IN THE CASE OF:	  

		BOARD DATE:	  15 September 2011

		DOCKET NUMBER:  AR20110004932 


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, reversal of the decision to deny him combat-related special compensation (CRSC) for injuries received during simulated and actual combat. 

2.  He states that all of his injuries meet the requirement threshold for CRSC.  He retired in December 2003.  He repeatedly submitted supporting documents, statements, and records.  He has never been given a reasonable explanation why he has been refused, only that there is a lack of evidence.  All of his initial injuries occurred before the implementation of CRSC.  The write-up reflected diagnosis, treatment, and prognosis.  The incident was usually attributed to “Army training” and did not reflect contributing factors.  

3.  He also states that what was once written as, “MSG (master sergeant) MXXXX injured his back during operations” is now written, “MSG MXXXX suffered a severed debilitating back injury while conducting a high altitude low opening operation in support of a real world contingency operations directed by the National Command Authority.”  That verbiage would meet the standards used today in write-ups for CRSC applicants.  His generation did not have known standards for CRSC because it did not exist when they were being injured.

4.  He provides:

* Standard Forms 600 (Health Record – Chronological Record of Medical Care), for July 1994 and July 1999 and corresponding Radiologic Examination Reports
* Release from Active Duty orders, dated 22 August 2003
* Report of Medical Examinations, dated 26 August 2003
* DD Form 214 (Certificate of Release or Discharge from Active Duty) ending on 30 November 2003
* Department of Veterans Affairs (VA) Rating Decision, dated 16 December 2003
* Bronze Star Medal certificate, dated 4 January 2004
* VA Medical History memorandum, dated 30 June 2009
* Memorandum For Record (MFR), dated 4 August 2009
* DD Form 2860 (Claim for CRSC), dated 17 November 2009
* MRF, dated 4 June 2010
* Letter from CRSC Branch, Army Human Resources Command (AHRC), dated 12 January 2011

CONSIDERATION OF EVIDENCE:

1.  The applicant initially enlisted in the Regular Army on 9 November 1983 and he held the military occupational specialties 18B (Special Forces (SF) Weapons Sergeant), 18E (SF Communications Sergeant), 23R (Hawk Missile Systems Mechanic), and 18Z (SF Senior Sergeant).  He served on active duty through multiple reenlistments.

2.  An SF 600, dated 8 July 1994, shows he was diagnosed with knee pain after a scout motorcycle accident.  An SF 600, dated 27 July 1994, shows he sought treatment for right shoulder pain.   

3.  A Report of Medical Examination, dated 26 August 2003, noted he had been diagnosed with left shoulder, right shoulder, and knee arthritis.

4.  He was honorably released from active duty, in pay grade E-8, on 30 November 2003, for sufficient service for retirement.  He was credited with completion of over 20 years of creditable active service. 

5.  His complete service and/or VA medical records are not available for review with this case.  He provides:

	a.  VA Rating Decision, dated 16 December 2003, awarding him service-connected disability compensation for Lumbar Spine Degenerative Disc Disease and Incidental Finding of Surgical Clips in Pelvis, Right Knee Patellofemoral Pain Syndrome, and Left and Right Shoulder Impingement Syndrome.  The VA decision was based on his service medical records which showed he was treated for lower back pain in 1991 and again in 1998 where x-rays showed degenerative 
changes at L1, he was seen in 1994 for right knee pain secondary to a bicycle accident and was assessed with a partial medical collateral ligament tear versus a strain, and he was seen in 1999 for right shoulder pain and was assessed with a labral tear;

	b.  VA memorandum, dated 30 June 2009, stating that during his service he incurred numerous orthopedic injuries resulting in chronic conditions which limited his daily activities making it necessary for him to rely on medication for pain relief which included chronic cervical pain related to a parachute injury in 1996 and a right ACL (anterior cruciate ligament) injury/tear in July 1994;

	c.  MFR, dated 29 July 2009, verifying receipt of two injuries during combat operations in Operation Iraqi Freedom.  The MFR stated in June 2003 he was part of an assaulting element infilling via fast roper on to an objective in Yusefia, Iraq when he injured his right should.  He was treated by his troop medic and RTD (returned to duty) 2 weeks later.  Also in June 2003, he was part of an assaulting element negotiating a wall lined with broken glass on an objective in Baghdad, Iraq, when he overextended his left arm and injured his left shoulder.  He was treated by the troop medal and RTD 1 month later at Fort Bragg, NC.  The troop medic completed an SF 600 for both injuries but documentation did not remain in his permanent record despite follow on medical care for those injuries;

	d.  MFR, dated 4 August 2009, stating he sustained chronic lumbar (low back), thoracic (mid back), cervical (neck), right and left knee, right and left should pain; high frequency hearing loss, and squarmous cell carcinoma of the tongue that were developed or incurred while service on active duty;

	e.  DD Form 2860, dated 17 November 2009;

	f.  MFR, dated 4 June 2010, certifying that on/about 8 June 1994, while conducting scout motorcycle training while on active duty he sustained an injury to his knee and received treatment at the troop medical center; and 

   g.  Letter, dated 10 August 2007, from CRSC Compensation Branch, HRC, again denying him CRSC compensation for lumbar spine, bursitis of right knee, and clavicle or scapula impairment of left and right shoulders as no new evidence was provided to show combat-related event(s) caused the injuries.
   
6.  CRSC, as established by section 1413a, Title 10, U.S. Code, 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 wasn’t 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.

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 has submitted evidence to show that his Lumbar Spine Degenerative Disc Disease and Incidental Finding of Surgical Clips in Pelvis, Right Knee Patellofemoral Pain Syndrome, and Left and Right Should Impingement Syndrome are service related.  However, he has not submitted any evidence which would show that his injuries are combat related.  

3.  The applicant appears to confuse service connection for VA purposes with CRSC eligibility.  These are not necessarily the same.  If they were the same, CRSC would be automatic for those military retirees with VA disability pensions.  Service connection for VA purposes means the VA has determined that the disability was incurred or aggravated during military service.  CRSC determinations require evidence of a direct, causal relationship to the military retiree’s VA rated disabilities to war or the simulation of war.

4.  Without evidence to establish a direct, causal relationship to the applicant’s VA rated disabilities to war or the simulation of war, there is insufficient basis 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 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)                                         AR20110004524



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ABCMR Record of Proceedings (cont)                                         AR20110004932



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