IN THE CASE OF:	  

		BOARD DATE:	  26 May 2011

		DOCKET NUMBER:  AR20100026484


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 all of his disabilities be determined to be combat-related for the purpose of qualifying for Combat-Related Special Compensation (CRSC).

2.  The applicant states, in effect, that he has service-connected disabilities that resulted from his combat tour in Iraq or the hazardous duty he performed as a paratrooper.  He also states he is currently rated as unemployable by the Department of Veterans Affairs (VA).

3.  The applicant provides:

* His DD Form 214 (Certificate of Release or Discharge from Active Duty)
* His National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* A memorandum from the U.S. Army Physical Disability Agency, dated
15 August 2007 with enclosed DA Form 199 (Physical Evaluation Board (PEB) Proceedings) convened on 23 July 2007 and approved on 1 August 2007
* Orders D229-09 issued by the U.S. Army Physical Disability Agency, dated 15 August 2007

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.  After initial service in the Regular Army, the applicant enlisted in the Army National Guard on 22 May 1970.  He served through multiple periods of enlistment and reenlistment, in multiple military occupational specialties, and he was medically retired on 15 August 2007.

3.  On 15 November 2005, he underwent a physical examination for the purpose of evaluation by a Medical Evaluation Board (MEB).  The narrative summary for this examination diagnosed him with:

* chronic neck pain secondary to herniated nucleus pulposus C3-4 and
C5-6, medically unacceptable, line of duty - yes, existed prior to service - no, service aggravated - not applicable
* chronic low back pain secondary to disc disease with bilateral L5-S1 radiculopathy, medically unacceptable, line of duty - yes, existed prior to service - no, service aggravated - not applicable

4.  On 15 December 2005, an MEB convened at Fort Gordon, GA and after consideration of clinical records, laboratory findings, and physical examinations, the MEB determined he suffered from:

* chronic neck pain secondary to herniated nucleus pulposus C3-4 and   C5-6, incurred while entitled to base pay – yes, existed prior to service – no
* chronic low back pain secondary to disc disease with bilateral L5-S1 radiculopathy, incurred while entitled to base pay – yes, existed prior to service – no

5.  During the processing of his MEB, he indicated he did not desire to continue on active duty under Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  On 15 December 2005, the MEB findings and recommendation were approved and his case was referred to a PEB.  On
23 December 2005, he was informed of and agreed with the approved findings and recommendation of the board.

6.  On 6 February 2006, an informal PEB convened at Fort Sam Houston, TX to consider his case.  The PEB determined he was unfit for continued military service by reason of:

	a.  chronic neck pain with a combination of C5-6 disc herniation and spondylitic ridge producing mild cord compression and mild compression of existing nerve roots at C5-6, normal electrodiagnostic study, range of motion limited by pain, positive tenderness;

	b.  chronic low back pain secondary to moderate facet arthropathy, spinal stenosis at L3-4, L4-5 and L5-S1, and foraminal stenosis bilaterally at L3-4, L4-5, L5-S1, positive tenderness, range of motion limited by pain;

	c.  L5-S1 radiculopathy, left, rated as mild incomplete paralysis; and

	d.  L5-S1 radiculopathy, right, rated as mild incomplete paralysis.

As a result, it recommended a combined 40 percent (%) disability rating percentage and placement on the TDRL with reexamination in March 2007.

7.  The DA Form 199 from the PEB that convened on 6 February 2006 and approved on 22 March 2006 indicated that the VA Schedule for Rating Disabilities (VASRD) codes applicable to his medical conditions were:

* 5243 (chronic neck pain…), rated at 10%
* 5299 and 5242 (chronic low back pain…), rated at 10%
* 8520 (radiculopathy left…), rated at 10%
* 8520 (radiculopathy right…), rated at 10%

8.  On 22 February 2006, he concurred with the findings and recommendation of the PEB and waived a formal hearing of his case.

9.  On 22 February 2006, he was retired from inactive service because of physical disability and placed on the TDRL effective 7 April 2006.  His NGB

Form 22 shows he was honorably retired under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 8-26j(1), by reason of medical unfitness.  He had completed 22 years and 1 month of net service during his period of enlistment.

10.  On 28 March 2006, the VA approved his claim for service-connected compensation, giving him a combined rating of 50%.  

11.  On 23 July 2007, a TDRL PEB convened at Fort Sam Houston, TX to consider his case.  The PEB determined his condition had not improved to the extent that he was considered fit for duty.  Accordingly, it recommended a combined 40% disability rating percentage and placement on the permanent retired list.  On 26 July 2007, he concurred with the TDRL PEB's findings and recommendation and waived a formal hearing of his case.

12.  On 15 August 2007, he was removed from the TDRL and permanently retired, effective 16 August 2007.

13.  Between 2007 and 2010, he applied to the U.S. Army Human Resources Command for CRSC on 4 separate occasions.  In each instance, his claim was denied because the CRSC Program Office was unable to verify his disabilities were combat-related.

14.  There are no documents in the available record and he did not submit any documents, which indicate his medical conditions resulted from armed conflict, hazardous duty, training exercises that simulate war, or an instrumentality of war.

15.  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 were not 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% 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% disabled or who are rated at least 60% 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.

16.  The Under Secretary of Defense for Military Personnel Policy provided policy guidance on the processing of CRSC appeals.  The guidance states 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's request for correction of his PEB proceedings to show his medical conditions were combat-related for the purpose of qualifying for CRSC was carefully considered; however, there is insufficient evidence to support his request.

2.  He was considered by an MEB in December 2005.  He agreed with the findings and recommendation of the MEB.  There is no evidence which confirms his medical conditions were combat-related at the time of his MEB.

3.  He was considered by a PEB in February 2006, which found him physically unfit with a recommended combined disability rating of 40%.  As a result, he was placed on the TDRL by reason of temporary disability.  He concurred with the findings and recommendation of the PEB and waived his right to a formal hearing of his case.

4.  He was considered by a TDRL PEB in July 2007, which found him physically unfit and recommended a combined rating of 40%.  As a result, he was removed from the TDRL and permanently retired.  He again concurred with the findings and recommendation of the PEB and waived his right to a formal hearing of his case.

5.  The evidence of record does not indicate the applicant’s disability processing was in error or unjust or that his medical conditions were improperly evaluated by the PEB.  There is no evidence at this time that supports his contention that his medical disabilities are combat-related; therefore, there is no basis for granting the applicant's requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  _____X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.



      __________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)                                         AR20100007330



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ABCMR Record of Proceedings (cont)                                         AR20100026484



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