RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          10 January 2006
      DOCKET NUMBER:   AR20050009520


      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. Kenneth L. Wright             |     |Chairperson          |
|     |Mr. Dale E. DeBruler              |     |Member               |
|     |Mr.                               |     |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 all his Department of Veterans Affairs (VA)
rated disabilities for his knee condition and back strain be approved for
Combat-Related Special Compensation (CRSC).

2.  The applicant states that while he was deployed to Somalia from
December 1992 to March 1993, he was on convoy to the Port of Mogadishu.  At
that time, his convoy was assaulted by a band of insurgents who were
attempting to pilferage through the contents of the second vehicle in the
convoy.  When he exited his truck to confront the insurgents, he twisted
his left ankle and injured his left knee, which caused him to fall on his
back on a large rock.  He couldn’t be
x-rayed until the medical team set up their equipment.  However, he was
given light duty until he was returned to the United States.  When he
arrived in the United States, he was treated for his injuries.  He adds
that he was required to remain in full battle gear the entire time he was
deployed and slept in a standard issue cot.

3.  He continues that while in Haiti, he reinjured his right knee while
exiting a vehicle from the rear while delivering meals and water to
Soldiers.

4.  The applicant provides:

      a.  a statement from a retired command sergeant major (CSM) who
states that “I concur with [the applicant’s] account of the incidents and
later I had to reassign [the applicant’s] duties to light duties due to his
permanent Department of the Army P3 profile which limited his abilities to
perform his military duties”;

      b.  a statement from another CSM who states that the applicant’s
injuries were sustained while serving in Haiti.  He adds that the applicant
was his direct supervisor during the deployment.  He assumed the
applicant’s duties as first sergeant while the applicant was recovering
from the serious injury to his right knee;

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

      d.  VA rating decisions;

      e.  deployment orders; and

      f.  military medical records.  Of these medical records, only one
dated 25 January 1995 mentions the cause of the medical problems.  On this
medical record it was stated “Running road twisted knee where stepped edge
of road.”  It also stated “Chronic [low back pain increased after]
deployment to Haiti.  Sleeping on cot – etc.”

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 6 May 2004, the U.S. Army Physical Disability Agency (USAPDA) Combat
Related Special Compensation (CRSC) Branch denied the applicant’s request
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’s account of the event which he contends caused his knee
and back injury does not establish combat relationship.  He states that
insurgents were trying to pilfer the trailing truck.  Unless there was
evidence that the insurgents were classified as enemy troops, his injuries
would not be considered combat related.  As stated above, the fact that an
injury is incurred in a theater of operation is not sufficient, in and of
itself, to approve the resulting disability for CRSC.

3.  The applicant has not submitted any documentation to show how he was
injured.  Neither CSM who submitted a statement in the applicant’s behalf
indicated that they were present when the incident occurred.

4.  It would be reasonable to presume that medical records and a personnel
status report would have been generated which would have recorded the
incident in question and the fact that the applicant was injured during
that incident.  The only medical record submitted by the applicant shows
that he injured his knee while running and his back pain became worse after
he slept in a cot in Haiti.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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.




            ______________________
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050009520                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060110                                |
|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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