RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           8 September 2005
      DOCKET NUMBER:   AR20050001976


      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. William D. Powers             |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Larry J. Olson                |     |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 back strain, major depressive disorder and tinnitus
be approved for Combat-Related Special Compensation (CRSC).

2.  The applicant states that he injured his back in 1967 when he fell off
a truck in Vietnam, and re-injured his back on 15 May 1970 when he flipped
a jeep which landed across his back during a training exercise.

3.  His tinnitus was due to his working on aircraft engines without hearing
protection, along with the noise of mortar fire, rocket fire and B-52
bomber strikes.

4.  His depression started when he was transferred to another unit in
Vietnam.  The Soldier who took his position as a door gunner on a
helicopter in his former unit was killed.  “This put me back on the alcohol
and into a major depressive state.  I stopped working on airplanes although
I was always carried that way on the company roster.  I was the company’s
illegal supply system.  This gave me more time alone and more time to drink
heavily.”

3.  The applicant provides orders which show that he flew on helicopters in
combat in Vietnam and that he was awarded an Army Commendation Medal for
Heroism; the denial of his CRSC application; his VA disability rating; and
his military medical records.

4.  The applicant’s military medical records show his treatment for his two
injuries and his depression.  His medical history is consolidated in a
report of physical examination in which it was stated that the applicant
had: a hearing loss since working on aircraft from 1962 to 1968; a head
injury and broken bones from a car accident in 1964; a back injury from a
truck accident in 1967; alcoholism which was treated by complete abstinence
since 1973; and anxiety problems in 1979 due to his assignment at the time.

CONSIDERATION OF EVIDENCE:

1.  Combat-Related Special Compensation (CRSC), as established by Section
1413a, Title 10, United States Code, as amended, states that 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.  CRSC
benefits are equal to the amount of VA disability compensation offset from
retired pay based on those disabilities determined to be combat-related.

2.  Concurrent Retirement and Disability Payment (CRDP), as established by
the Fiscal Year (FY) 2004 National Defense Authorization Act (NDAA),
provides a 10-year phase-out of the offset to military retired pay due to
receipt of VA disability compensation for members whose combined disability
rating is 50% or greater.

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.  CRSC was passed into law as the first stage of an ongoing legislative
initiative to eliminate the prohibition of military retirees from receiving
VA disability benefits.  Due to cost constraints, while all military
retirees will eventually receive concurrent receipt of VA disability
compensation, only those military retirees who have disabilities incurred
in combat, or in conditions simulating combat (which includes hazardous
duties), are eligible for CRSC.

2.  As stated above, the CRSC criteria is specifically for those military
retirees who have combat related disabilities.  Incurring disabilities
while in a theater of operations 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.

3.  The applicant has submitted documentation which shows that he was in a
car accident in 1964 which resulted in unspecified physical damage to him,
although it was specified that the physical damage included a head injury
and broken bones.  The applicant injured his back when he fell off a truck
in 1967 while in Vietnam.  However, there is no evidence or indication that
his falling off the truck was combat related.  He re-injured his back on 15
May 1970 when he flipped a jeep.  However, there is no evidence that he was
performing duties simulating combat when this accident occurred.  The
stated reason for his hearing loss, working on aircraft from 1962 to 1968;
was work (service) related, not combat related.  While the VA has properly
rated the applicant for this condition, it is not combat related.  The
applicant has not submitted any documentation to substantiate the second
reason he has given for his hearing loss, the loud noises he was exposed to
from weapons firing and explosions.  The applicant’s anxiety problems were
reported to have commenced in 1979 due to his assignment at the time.  This
was well after the end of the Vietnam War and cannot be considered combat
related.

4.  The denial of the applicant’s request does not mean he will not be
compensated for his service related disabilities.  The denial means that he
will not be compensated for his disabilities in the first group of military
retirees being given this compensation.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__jtm ___  __wdp___  ___ljo___  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.





            _________William D. Powers_________
                    CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20050001976                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050908                                |
|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.                      |                                        |


-----------------------
[pic]