BOARD DATE:	  7 June 2011

		DOCKET NUMBER:  AR20100026619 


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, approval of his claim for Combat-Related Special Compensation (CRSC).

2.  He states his unit was engaged in a firefight in Vietnam in February 1970.  He and several other Soldiers were instructed to move an ammunition trailer out of harm's way.  In the process of moving the trailer, it slipped out of their hands, tipped forward, and fell striking his left foot and lacerating his left great toe.  A medic attended to his wounds and he was evacuated to the 93d General Hospital in Long Binh, Vietnam.

3.  He provides documentation through counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the Army Board for Correction of Military Records (ABCMR) grant the applicant's claim for CRSC previously denied by the CRSC Branch Certifying Officer, U.S. Army Human Resources Command (USAHRC).

2.  Counsel states the CRSC Branch denied the claim because there was no evidence a combat-related event caused the applicant's condition.  He further states, in effect, the applicant is entitled to CRSC because he has received a 10 percent (%) disability rating percentage from the Department of Veterans Affairs (VA) for the injury to his toe, which was incurred when an ammunition trailer, an "instrumentality of war," fell on his foot.

3.  Counsel provides:

* a letter to the ABCMR
* a photograph of the applicant taken at the scene of his injury
* a DA Form 1594 (Daily Staff Journal or Duty Officer's Log)
* a DA Form 8-275-3 (Clinical Record Cover Sheet)
* a notarized statement signed by the applicant
* a Department of Veterans Affairs (VA) Decision Review Officer Decision
* VA medical records
* a series of three letters from the CRSC Branch, USAHRC
* Appendix A (Combat-Related Codes) from DA Form 2860 (Claim for CRSC)

CONSIDERATION OF EVIDENCE:

1.  The applicant was inducted into the Army of the United States on 15 May 1969.  He was honorably released from active duty on 19 March 1971 and he was transferred to the U.S. Army Reserve (USAR).  After a period of service in the USAR, he enlisted in the Regular Army on 8 November 1978.  Following approval of his request for voluntary early retirement, he retired on 30 September 1994.

2.  After his induction in 1969, he was trained in and awarded military occupational specialty 11C (Indirect Fire Infantryman) and assigned for duty in Vietnam.  

3.  Item 38 (Record of Assignments) of his DA Form 20 (Enlisted Qualification Record) shows he served in Vietnam with I Troop, 3d Squadron, 11th Armored Cavalry Regiment (ACR), from 7 November 1969 through 18 October 1970. 

4.  His Official Military Personnel File is void of documentation showing he injured his left great toe during his service in Vietnam.

5.  His service medical records are not available to the Board for review.

6.  Counsel provides a photograph of the applicant seated in a chair with his left leg elevated.  A two-wheeled trailer that appears to be loaded with ammunition is in the background.  The photograph shows his left foot and left great toe are bandaged.  


7.  Counsel provides page 2 of a DA Form 1594 completed by the S2-3,
3d Squadron, 11th ACR, covering the period 0935 to 1730 on 6 February 1970.  The form does not mention a firefight.  It shows two men were evacuated to Quan Loi with burns from the K Troop night defensive position.

8.  Counsel provides a DA Form 8-275-3 that shows the applicant was admitted to the 93d Evacuation Hospital at 1530 hours on 6 February 1970 for a laceration to his left great toe.  The form shows he sustained the injury when a trailer fell on his foot.  He was returned to duty on 7 February 1970.

9.  VA records provided by counsel show the applicant was given a 10% disability rating for residuals of a laceration of his left great toe effective 9 June 2009.  The VA records also show he appeared to have had a crushing injury of the left great toenail in the distant past.  He reported numbness in the toe and that it had bothered him through the years.

