IN THE CASE OF:	  

		BOARD DATE:	  15 September 2011

		DOCKET NUMBER:  AR20110005437 


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 award of Combat-Related Special Compensation (CRSC) benefits.

2.  He states he was denied CRSC two times.  He explains he was mobilized in support of Operation Enduring Freedom (OEF) for 1 year and he was training troops for Iraq and Afghanistan.  He adds that during the training, everything was simulating war conditions.  He states that on 8 August 2004, while setting up base camp, a tent rope broke and he fell to the ground hurting his neck, back, and hands.

3.  He provides:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 31 May 2005
* a letter from the U.S. Army Human Resources Command (HRC), Fort Knox, KY, dated 27 December 2010
* Orders 04-148-00288, issued by Headquarters, 87th Division, Birmingham, AL, dated 27 May 2004
* Orders 04-148-00201, issued by the same headquarters, dated 27 May 2004
* a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 21 September 2005
* 
Orders D129-06, issued by the U.S. Army Physical Disability Agency (USAPDA), Washington, D.S., dated 8 May 2008
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings, dated
8 February 2007
* ARPC Form 249-2-E (Chronological Statement of Retirement Points), dated 30 June 2009
* Department of Veterans Affairs (VA) Rating Decision, dated 12 May 2010
* DA Form 638 (Recommendation for Award), dated 6 October 2004

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 5 December 1975.  He was honorably discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), Trainee Discharge Program, on
3 March 1976 due to his inability to demonstrate sufficient comprehension of the English language after being given every opportunity to improve.  He completed 2 months and 29 days of active service this period.

2.  On 4 March 1976, he enlisted in the Army National Guard and on 26 April 1991 he was transferred to the U.S. Army Reserve (USAR).  On 1 June 2004, he was ordered to active duty in support of OEF and he remained on active duty until he was honorably released on 31 May 2005 at the completion of required active service.  He completed 1 year of active service this period.

3.  A DA Form 2173, dated 21 September 2005, shows he was seen as an outpatient at the Rodriguez Army Health Clinic at Fort Buchanan, PR.  The form indicated the applicant's incident occurred on 8 August 2004.  It shows that during the applicant's mobilization at Fort Dix, NJ, he was detailed to set-up the base camp.  While putting together 29 tents with other Soldiers, he fell to the ground from the top of one of the tents.  He hurt his back and neck.  The form indicates his injury was considered to have incurred in the line of duty.

4.  On 7 February 2008, a PEB convened and considered his disability of C5-6 disc bulge without motor neurologic deficit despite electrodiagnostic findings (in September 2005) of C5-6 radiculopathy.  The board noted that the pain prevented him from wearing Kevlar.  The examination showed tenderness with spasm or guarding.  The PEB stated that upon repeated range of motion testing, the applicant's forward flexion remained in the 20 degree range.  There was no evidence of additional limitation from pain, fatigue, weakness, or lack of endurance following repetitive use.  He was recommended for a disability rating of 20 percent (%).  Additionally, the PEB considered his bilateral grad IV 

chondromalacia (breakdown and softening of the cartilage underneath the knee cap) which interfered with his ability to perform basic Soldier functions.  He was recommended for a disability rating of 10% with a combined rating of 30%.

5.  Orders D129-06, dated 8 May 2008, shows that effective 12 June 2008, he was released from duty because of physical disability and he was placed on the Temporary Disability Retired List (TDRL).  He received a 30% disability rating.

6.  Orders D004-27, issued by the USAPDA, dated 4 January 2010, removed the applicant from the TDRL and permanently retired him effect the same date.  These orders indicate his disability was not based on injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a war period as defined by law.  It also indicates his disability did not result from a combat-related injury.

7.  He provides his VA Rating Decision document, dated 12 May 2010, that shows the VA determined his service-connected conditions of right and left carpal tunnel syndrome had worsened and he was now granted an increase from 10% to 30% and 20%, respectively.  Additionally, he was assigned a disability rating of 10% each for lumbosacral strain with degenerative spondylotic changes of the lumbosacral spine, patellofemoral dysfunction with grade IV chondromalacia patella, left knee and patellofemoral dysfunction with grade IV chondromalacia patella, right knee, and gastritis.  He received a total combined disability rating of 80%.

8.  On 27 December 2010, the CRSC Branch of HRC reconsidered the applicant's claim for the final time and determined that his condition was not combat-related and denied his request for CRSC.

9.  CRSC, as established by Title 10, U.S. Code, Section 1413a, as amended, states that eligible members are retired veterans with combat-related injuries who meet all of the following criteria:

* Active, Reserve or National Guard with 20 years of creditable service, or permanent medical retiree, or Temporary Early Retirement Authority (TERA) retiree
* receiving military retired pay
* have a 10% or greater VA rated injury
* military retired pay is reduced by VA disability payments (VA Waiver)
* 
an individual must be able to provide documentary evidence that their injury was a result of one of the following:

* training that simulates war (e.g. exercises, field training)
* hazardous duty (e.g. flight, diving, parachute duty)
* an instrumentality of war (e.g. combat vehicles, weapons, Agent Orange)
* armed conflict (e.g. gunshot wounds (Purple Heart), punji stick injuries)

10.  The Under Secretary of Defense, Military Personnel Policy has provided policy guidance on the processing of CRSC appeals.  In that guidance it was stated 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant maintains he suffers from a neck, back, and hand injury incurred during simulated war training.  

2.  The evidence provided shows he received a 30% combined disability rating and he was placed on the TDRL and subsequently permanently retired for C5-6 disc bulge and chondromalacia.  Additionally, he received a combined 80% service-connected disability rating from VA.  However, the available evidence does not show that his medical conditions were the result of combat-related events.

3.  As stated above, the CRSC criteria are 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.  The applicant has failed to provide documentation to show he meets any of these requirements.

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 an insufficient basis in which to grant his request.

5.  In view of the foregoing, 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)                                         AR20110005437



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ABCMR Record of Proceedings (cont)                                         AR20110005437



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