RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           13 December 2005
      DOCKET NUMBER:   AR20050009744


      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. Shirley L. Powell             |     |Chairperson          |
|     |Mr. Melvin H. Meyer               |     |Member               |
|     |Mr. Allen L. Raub                 |     |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 military medical records be corrected
from showing that he strained his back in 1969 to show that he herniated a
disc in his back.  He also requests that he be given a disability rating
for that condition and that it be approved for Combat-Related Special
Compensation (CRSC).

2.  The applicant states that imaging tests taken on his back determined
that he has a herniated disc.

3.  The applicant provides the partial denial of his request for CRSC and
medical records.  The medical records show that:  on 13 September 1969, the
applicant was treated for an acute back injury from the preceding day.  X-
rays were taken of the applicant’s back and no abnormalities were noted; on
23 December 1982, the applicant reported that he had an onset of low back
pain after lifting a heavy object that day.  He was diagnosed with acute
low back sprain with radiating pain to his left leg; on 20 November 1986,
the applicant was treated for chronic low back pain.  The physician stated
that “This strictly unilateral sacroiliac joint disease usually brings to
mind the following entities – infectious (tuberculosis), renal
[unreadable]. Osteitis condensans ilii (often times secondary to pubic
symphysis instability) and degenerative”; on 27 February 1989, the
applicant was given a scan of his spine which was interpreted as a
herniated nucleus pulposus (HNP) of the L4-5 level; and on 3 June 2003 the
Department of Veterans Affairs (VA) diagnosed the applicant with C3-4 focal
central disc protrusion and mild central canal stenosis; C4-5 degenerative
disc and associated spondylosis.  Moderate central canal stenosis; right C5
neural foraminal encroachment; bilateral C6 neural foraminal encroachment;
C5-6 degenerative disc and associated spondylosis with moderate central
canal stenosis; bilateral C6 neural foraminal encroachment; C6-7
degenerative disc and associated spondylosis.  Mild central canal stenosis;
bilateral C7 neural foraminal encroachment; and evidence of cord effacement
or compression without intrinsic cord abnormality.

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.  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 applicant has not submitted evidence that the diagnosis of back
strain made on 13 September 1969 was in error.  The first diagnosis of HNP
was made on 27 February 1989, over 19 years after the initial incident.

2.  The Army has a vested interest in maintaining the integrity of its
records.  Before the Board would recommend altering properly constituted
medical records, it would have to be shown that a clear and unmistakable
error was made.  No such demonstration has been made in this case.

3.  As for the applicant’s request to be rated for HNP, it is presumed that
he is referring to a VA disability rating.  Since the Board has no
authority over the VA, there is no basis for considering this portion of
the applicant’s request.

4.  As for CRSC, since the applicant has not been rated for HNP by the VA,
he cannot be considered for CRSC for that condition.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

____alr__  ____mhj_  ____slp____  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.





            _________Shirley L. Powell______
                    CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20050009744                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |YYYYMMDD                                |
|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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