IN THE CASE OF:	  

		BOARD DATE:	    6 October 2011

		DOCKET NUMBER:  AR20110004533 


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 correction of his military records to show that he is eligible for Combat-Related Special Compensation (CRSC).

2.  The applicant states he served his country for 20 1/2 years.  He thinks he is entitled to CRSC payment because all of his injuries/illnesses were service connected.

3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty); DD Form 2860 (Claim for CRSC), dated 
9 November 2010; service medical records dated between 1987 and 1996; and two letters from the CRSC Branch, U.S. Army Human Resources Command (HRC), Fort Knox, Kentucky, dated on 19 October and 21 December 2010.

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.  At the time of his application, the applicant was retired in the rank of sergeant first class, pay grade E-7, due to sufficient length of service.  He had completed 20 years, 6 months, and 27 days of creditable active duty in the Regular Army.

3.  In a letter dated 19 October 2010, the Certifying Officer, CRSC, HRC, Fort Knox, Kentucky informed the applicant that his claim for CRSC had been reviewed and denied because he did not include a copy of his Department of Veterans Affairs (VA) rating decision.  He was further informed that his claim would be held for a period of 60 days pending receipt of the VA rating decision.

4.  In a letter dated 21 December 2010, the Certifying Officer, CRSC, HRC, Fort Knox, Kentucky informed the applicant that his claim for CRSC had been reviewed and denied because the following disabilities could not be verified as being combat related:

VASRD*
DESCRIPTION
PERCENTAGE
JUSTIFICATION/COMMENTS
5242
Degenerative arthritis of the spine; Degenerative disk disease of the lumbosacral spine
10%
Final disapproval - No evidence in claim to show that a combat-related event caused condition
5242
Degenerative arthritis of the spine; Degenerative disc disease
10%
Final disapproval - documentation does not show accident or incident to connect disability to a combat-related event
7101
Hypertension
10%
Final disapproval - No evidence in claim to show that a combat-related event caused condition
5262
Lower leg condition;  right tibia and fibula myositis
0%
Final disapproval - No evidence in claim to show that a combat-related event caused condition
5010
Traumatic arthritis; postoperative residuals of left knee
10%
Final disapproval - No evidence in claim to show that a combat-related event caused condition
* VASRD: VA Schedule for Rating Disabilities
5.  A review of the medical records provided by the applicant failed to show that any of his conditions were incurred as a direct result of combat-related events. 

6.  A copy of the applicant's VA rating decision is not available for review.

7.  In the DD Form 2860 provided by the applicant, he indicates that his injuries/illnesses were incurred as a result of getting off of a missile truck during a training event. 

8.  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.

9.  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 weren't for the statutory prohibition for a military retiree to receive a VA disability pension.  

	a.  Payment is made by the Military Department, not the VA, and is tax free.  

	b.  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.  

	c.  Qualified disabilities must be compensated by the VA and rated at least 10-percent disabling.  

	d.  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, specially hazardous duty, training exercises that simulate war, or caused by an instrumentality of war.  

	e.  Military retirees who are approved for CRSC must have waived a portion of their military retired pay because CRSC requires the Military Department to return to the military retiree a portion of the waived retired pay.




DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show that he is eligible for CRSC because all of his injuries/illnesses were service connected.

2.  CRSC criteria are specifically for those military retirees who have combat- related disabilities.  Incurring disabilities in connection with military service is not 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.  Simply dismounting a vehicle would not normally qualify as a hazardous duty. 

3.  In view of the above, the applicant's request should be denied.

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)                                         AR20110004533





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ABCMR Record of Proceedings (cont)                                         AR20110004533



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