IN THE CASE OF:
BOARD DATE: 1 April 2010
DOCKET NUMBER: AR20090013864
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 three Department of Veterans Affairs (VA) rated disabilities be considered combat-related.
2. The applicant states that his was back injured when his living quarters in Cambodia were blown up by the Viet Cong. He adds the incident is not documented.
3. The applicant provides a copy of a Standard Form (SF) 88 (Report of Medical Examination), dated 21 August 1972; a VA Rating Decision, dated 30 January 2008; a VA Rating Decision, dated 24 April 2008; and a self-authored memorandum to the U.S. Army Physical Disability Agency (USAPDA), Alexandria, VA, subject: Combat-Related Special Compensation (CRSC), dated 31 July 2009.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant's military records show that he was retired for length of service in pay grade W-2 on 29 February 1980.
3. CRSC, 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 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.
4. On 31 July 2009, the applicant appealed the USAPDA, CRSC Branch's denial of his request for CRSC.
5. 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 applicant contends that his back was injured by an explosion which was part of an attack by the Viet Cong, but he himself states that the explosion is not documented.
2. Unfortunately without evidence to establish a direct, causal relationship between the applicants VA rated disabilities and war or the simulation of war, there is an insufficient basis in which to grant his requested relief.
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) AR20090013864
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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ABCMR Record of Proceedings (cont) AR20090013864
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