RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 1 November 2005
DOCKET NUMBER: AR20050003955
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. James E. Anderholm | |Chairperson |
| |Mr. Thomas E. O'Shaughnessy Jr. | |Member |
| |Ms. Carol A. Kornhoff | |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 impaired hearing (100 percent) and tinnitus (10
percent) be approved for Combat-Related Special Compensation (CRSC).
2. The applicant states that he worked in artillery both in an enlisted
status and as an officer. The continuous acoustic trauma of the heavy guns
firing caused both his impaired hearing and his tinnitus.
3. The applicant provides the denial of his request to reconsider his CRSC
application, excerpts from his military records, and VA rating decisions.
CONSIDERATION OF EVIDENCE:
1. 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 returned a portion of the waived
retired pay to the military retiree.
2. On 29 December 2004, the U.S. Army Physical Disability Agency (USAPDA)
Combat Related Special Compensation (CRSC) Branch denied the applicant’s
request for reconsideration of its partial denial of his request for CRSC.
However, the USAPDA CRSC Branch had awarded the applicant a combined CRSC
rating of 90 percent for seven VA rated disabilities in its first
consideration of his case.
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. 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 applicant has not stated that a particular injury caused his
impaired hearing and tinnitus. He claims that the cumulative affect of a
career which required him to be in the close proximity of artillery fire
caused these disabilities.
3. Unfortunately, the applicant’s contention is speculative at best.
Hearing loss and tinnitus can be caused by many different things.
4. Without evidence to establish a direct, causal relationship to the
applicant’s hearing loss and tinnitus to war or the simulation of war,
there is insufficient basis in which to grant his request.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___jea___ ____teo_ ___cak___ 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.
__________James E. Anderholm_________
CHAIRPERSON
INDEX
|CASE ID |AR20050003955 |
|SUFFIX | |
|RECON |YYYYMMDD |
|DATE BOARDED |20051101 |
|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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