10.  Counsel provides letters to the applicant from the CRSC Branch showing he was informed on 9 November 2009 and 22 June 2010 that his claim for CRSC based on VA ratings for bursitis of the right hip and scars on his left great toe was denied.  On each occasion, the reason for denial of CRSC for the scars on his left great toe was a lack of evidence in his claim that a combat-related event caused the condition.  He was also informed that being in a combat zone is not, in and of itself, sufficient to award CRSC and that the disability or injury must be linked to a combat-related event.

11.  In his letter to the ABCMR, counsel states:

It is the Veteran's contention that the CRSC Special Branch erred in denying [the applicant's] claim by insisting the qualifying condition must be caused by direct combat.  [Title 10, U.S. Code, Section 1413a] defines the term "combat-related disability" as a "disability that is compensable under the laws administered by the Secretary of Veterans Affairs and that ... was incurred ... through an instrumentality of war."  An "instrumentality of war" is defined by DD Form 2860 [Claim for CRSC] as "a vehicle, vessel, or device designed primarily for Military Service and intended for use in such service at the time of the occurrence or injury."  When claiming a combat-related disability under the "instrumentality of war" category, there is no requirement that the injury occurred during a war period.  There is only required to be a direct, causal relationship between the "instrumentality of war" and the resulting disability. 

12.  Title 10, U.S. Code, Section 1413a provides the statutory authority for CRSC.


	a.  It states that the Secretary of Defense shall prescribe procedures and criteria under which a disabled uniformed services retiree may apply to the Secretary of a military department to be considered to be an eligible combat-related disabled uniformed services retiree.

	b.  It defines combat-related disability as a disability that is compensable under the laws administered by the Secretary of Veterans Affairs and that is attributable to an injury for which the member was awarded the Purple Heart; or was incurred (as determined under criteria prescribed by the Secretary of Defense):

		(1)  as a direct result of armed conflict,

		(2)  while engaged in hazardous service;

		(3)  in the performance of duty under conditions simulating war; or

		(4)  through an instrumentality of war.

13.  Department of Defense (DOD) guidance on CRSC states a combat-related disability is a disability with an assigned medical diagnosis code from the VA Schedule for Rating Disabilities that was incurred:

	a.  as a direct result of armed conflict,

	b.  while engaged in hazardous service,

	c.  in the performance of duty under conditions simulating war, or

	d.  through an instrumentality of war.

14.  The DOD guidance states the Military Departments will determine whether a disability is combat-related under a, b, c, or d, above, using the definitions and criteria set forth in an attachment to the guidance.  

15.  The DOD guidance states the following regarding instrumentality of war.

Incurrence during an actual period of war is not required.  However, there must be a direct causal relationship between the instrumentality of war and the disability.  The disability must be incurred incident to a hazard or risk of the service.


An instrumentality of war is a vehicle, vessel, or device designed primarily for military service and intended for use in such service at the time of the occurrence or injury.  It may also include such instrumentalities not designed primarily for military service if use of or occurrence involving such instrumentality subjects the individual to a hazard peculiar to military service.  Such use or occurrence differs from the use or occurrence under similar circumstances in civilian pursuits.

A determination that a disability is the result of an instrumentality of war may be made if the disability was incurred in any period of service as a result of such diverse causes as wounds caused by a military weapon, accidents involving a military combat vehicle, injury or sickness caused by fumes, gases, or explosion of military ordnance, vehicles, or material. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support counsel's assertion that the trailer that fell on the applicant's foot was an instrumentality of war.

	a.  The photograph provided by counsel shows a two-wheeled trailer with no unique features indicating it was designed primarily for military service.

	b.  The evidence does not show that the trailer, as an instrumentality not designed primarily for military service, in any way subjected the applicant to a hazard peculiar to military service.  Clearly, he could have incurred a similar injury if a trailer fell on his foot in any other context.

2.  This being the case, his injury and subsequent disability, while compensable by the VA, does not meet the standard for CRSC as it applies to disabilities incurred incident to the hazards or risks associated with instrumentalities of war.  

3.  In view of the foregoing, the applicant is not entitled to the relief he requests.

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)                                         AR20100026619



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100026619



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1