BOARD DATE:	  15 December 2011

		DOCKET NUMBER:  AR20110009354 


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 the following two medical conditions as combat related:

* ischemic heart disease
* tinea cruris (a fungal infection in the groin area)

2.  The applicant states the Department of Veterans Affairs (VA) determined these medical conditions occurred during peacetime.  He contends he served in combat in Vietnam.

3.  The applicant provides a copy of his VA Rating Decision, dated 30 March 2011.

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 from the Regular Army in the rank/pay grade of sergeant major (SGM)/E-9.

3.  Records show the applicant served in the Republic of Vietnam (RVN) during the following periods:

* 28 April 1967 to 27 April 1968 (12 months)
* 2 November 1970 to 23 July 1971 (9 months)

4.  General Orders Number 960, 173rd Airborne Brigade, dated 24 April 1971, awarded the applicant the Purple Heart for wounds he received in action in the RVN on 24 November 1967.

5.  The applicant's DD Form 214 (Certificate or Release or Discharge from Active Duty) for the period ending 31 October 1985 reports he was retired due to length of service.  He completed 30 years and 28 days of creditable active duty service.

6.  The VA Rating Decision, dated 30 March 2011, states the applicant was granted a disability rating of 100 percent effective 1 October 2009.

	a.  The decision further stated the following medical conditions warranted presumptive service connection based on the association between exposures to herbicides used in the RVN and the subsequent development of these conditions:

* ischemic heart disease
* Parkinson's disease
* hairy cell leukemia
* other chronic B-cell leukemia

	b.  The rating decision further indicated the applicant's ischemic heart disease, rated as 100-percent disabling, was related to exposure to Agent Orange and the Vietnam Era.

	c.  The rating decision also indicated the applicant's tinea cruris was peacetime, service connected, and rated at 0-percent disabling.

7.  In a Combat-Related Special Compensation (CRSC) Decision Letter, dated 25 July 2011, the applicant was approved for CRSC.  Among his medical conditions verified as combat related was his ischemic heart disease with a 
100-percent disability rating justified on the basis of an Agent Orange presumptive.  His tinea cruris medical condition is not discussed in the CRSC letter, indicating this medical condition was not a part of the request.

8.  The applicant's service medical records are not available for review.

9.  The Under Secretary of Defense for Military Personnel Policy provided policy guidance for processing 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.

10.  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 were awarded the Purple Heart and were rated at least 10-percent disabled or who were 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.

	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 the following two medical conditions as combat related:



* ischemic heart disease
* tinea cruris

2.  The available evidence clearly shows the applicant applied for CRSC and was approved based in part on his ischemic heart disease.  If the VA  has determined this condition occurred during peacetime, this Board has no jurisdiction over how the VA makes its determinations.  

3.  The evidence further shows his tinea cruris was not found to be combat related.  While he may have incurred this condition in the hot and humid climate of Vietnam, there is no evidence to show it was incurred while he was engaged in combat, while performing duties simulating combat conditions, or while performing specially hazardous duties such as parachuting or scuba diving.

4.  The CRSC criteria is specifically for those retirees who have combat-related disabilities.  Incurring disabilities while in a theater of operations is not, in and of itself, sufficient to grant a military retiree CRSC.

5.  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 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)                                         AR20110009354



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ABCMR Record of Proceedings (cont)                                         AR20110009354



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