IN THE CASE OF:
BOARD DATE: 21 January 2009
DOCKET NUMBER: AR20080014404
THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:
1. Application for correction of military records (with supporting documents provided, if any).
2. Military Personnel Records and advisory opinions (if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests, in effect, that all of his Department of Veterans Affairs (VA) rated disabilities be approved for Combat-Related Special Compensation (CRSC).
2. The applicant states, in effect, that his hepatitis was considered a compensable disease and combat-related.
3. The applicant provides a one-page self-authored memorandum to DA CRSC, dated 17 January 2008; CRSC Decision, dated 21 July 2005; a VA Memorandum and Rating Decision, dated 24 July 2006; and medical documentation in support of this application.
CONSIDERATION OF EVIDENCE:
1. 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 wasnt 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 percent (%) 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 21 July 2008, the U.S. Army Physical Disability Agency (USAPDA) CRSC Branch denied the applicants request for reconsideration of his previous request for CRSC. Specifically, the VA informed the applicant that after review of all available evidence, they were unable to find justification to reverse the previous denial of his CRSC claim. He was previously informed that there was insufficient evidence to show that his disabilities were combat-related.
3. Records show the VA informed the applicant that his hepatitis was determined to be service-related but there was insufficient evidence to show that it was combat-related.
4. There is no evidence in the available records which show that the applicant sustained a VA rated disability as a direct result of armed conflict, specially hazardous duty, training exercises that simulate war, or caused by an instrumentality of war.
5. The applicant provided a one-page self-authored statement which essentially states that he did not know where he contracted hepatitis and that hepatitis was common in the "Far East."
6. The Under Secretary of Defense (OUSD), Military Personnel Policy has provided policy guidance on the processing of CRSC appeals. In that guidance it was stated 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 contends that his hepatitis was "combat-related." Notwithstanding the applicant's contention, there is no evidence in the available record and the applicant has not provided sufficient evidence which shows that his hepatitis was sustained during combat action or simulation of war. 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 applicants VA rated disabilities, specifically his hepatitis, to war or the simulation of war, there is insufficient basis in which to grant his request.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___X____ ____X___ ___X____ 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.
__________X____________
CHAIRPERSON
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont) AR20080014404
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ABCMR Record of Proceedings (cont) AR20080014404
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