IN THE CASE OF:	 

		BOARD DATE:	  24 January 2012

		DOCKET NUMBER:  AR20110013079 


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 records to show all of his disabilities were combat-related so as to qualify for Combat-Related Special Compensation (CRSC).

2.  The applicant states all of his injuries were incurred in the field or aggravated by his long hours in the field in live-fire exercises keeping his fellow troops rolling and firing himself on occasion as a howitzer mechanic.  He goes on to state he has awards and letters in his favor and he was also a no-show at Wurzburg Army Hospital for follow-up after surgery because he was in the field.  Therefore, since most of his time was spent in the field his injuries should be deemed combat-related.

3.  The applicant provides a copy of:

* his CRSC claim denial
* medical consultation sheets
* his diploma for his completion of the self-propelled field artillery mechanic course
* awards and certificates of achievement
* his Department of Veterans Affairs (VA) Rating Decision
* his retirement orders


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.  The applicant enlisted in the Regular Army on 6 January 1984 for a period of 4 years, training as a self-propelled field artillery mechanic, assignment to Europe, and a cash enlistment bonus.  He completed his one-station unit training (OSUT) at Fort Knox, KY and he was transferred to Germany on 24 May 1984.

3.  On 8 February 1985, the applicant was treated for left knee pain incurred during a skiing accident.

4.  He was advanced to the pay grade of E-4 on 1 April 1986 and on 14 May 1986 he departed Germany for assignment back to Fort Knox.

5.  In March 1987, he was again treated for re-injury of the left knee while on field duty at Fort Bliss, TX.

6.  On 23 November 1987, a Medical Evaluation Board (MEB) conducted at Ireland Army Hospital, Fort Knox diagnosed the applicant as having an anterior cruciate deficient left knee with anterolateral rotator instability, status post-knee reconstruction (1985) and tear of the posterolateral meniscus, status post-subtotal meniscectomy.  He was deemed unfit for duty and the MEB recommended his referral to a Physical Evaluation Board (PEB).

7.  On 1 December 1987, a PEB convened at Fort Sam Houston, TX and determined the applicant’s condition was not sufficiently stable for final adjudication.  Therefore, the PEB recommended the applicant be placed on the Temporary Disability Retired List (TDRL) with a 30 percent (%) disability rating percentage.  He was retired on 26 January 1988 and placed on the TDRL.

8.  On 23 June 1989, a PEB convened in San Francisco, CA and determined the applicant should be permanently retired with a 30% disability rating.  The applicant concurred with the PEB's findings and recommendation and he waived a formal hearing of his case.

9.  Accordingly, he was removed from the TDRL on 20 July 1989 and he was permanently retired on 21 July 1989 with a 30% disability rating.  He had 4 years, 10 months, and 6 days of active service for pay purposes.

10.  On 12 January 1998 the applicant was granted a 70% disability compensation by the VA, with pay at 100% due to unemployability.

11.  On 19 April 2011, the U.S. Army Human Resources Command (HRC), Fort Knox denied the applicant’s request for CRSC due to a lack of evidence to show his injuries were related to a combat-related event.  It was the final denial of his claim and he was advised to apply to this Board.

12.  The Under Secretary of Defense for 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.

13.  Title 10, U.S. Code, section 1413a (CRSC) provides that eligible members are those retirees who are entitled to retired pay and have combat-related disability (disabilities that are the direct result of armed conflict, specially hazardous military duty, training exercises that simulate war, or caused by an instrumentality of war).  Such disabilities must be compensated by the DVA and rated at least 10% disabling.  For periods before 1 January 2004, members had to have disabilities for which they were 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 cause by an instrumentality of war.
 
DISCUSSION AND CONCLUSIONS:

1.  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.  In order to qualify for CRSC, the military retiree must show 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's supporting documents and contention that his conditions should be deemed as combat-related so as to qualify for CRSC have been carefully considered.  However, there is insufficient evidence to show his injury was the result of simulation of war or combat-related actions.  Without evidence to establish a direct, causal relationship to the applicant’s disability to war or the simulation of war, there is insufficient basis in which to grant his request.

3.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X___  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1. 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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States.  The applicant and all Americans should be justifiably proud of his service in arms.



      _______ _   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)                                         AR20110013079



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ABCMR Record of Proceedings (cont)                                         AR20110013079



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