IN THE CASE OF:
BOARD DATE: 26 February 2009
DOCKET NUMBER: AR20090001105
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 her records be corrected to show her bilateral knee injury was determined to have been incurred as the direct result of armed conflict, specially hazardous military duty, training exercises that simulate war, or caused by an instrumentality of war.
2. The applicant states, in effect, that her bilateral knee injury was incurred during a Joint Forces Field Training Exercise and that this disability was as a direct result of simulation of war.
3. The applicant provides a CRSC Reconsideration Decision, dated 17 July 2007 and medical documentation 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 17 July 2007, the U.S. Army Physical Disability Agency (USAPDA) CRSC Branch informed the applicant that her bilateral knee condition was not a qualifying condition because it could not be determined how the disability occurred.
3. Although evidence shows that the applicant did in fact sustain an injury to both knees, there is no evidence in the available record which shows that the injury 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 her bilateral knee condition was directly caused 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 her bilateral knee condition 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 her 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) AR20090001105
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ABCMR Record of Proceedings (cont) AR20090001105
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