IN THE CASE OF:	  

		BOARD DATE:  18 January 2012

		DOCKET NUMBER:  AR20110013277 


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 that his military records be corrected to reflect limitations connected with his knee surgery and rehabilitation in 1967 and 1968 so as to qualify him for Combat Related Special Compensation (CRSC).

2.  The applicant states that in 1967 he was a rated Army aviator serving in the rank of first lieutenant (1LT) and suffered an aircraft accident which required left knee surgery and rehabilitation.  He later served in Vietnam and flew approximately 1100 combat hours.  He goes on to state that he was honorably discharged in 1970 and realized that he would not be able to function competitively as an artillery officer with a weakened knee and would limit his career as a combat officer so he attended law school and re-entered the Army as a Judge Advocate General Corps (JAGC) officer because he wanted to serve his country.  He continues by stating that he suppressed his limitations during his exit physical in 1970 and entry physical in 1973 and served without complaint until his retirement; however, his knee surgery has been a lifelong limitation for him since his first surgery in 1960 and second surgery while on active duty in 1967.  He also states that his limitations have manifested in later years and has been borne out with a Department of Veterans Affairs (VA) determination of 10% disability for residual of left knee surgery to include surgical scar and osteoarthritis.  However, he has been denied CRSC and desires his records to be corrected so as to qualify for CRSC.

3.  The applicant provides a copy of his CRSC denial, copies of his medical records showing his injury, and a copy of his VA Rating Decision.

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 was inducted on 6 August 1965 and at the time of induction his induction record reflected the entry “Physical Defect – Knee Operation with continuous trouble”.  He completed his basic training at Fort Knox, Kentucky and his advanced individual training (AIT) at Fort Sill, Oklahoma.

3.  Upon completion of his AIT he remained at Fort Sill to undergo Field Artillery Officer Candidate School (OCS).  He completed OCS and was honorably discharged on 26 September 1966 to accept a commission. 

4.  On 27 September 1966 he was commissioned as a United States Army Reserve Artillery second lieutenant with a concurrent call to active duty.  He was transferred to Fort Rucker, Alabama where he completed rotary wing aviator training and was then transferred to Vietnam on 13 October 1968, where he served for 1 year before being transferred to Fort Rucker for duty as an instructor. 

5.  On 19 September 1970 he was honorably released from active duty (REFRAD) in the rank of captain based on his voluntary request.  He had served 5 years, 1 month and 14 days of active service. 

6.  On 5 August 1973 he was ordered to extended active duty as a JAG Corps captain.  He was promoted to the rank of major on 1 September 1979 and in 1984, while assigned to Hawaii, he completed the Air Assault Course.  He was promoted to the rank of lieutenant colonel (LTC) on 16 October 1985.

7.  On 31 October 1990 he was honorably released from active duty (REFRAD) in the rank of LTC and was transferred to the Retired List effective 1 November 1990.  He had served over 22 years of active service.

8.  A review of the medical records provided by the applicant indicates that on 9 October 1967 at Fort Rucker, Alabama, the applicant was pre-flighting a UH-1 Huey helicopter when his knee twisted and locked.  On 31 October 1967 he had an arthrotomy with an incomplete tear of the left medial semilunar cartilage.  In March 1968 it was recommended that he be returned to flight status.

9.  A review of the applicant’s Official Military Personnel File (OMPF) failed to show any indication that the applicant had any physical limitations or that he was unable to perform his duties.

10.  On 13 January 2011 the VA granted the applicant a combined 50% disability rating of which 10% was for residuals of left knee surgery to include surgical scar and osteoarthritis.

11.  On 16 May 2011 the Human Resources Command – Alexandria (HRC-ALEX) granted the applicant 40% CRSC for Post-Traumatic Stress Disorder (PTSD) and Tinnitus.  On 14 June 2011 the HRC-ALEX denied his request for additional CRSC for right knee strain and left knee surgery.  The applicant was at that time advised to apply to this Board if he did not agree with the decision.  The HRC-ALEX opined that his knee condition was not combat incurred/related.

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 have 20 years of service for retired pay computation and who have 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 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's contention that his records should be corrected to reflect limitations he experienced as a result of his medical condition has been carefully considered.  However, the evidence fails to show that he experienced any limitations and he has not suggested any that may have existed.  His condition appears to be properly documented and clearly shows that he had knee surgery before his induction and in 1967; however, there is no visible evidence that indicates his injury was the result of simulation of war or combat related action.  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.  Therefore, in the absence of evidence to show that his injury was the result of simulation of war or combat related action, there appears to be no basis 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)                                         AR20110013277





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110013277



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1