BOARD DATE:	  8 April 2010

		DOCKET NUMBER:  AR20090019690 


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 lumbar spine injury be approved as combat-related for Combat Related Special Compensation (CRSC) purposes.

2.  The applicant states he was on a training mission to redeploy combat equipment that was returned from the Gulf War.  During the four-day drive, the constant pounding of the metal frame hitting his lower back caused his spine injury.  He contends that since his back injury was caused by an instrumentality of war it should be approved as combat-related.

3.  The applicant provides his CRSC application in which he stated his back was injured when he was driving a HMMWV [High Mobility Multipurpose Wheeled Vehicle] on a four-day drive from Camp Shelby MS to Fort Leonard Wood, MO.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that he enlisted in the Regular Army on 9 October 1975 with 2 years, 11 months, and 7 days of prior active service.  He was awarded military occupational specialty (MOS) 64C (motor transport operator).  His MOS was later converted to MOS 88M with a skill qualification identifier of "H" as an instructor.

2.  The applicant was retired on 30 April 1994 by reason of sufficient service for retirement.

3.  On 10 February 2009, the U.S. Army Physical Disability Agency (USAPDA) CRSC Branch informed the applicant that none of his Department of Veterans Affairs (VA) disabilities were CRSC qualifying conditions because there was no evidence to show that a combat-related event caused any of those conditions.

4.  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.  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, especially 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, especially hazardous duty, training exercises that simulate war, or caused by an instrumentality of war.

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.

6.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) defines instrumentality of war as a device designed primarily for military service and intended for use in such service at the time of the occurrence of the injury.  It may also be a device not designed primarily for military service if use of or occurrence involving such a device subjects the individual to a hazard peculiar to military service.  This use or occurrence differs from the use or occurrence under similar circumstances in civilian pursuits.  There must be a direct causal relationship between the use of the instrumentality of war and the disability must be incurred incident to a hazard or risk of the service.






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 especially hazardous duties such as parachuting or scuba diving.

2.  The applicant stated that his back was injured when he was driving a HMMWV on a four-day drive from Camp Shelby, MS to Fort Leonard Wood, MO. In this regard, a HMMWV is not a device designed primarily for military service and was not being used in such service at the time of the occurrence of the injury.  A HMMWV is readily available to civilians from new car dealerships and it must be presumed that major roads were used in redeploying the vehicles.

3.  As for the applicant's contention that he was on a training mission when he was transporting the HMMWV, being assigned a mission in the continental United States of returning military equipment to the unit to which it is assigned could hardly be considered a training mission.  But even if it was a training mission, there is no evidence to show that his spine injury had a direct, causal relationship to war or the simulation of war.

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 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)                                         AR20090019690



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090019690



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1