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ARMY | BCMR | CY2011 | 20110013481
Original file (20110013481.txt) Auto-classification: Denied

		IN THE CASE OF:	  

		BOARD DATE:  9 February 2012

		DOCKET NUMBER:  AR20110013481 


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 the following disabilities be determined to be combat related:

* post-traumatic stress disorder (PTSD)
* lower back condition
* migraine headaches

2.  The applicant states he served in Operation Desert Shield/Desert Storm from 22 October 1990 to 25 July 1991.  The Department of Veterans Affairs (VA) awarded him service connection for these disabilities and they are Gulf War incurred.  He feels he should have been awarded Combat-Related Special Compensation (CRSC) based on his service connection for these combat-related injuries.

3.  The applicant provides:

* a letter, dated 10 March 2011, from the CRSC Branch, U.S. Army Human Resources Command (HRC)
* DD Form 2860 (Claim for CRSC), dated 22 June 2011
* a letter, dated 23 August 2010, from the VA Roanoke Regional Office, Roanoke, VA
* VA Rating Decision Review Officer Decision, dated 23 August 2010
* DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 30 June 1997

CONSIDERATION OF EVIDENCE:

1.  He enlisted in the Regular Army on 21 June 1977.  His military occupational specialty was 91D (Operating Room Specialist).

2.  He served in Southwest Asia from 22 October 1990 to 26 July 1991.

3.  He was retired on 30 June 1997, after serving 20 years and 10 days of active service.

4.  The CRSC Branch at HRC denied his claim for CRSC on 5 November 2008, 
8 December 2010, and 10 March 2011 for numerous VA rated disabilities including:

* PTSD
* lower back condition
* migraine headaches

The reason for denial was his failure to show these conditions were caused by a combat-related event.

5.  The VA Decision Review Officer Decision, dated 23 August 2010, listed his disabilities subject to compensation.  The list included:

* PTSD - service connected, Gulf War, incurred - 50 percent 24 November 2008
* Low back strain with degenerative changes, L5-S1 - service connected, Gulf War incurred - 40 percent from 26 February 2009
* Migraine headaches - service connected, Gulf War incurred - 30 percent from 16 June 2004

6.  Combat-Related Special Compensation (CRSC), as established by Section 1413a, Title 10, United States 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, specially 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.

7.  In the processing of similar cases, advisory opinions were obtained from the Office of the Under Secretary of Defense (OUSD), Military Personnel Policy.  The OUSD has maintained in these opinions 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 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 specially hazardous duties such as parachuting or scuba diving.

2.  Title 38, United States Code, provides for the VA to make a determination and award compensation for disabilities which were incurred in or aggravated by active military service.  The VA determines whether or not the injuries were incurred during a period of war or during peace time.  However, the VA does not make any determination as to whether an injury was a result of combat.

3.  There is no evidence, and he has not provided sufficient evidence, to show his disabilities were caused by a combat-related event.

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)                                         AR20110013481



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ABCMR Record of Proceedings (cont)                                         AR20110013481



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