in the Active Guard and Reserve
Program in pay grade E-5 when his Army National Guard (ARNG) unit was
mobilized and deployed to Saudi Arabia.  While in Saudi Arabia he served as
a mail clerk, which was uneventful except for a Scud Missile impact that
demolished a warehouse one to two miles away.  He didn’t exhibit any
Persian Gulf War symptoms while in Saudi Arabia.  His problems started when
he returned home to his baggage in the front yard.  Simultaneously, his
unit started a reorganization which required training on new equipment.  He
developed low back pain when being trained with the new equipment and then
he started sliding into depression.

5.  The medical records provided by the applicant shows that during a
psychiatric evaluation he was diagnosed with major depressive disorder with
psychotic features, hypertension, and psychosocial stressors related to his
finances, his job, his employment situation and his relationships with his
peer support group.






CONSIDERATION OF EVIDENCE:

1.  On 31 October 1996, the applicant, a personnel administration
noncommissioned officer in pay grade E-5 serving on active duty in the AGR
program, was honorably released from active duty and placed on the Retired
List the following day for years of service.

2.  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.

3.  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.

4.  On 2 March 2005, the US Army Physical Disability Agency (USAPDA) CRSC
Branch denied the applicant’s request for CRSC.

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.  There is no record of the applicant exhibiting any symptoms of
depression or back pain while he was in Saudi Arabia.  To the contrary, the
applicant himself reported that he started experiencing depression after he
returned to the United States and discovered that his wife had left him and
his unit was reorganizing.  The applicant himself also reported having
injured his back while training with his unit’s new equipment after his
return to the United States.

4.  The applicant contends that chemical weapons caused all of his
disabilities.  However, he has not submitted any evidence which would
support that contention.  Merely establishing that chemical weapons were or
were not used in his proximity is insufficient to warrant approving his
disabilities for CRSC.  The applicant also must show that his disabilities
are the direct result of his exposure to chemical agents.

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

___hof __  ___rr____  ___bje___  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.





            _________Barbara J. Ellis_________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050003568                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051019                                |
|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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