IN THE CASE OF:
BOARD DATE: 13 September 2011
DOCKET NUMBER: AR20110004455
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 reconsideration of his previously denied request that his lumbar spine injury be approved for Combat Related Special Compensation (CRSC) purposes.
2. The applicant states in correspondence written to his congressman, in effect, that he injured his back while driving a High Mobility Multipurpose Wheeled Vehicle (HMMWV) on a 4-day drive from Camp Shelby, MS to Fort Leonard Wood, MO.
3. The applicant provides:
* a self-authored statement
* extracts from his medical records
* his CRSC application and decisional documents
* his previous ABCMR decisional document, Docket Number AR20090019690, dated 8 April 2010
* correspondence to and from the ABCMR
CONSIDERATION OF EVIDENCE:
1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090019690 on 8 April 2010.
2. The applicant provides a new argument that he made to his congressional representative along with additional medical documentation which was not previously reviewed by this Board. Therefore, it is considered new evidence and warrants consideration by the Board.
3. The applicant contends his back injury occurred while training Soldiers on a HMMWV which is specifically designed for the military. He claims the training was also for peace and simulations of war. Further, he used the HMMV as a control vehicle in a military convoy.
4. The applicant was retired on 30 April 1994 by reason of sufficient service for retirement.
5. On 10 February 2009, the U.S. Army Physical Disability Agency, 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 a combat-related event caused any of those conditions.
6. 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 wasnt 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.
7. 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 4-day drive from Camp Shelby, MS to Fort Leonard Wood, MO. Again in this regard, there is no evidence to show his spine injury had a direct, causal relationship to war or the simulation of war.
3. In view of the foregoing, there is insufficient evidence 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 to amend the decision of the ABCMR set forth in Docket Number AR20090019690 dated 8 April 2010.
___________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) AR20110004455
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ABCMR Record of Proceedings (cont) AR20110004455
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