RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           6 December 2005
      DOCKET NUMBER:   AR20050006389


      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. Bernard P. Ingold             |     |Chairperson          |
|     |Mr. Donald W. Steenfott           |     |Member               |
|     |Mr. Edward E. Montgomery          |     |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 nine Department of Veterans Affairs
(VA) rated disabilities for degenerative arthritis be approved for Combat-
Related Special Compensation (CRSC).

2.  The applicant states that he injured himself during combat in the Gulf
War, and that injury caused degenerative arthritis.  He adds that his
herniated disk in his neck and back did not exist when he left for the Gulf
War, but did exist when he returned from the war, which proves that he
herniated his disk while deployed.

3.  The applicant provides the partial denial of his request to reconsider
his CRSC application, a VA Post-Traumatic Stress Disorder (PTSD)
examination, and military medical records.  These records do not record any
injury or wound.  On a medical record dated 12 January 1993, it was stated
that the applicant had a 10-year history of bilateral shoulder, knee and
lumbar spine pain which had become progressively worse.  The physician
stated that the applicant had intermittent physical profile limitations,
and named the pain medications the applicant had been prescribed,
throughout those 10 years.

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 returning a portion of the waived
retired pay to the military retiree.

2.  On 3 March 2005, the U.S. Army Physical Disability Agency (USAPDA)
Combat Related Special Compensation (CRSC) Branch denied the applicant’s
request for CRSC for his nine Department of Veterans Affairs (VA) rated
disabilities for degenerative arthritis.  However, the USAPDA CRSC Branch
approved the applicant’s 10 percent VA disability rating for tinnitus for
CRSC.

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 stated that he was injured in the Gulf War, and that
injury led to his arthritis.  However, there is no evidence of any such
injury.  The applicant adds that he didn’t have a herniated disc before he
deployed to the Gulf War, but did when he returned.  However, the January
1993 medical record shows the applicant had a 10-year treatment history for
his bilateral shoulder, knee and lumbar spine pain.

3.  Even if the applicant had submitted documentation showing that he was
injured in the Gulf War, he would still have to show that the injury was
combat related and that it caused his nine VA rated disabilities for
degenerative arthritis.  As stated above, the fact that a disability was
incurred in a theater of operations is insufficient, in and of itself, to
warrant approval of CRSC.

4.  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.

5.  The VA Post-Traumatic Stress Disorder (PTSD) examination submitted by
the applicant shows that he has been examined for PTSD.  It does not show
that he has been rated for CRSC.  Without a rating by the VA, the applicant
cannot be considered for CRSC for that condition.  If the VA rates the
applicant for PTSD and he waives a portion of his retired pay to collect
the VA disability pension for that condition, he may submit a CRSC request
for PTSD to the USAPDA CRSC Branch.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___bpi__  ____eem_  ___dws__  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.





            _________Bernard P. Ingold__________
                    CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20050006389                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051206                                |
|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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