IN THE CASE OF:
BOARD DATE: 06 April 2010
DOCKET NUMBER: AR20090016026
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 his records be corrected to show his spinal disc condition and condition of the skeletal system, conditions for which he was awarded a 30-percent disability rating by the Department of Veterans Affairs (VA), were determined to have been eligible for award of Combat-Related Special Compensation (CRSC).
2. The applicant states that he doesn't understand why his request for CRSC has been denied three times. He has submitted documents to the CRSC Branch which show he participated in tactical exercises, airborne operations, parachute duty, and leadership roles. He performed as a drill instructor for grenade, live-fire weapons practice, bayonet training, road marches, rappelling, and combat confidence and obstacle courses.
3. The applicant provides a CRSC Reconsideration Decision, dated 13 April 2006, VA medical records, excerpts from his military records, and a consultation history and physical examination from a civilian physician, dated 9 May 2002.
CONSIDERATION OF EVIDENCE:
1. The applicant's military records show that he enlisted in the Regular Army on 29 June 1977, was promoted through the ranks to pay grade E-8, and was awarded the military occupational specialty of Land Combat/Light Air Defense System Maintenance Chief. During his military career, the applicant's duties included that of a parachutist, senior drill sergeant, and first sergeant. He was retired for years of service on 31 August 1998.
2. 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 wasn't for the statutory prohibition for a military retiree to receive a VA disability pension.
3. 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, 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.
4. 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, hazardous duty, training exercises that simulate war, or caused by an instrumentality of war.
5. On 13 April 2006, the U.S. Army Physical Disability Agency CRSC Branch informed the applicant that his spinal disc condition and condition of the skeletal system were not qualifying CRSC conditions because there was no evidence to show that a combat-related event caused the condition.
6. The civilian physician's consultation history and physical examination concerns the applicant's history of progressive cervical neck pain with radiation into his right arm. In that summary the physician stated that the applicant reported that there was no injury or trauma. Rather, he attributed the problem to his multiple parachute jumps and other activities that he feels caused a significant amount of his current pain.
7. The Under Secretary of Defense 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 are 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 hazardous duties such as parachuting or scuba diving.
2. The applicant had stated that there was no trauma which caused his VA-rated disabilities. He had specifically attributed his VA-rated disabilities to the cumulative wear and tear of performing parachutist and drill sergeant duties. In this regard, as stated above, a military retiree must establish a direct, causal relationship to the requested VA-rated disabilities to war or the simulation of war to qualify for CRSC. In other words, to qualify for CRSC an applicant must provide documentation which clearly demonstrates that his or her disability was incurred as a result of combat action, training exercises, or exceptionally hazardous duties.
3. Whether or not 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.
4. Unfortunately without evidence to establish a direct, causal relationship between the applicant's 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) AR20090016026
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ABCMR Record of Proceedings (cont) AR20090016026
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