RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        29 August 2006
      DOCKET NUMBER:  AR20060004167


      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. Paul M. Smith                 |     |Chairperson          |
|     |Ms. LaVerne M. Douglas            |     |Member               |
|     |Mr. Ronald D. Gant                |     |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 in three applications that:

      a. his DA Form 8-275-2, Clinical Record Cover Sheet, dated 1 December
1966, be corrected to add that his ulcer hemorrhaged while performing
combat related Special Forces training:

      b.  all of his Department of Veterans Affairs (VA) rated disabilities
be approved for Combat-Related Special Compensation (CRSC); and

      c.  his DA Form 481-1, Clinical Record Cover Sheet, dated 24
September 1954, be amended to show that his duodenum ulcer was incurred
while undergoing combat related training in Germany.

2.  The applicant states, in effect, that all of his VA rated disabilities
were incurred while simulating war and as a result of simulating war.  As
such, his medical records should reflect the combat relationship to his
disabilities, and the VA related disabilities which were disapproved for
CRSC should be approved.

3.  The applicant provides the denial of his request for CRSC
reconsideration, excerpts from his military medical records, a letter from
a retired general, and VA rating decisions.

CONSIDERATION OF EVIDENCE:

1.  The DA Form 8-275-2, Clinical Record Cover Sheet, dated 1 December
1966, submitted by the applicant, Item 23, Diagnoses, has “Dg.  5411 –
Duodenal ulcer with hemorrhage.  LD:  Yes.”

2.  The DA Form 481-1, Clinical Record Cover Sheet, dated 24 September
1954, submitted by the applicant, Item 23, shows that the applicant was
treated for a duodenum ulcer without obstruction, the condition was
incurred in line of duty, and that his condition was improved by the
treatment the applicant received.

3.  In the letter from the retired general, it is stated that the applicant
suffered from a bleeding ulcer attack on 7 November 1966 while assigned to
a Special Forces Group.



4.  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.

5.  On 16 December 2004, the U.S. Army Physical Disability Agency (USAPDA)
CRSC Branch denied the applicant’s request for CRSC for hiatal hernia,
traumatic arthritis, lung condition, and upper respiratory condition.
However, the USAPDA CRSC Branch approved the applicant for CRSC for PTSD
(70%) and tinnitus (10%), for a combined CRSC rating of 70%.  In its
decision the USAPDA CRSC Branch noted that the applicant had been awarded
Individual Unemployment Compensation (IUC).

6.  The USAPDA CRSC Branch has informed the Board’s staff that military
retirees who are granted IUC and who are awarded a 60 percent or greater
CRSC rating are automatically given 100 percent CRSC.

7.  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 any of his
VA rated disabilities.  As stated above, the fact that a disability was
incurred in a theater of operations or during a training exercise is
insufficient, in and of itself, to warrant approval of CRSC.

3.  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 approve his hiatal hernia, traumatic
arthritis, lung condition, and upper respiratory condition for CRSC.

4.  It is noted that the applicant is already receiving 100 percent CRSC
since he has been granted IUC and has been awarded a CRSC rating of over 60
percent.

5.  As for the amendments to the DA Form 8-275-2 and DA Form 481-1, these
are clinical treatment records.  They are meant to record the diagnosis,
treatment and prognosis of patients.  They are not intended to reflect the
type of duty the treated Soldier was performing prior to the treatment.  As
such, there is no basis for granting this portion of the applicant’s
request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

____pms_  ___rdg __  ____lmd_  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.





                                  _________Paul M. Smith________
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060004167                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060829                                |
|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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