RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           1 December 2005
      DOCKET NUMBER:   AR20050003622


      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 T. Meixell               |     |Chairperson          |
|     |Ms. Maribeth B. Love              |     |Member               |
|     |Mr. Richard G. Sayre              |     |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 all of his Department of
Veterans Affairs (VA) rated disabilities be approved for Combat-Related
Special Compensation (CRSC), and that the U.S. Army Physical Disability
Agency (USAPDA) Combat Related Special Compensation (CRSC) Branch be
investigated.  He also requests that he be awarded the Purple Heart.

2.  The applicant states that while he was in Vietnam, he was twice wounded
by BB sized pellets from claymore mines and a shelling at a bridge site.
His little finger’s bone was also shot out of its socket.  He was treated
locally for those wounds and was put in for the Purple Heart twice.  He
believes that he wasn’t awarded the two Purple Hearts because his commander
had a grudge against him.

3.  After his return from Vietnam, he started having bowel and stomach
problems and ended up being hospitalized for peritonitis.  A breech in his
rectal colon was discovered 19 inches from his anus, which was surgically
repaired.

4.  The applicant argues that the only thing that could cause the
perforation of his rectal colon would be the steel pellets that wounded
him.

5.  The applicant also details errors committed by the USAPDA CRSC Branch
in the processing of his initial request.

6.  The applicant provides the denial of his request to reconsider his CRSC
application and a VA rating decision which shows that he was rated zero
percent disabled by the VA for post operative rectal perforation,
colostomy.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error that
occurred in March 1975.  The application submitted in this case is dated 23
March 2005.

2.  Combat-Related Special Compensation (CRSC), as established by Section
1413a, Title 10, United States Code, as amended, provides for the payment
of the amount of money a military retiree would receive from the VA for
combat related disabilities if it wasn’t for the statutory prohibition for
a military retiree to receive a VA disability pension.  Payment is made by
the Military Department, not the VA, and is tax free.  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.  Military retirees who are approved
for CRSC must have waived a portion of their military retired pay since
CRSC consists of the Military Department returning a portion of the waived
retired pay to the military retiree.

3.  On 18 February 2005, the USAPDA CRSC Branch denied the applicant’s
request for CRSC for degenerative arthritis, traumatic arthritis, and
superficial hearing (listed as superficial scars on the USAPDA CRSC
Branch’s initial denial of the applicant’s claim).

4.  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.

5.  The applicant has not provided any orders or certificates that show he
was awarded the Purple Heart.  The applicant’s name is not listed on the
Vietnam Casualty Roster.  The applicant has not submitted any medical
records which would show that he was wounded, or treated for wounds, as a
result of hostile action.

6.  Army Regulation 600-8-22 provides, in pertinent part, that the Purple
Heart is awarded for a wound sustained as a result of hostile action.
Substantiating evidence must be provided to verify that the wound was the
result of hostile action, the wound must have required treatment, and the
medical treatment must have been made a matter of official record.  This
regulation also provides that there is no statute of limitations on
requests for award of the Purple Heart.

7.  U.S. Army Vietnam (USARV) Regulation 672-1 (Decorations and Awards)
provided, in pertinent part, for award of the Purple Heart.  The regulation
stated that authority to award the Purple Heart was delegated to hospital
commanders.  Further, it directed that all personnel treated and released
within 24 hours would be awarded the Purple Heart by the organization to
which the individual is assigned. Personnel requiring hospitalization in
excess of 24 hours or evacuation from Vietnam will be awarded the Purple
Heart directly by the hospital commander rendering treatment.

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.  A wound incurred from a claymore mine would certainly be considered
combat related for CRSC purposes.  However, the applicant has not submitted
any evidence to show that he was wounded.  The Board does not accept the
fact that the applicant had perforations of his rectal colon surgically
repaired as sufficient evidence to approve his request.

3.  Without evidence to establish a direct, causal relationship to the
applicant’s VA rated disabilities to war or the simulation of war, there is
insufficient basis in which to grant his request.

4.  In addition, the applicant has focused his appeal for CRSC on his VA
rating for post operative rectal perforation, colostomy.  The records
submitted by the applicant show that he is rated zero percent disabled for
this condition.  Zero percent is not a compensable rating.  Therefore, if
the Board were to approve this condition for CRSC, the applicant would not
receive any monetary benefit.

5.  As for the applicant’s request for award of the Purple Heart, there is
insufficient evidence to show that he was wounded as a result of hostile
action.

6.  The applicant’s request to investigate the USAPDA CRSC Branch is noted.
 However, the Board is not empowered to order investigations on units or
agencies within the Army.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration in March 1975.  Therefore, the time for
the applicant to file a request for correction of any error or injustice
expired in March 1978.  Although the applicant did not file within the
ABCMR's statute of limitations, it is appropriate to waive failure to
timely file in this case based on the fact there is no statute of
limitations on requests for award of the Purple Heart.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___jtm___  ____rgs_  ___mbl___  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 T. Meixell____________
                    CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20050003622                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051201                                |
|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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