IN THE CASE OF:
BOARD DATE: 19 February 2008
DOCKET NUMBER: AR20080019334
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 the Department of Veterans Affairs (VA) determine that he is eligible for Combat-Related Special Compensation (CRSC) for his seizure disorder caused by heat prostration.
2. The applicant states, in effect, that his seizure disorder was caused by a combat-related event, specifically heat prostration, and that this disability was as a direct result of simulation of war.
3. The applicant provides a CRSC Reconsideration Decision, dated 27 October 2008; VA Memorandum and Rating Decision, dated 2 June 1964; and his separation document in support of this application.
CONSIDERATION OF EVIDENCE:
1. CRSC, as established by Section 1413a, Title 10, U.S. 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 percent disabled or who are rated at least 60 percent 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 27 October 2008, the U.S. Army Physical Disability Agency (USAPDA) CRSC Branch informed the applicant that although his seizure disorder was service-connected, his condition was determined not be a combat-related disability.
3. There is no evidence in the available record which shows that the seizure disorder was sustained as a direct result of armed conflict, specially hazardous duty, training exercises that simulate war, or caused by an instrumentality of war.
4. 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 has stated that his seizure disorder was directly caused by heat prostration in simulation of war. 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 seizure disorder 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 between the applicants VA rated disabilities and 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) AR20080019334
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20080019334
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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