DOCKET NUMBER:  AR20080020091 


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 that his DA Form 199 (Physical Evaluation Board Proceedings) be corrected to show that his retirement was based on an injury or disability resulting from an injury or disease received in line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred in line of duty during a period of war as defined by law and that his disability did result from a combat related injury.

2.  The applicant states that the Department of Veterans Affairs (VA) Combat-Related Special Compensation (CRSC) Board determined that his degenerative disc disease/arthritis of his spine and his degenerative arthritis of his knees were combat-related.

3.  The applicant provides the CRSC rating decision and his DA Form 199 in support of this application.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  Combat-Related Special Compensation, as established by Title 10, U.S. Code, section 1413a, 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-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.

3.  Records show the U.S. Army Physical Disability Agency CRSC Branch granted the applicant’s request CRSC benefits for numerous medical conditions.  Specifically, the applicant was granted benefits for Traumatic Arthritis C Spine and the justification shows "Parachuting injury or airborne operations verified in VA decision and/or medical records."  The applicant was also granted benefits for a knee condition and the justification was shown as "Parachuting injury or airborne operations verified in VA decision and/or medical records."

4.  The applicant's DA Form 199, which was prepared on 11 January 1980 shows that the applicant's spine and knee medical conditions were caused while in the line of duty during a time of war or National emergency.  However, this form does not show that they were incurred as a direct result of armed conflict or caused by an instrumentality of war and incurred in line of duty during a period of war as defined by law

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered.  Evidence clearly shows that the applicant was awarded CRSC benefits for numerous medical conditions.  However, he did not provide nor is there sufficient evidence to show that the arthritis conditions to his back and knees were incurred as a result of direct combat.

2.  The applicant was awarded the CRSC benefits for these conditions because the CRSC Board determined that the applicant's conditions were incurred during a simulation of war and that the evidence did not support that they occurred as a result of direct combat.   

3.  Furthermore, the DA Form 199 in question was prepared on 11 January 1980 and the CRSC benefit program was not established until almost 20 years after the fact.  It would not be appropriate to apply the current CRSC rules to the disability processing system that was in place in 1980.  The applicant has not shown that the DA Form 199 was not accurate or unjust at the time of preparation.  As a result, it would not be in the interest of justice to amend the DA Form 199 as requested.

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)                                         AR20080020091



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080020091



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1