IN THE CASE OF:
BOARD DATE: 8 November 2011
DOCKET NUMBER: AR20110002123
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 he be shown to qualify for Combat Related Special Compensation (CRSC).
2. The applicant states he meets all of the requirements for entitlement to CRSC under the revised provisions of the 2008 National Defense Authorization Act (NDAA).
3. The applicant provides copies of a Retiree Account Statement and a 22 January 2004 Army Physical Disability Agency (CRSC) denial letter.
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 served in the Regular Army from 28 May 1964 through 5 April 1967; this period of service includes 6 months in Vietnam.
3. A Line of Duty Report (LOD), dated 4 August 1966, shows the applicant was a fire team leader in the Reconnaissance Platoon of Headquarters and Headquarters Company, 1st Battalion, 14th Infantry, when he was injured on 23 June 1966. The injury occurred when a Chinook helicopter approached for a landing, blowing over a tree which struck the applicant on the back. The injury was determined to be in the line of duty. The report does not indicate if there was any hostile action at the time of the injury.
4. The applicant's medical records show he suffered a fracture dislocation of the vertebra (at T11 - T12) with immediate paraplegia of the lower extremities and loss of bladder and bowel control.
5. A Physical Evaluation Board (PEB) determined the applicant was totally disabled (100 percent) and recommended that he be placed on the Temporary Disability Retired List (TDRL) with reevaluation in 18 months.
6. On 28 May 1964, the applicant was retired and placed on the TDRL. He was subsequently permanently retired due to a total physical disability.
7. The available record does not include any documentation that indicates the applicant was considered for award of the Purple Heart. Neither the applicant's DD Form 214 (Report of Transfer or Discharge) nor the DA Form 20 (Enlisted Qualification Record) shows receipt of the Purple Heart.
8. The Vietnam Casualty Roster does not list the applicant's name as a combat casualty.
9. The applicant's Retiree Account Statement shows he waived his Department of Veterans Affairs (VA) benefits.
10. On 22 January 2004 the Army Physical Disability Agency (CRSC) denied the applicant entitlement to CRSC due to the fact he did not have 20 qualifying years of service.
11. Title 10, U.S. Code, Chapter 61 (Chapter 61), sets forth provisions for retirement or separation due to a physical disability including personnel receiving medical retirement with a 30% or greater VA rated disability.
12. CRSC provides military retirees a monthly compensation that replaces their VA disability offset. The 2008 NDAA expanded CRSC eligibility to include Chapter 61 medical retirees with a 30 percent or greater disability rating. Qualified military retirees must be an active duty or Reserve retiree with 20 or more years of creditable service or a Chapter 61 medical retiree receiving military retired pay, have a 10 percent or greater VA rating for a combat-related injury (emphasis added), and have their military retired pay reduced by receipt of or entitlement to VA disability payments.
DISCUSSION AND CONCLUSIONS:
1. The applicant states he meets all of the requirements for entitlement to receipt of CRSC under the revised provisions in the 2008 NDAA.
2. The applicant fails to meet the 2008 revised requirements for CRSC because his injury is not shown to have been combat-related.
3. The LOD does not indicate his injury was combat-related. It appears from the available records that the injury was considered an accident and this is borne out by the fact that he is not listed on the Vietnam Casualty Roster and was not awarded the Purple Heart for the injury.
4. Regrettably, in the absence of evidence that shows his injuries were the result of hostile action and not an accident the applicant is not shown to be entitled to CRSC.
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.
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