IN THE CASE OF:	  

		BOARD DATE:	  16 February 2012

		DOCKET NUMBER:  AR20110013908 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of a previous application requesting approval of a claim for Combat-Related Special Compensation (CRSC).

2.  Counsel states the applicant contended he suffered a combat-related disability that is compensable under the Department of Veterans Affairs (VA).  His injury was incurred through an instrumentality of war pursuant to Title 10, U.S. Code, Section 1413a.  

3.  Counsel also states that the applicant respectfully disagrees with the Board’s conclusion that the trailer which injured his foot was not designed primarily for military service, and in no way subjected the applicant to a hazard peculiar to military service. 

4.  Counsel adds that a close comparison between the ammunition trailer which injured the applicant’s foot and the other M332 (Ammunition Trailer) show they are the same make and model.  The M332 in the picture with the applicant is clearly being used by the military to carry ammunition. 

5.  Counsel argues the trailer which fell on the applicant’s foot was the M332 and clearly qualifies as an instrumentality of war.  As such, the applicant need only show a direct casual relationship between the instrumentality and the disability. 
6.  Counsel provides several diagrams of an M332 Ammunition Trailer. 

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100026619, on 7 June 2011.

2.  Counsel provides diagrams of an M332 Ammunition Trailer which were not considered in the applicant's previous request. 

3.  The applicant's records show he was inducted in the Army on 15 May 1969.  After the completion of training, he served in military occupational specialty (MOS) 11C (Indirect Fire Infantryman).

4.  Item 38 (Record of Assignments) of his DA Form 20 (Enlisted Qualification Record) shows he served in Vietnam with I Troop, 3d Squadron, 11th Armored Cavalry Regiment (ACR), from 7 November 1969 through 18 October 1970, as a Mortar Crewman and a Senior Scout Observer. 

5.  A DA Form 8-275-3 (Clinical Record Cover Sheet) shows he sustained a laceration to the great left toe, on 6 February 1970, when a trailer fell on his foot.  This form does not show the trailer was filled with ammunition or was in use while the applicant was subjected to hazardous service or a result of war.  

6.  On 30 September 1994, he was granted a voluntary early retirement after completing over 17 years total active service. 

7.  A letter from the U.S. Army Human Resources Command (HRC), CRSC Branch, dated 14 May 2009 shows the applicant was awarded a 10% disability rating from the VA for bursitis in his right hip and he requested compensation under CRSC; however, his request was denied due to lack of evidence to show that a combat-related event caused the condition.  

8.  He submitted two additional claims for award of CRSC for his right hip and he added the scars to his great left toe for which he was awarded a 10% disability rating from the VA.  On 9 November 2009 and 22 June 2010, the HRC, CRSC Branch, concluded that there was no evidence to show that a combat-related event contributed to either one of his injuries.  

9.  In a sworn statement, the applicant describes the events which led to his injury.  He stated that his unit was engaged in a firefight with the enemy in February 1970, and he and several other Soldiers were instructed to move the ammunition trailer out of harm’s way.  In the process of moving the trailer, it slipped out of their hands, tipped forward, and fell on his great left toe.  He was transported to the 93rd General Hospital in Vietnam.
 
10.  Counsel provided diagrams of an M332 Ammunition Trailer from “Spunky’s Motor Pool Company” website.  These diagrams show a picture of a trailer from various angles and describe this piece of equipment as a One and a Half Ton Ammunition Trailer used by the U.S. Army to transport ammunition and general cargo.  

11.  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 retiree
* receiving military retired pay
* have 10 percent or greater VA-rated injury
* military retired pay is reduced by VA disability payments (VA Waiver)

12.  The military retiree 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)

13.  The amendment also states the basis for determination of whether a disability is combat related will be based on the preponderance of available documentary information where quality of information is more important than quantity.  All relevant documentary information is to be weighed in relation to known facts and circumstances, and determinations will be made on the basis of credible, objective documentary information in the records as distinguished from personal opinion, speculation, or conjecture. 

14.  There must be a direct causal relationship between the instrumentality of war and the disability.  The disability must be incurred incident to a hazard or risk of the service.  An instrumentality of war is a vehicle, vessel, or device designed primarily for Military Service and intended for use in such Service at the time of the occurrence or injury.  It may also include such instrumentalities not designed primarily for Military Service if use of or occurrence involving such instrumentality subjects the individual to a hazard peculiar to Military Service.  Such use or occurrence differs from the use or occurrence under similar circumstances in civilian pursuits. 

15.  A determination that a disability is the result of an instrumentality of war may be made if the disability was incurred in any period of service as a result of such diverse causes as wounds caused by a military weapon, accidents involving a military combat vehicle, injury or sickness caused by fumes, gases, or explosion of military ordnance, vehicles, or material. 

16.  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.

DISCUSSION AND CONCLUSIONS:

1.  Counsel contends that the applicant should be awarded CRSC based on evidence that the ammunition trailer which fell on the applicant’s foot was in fact, an instrument of war.  

2.  His record shows he was treated for injuries sustained to his left great toe due to an ammunition trailer falling on it.  The evidence provided shows the trailer which fell on the applicant’s foot was the same type or closely resembled the trailer used by the U.S. Army to transport ammunition.  This portion of counsel’s argument is not in question.

3.  However, what is lacking in this case is the evidence that the CRSC criteria, specifically that it is for those military retirees who have combat-related disabilities, have been met.  Incurring disabilities while in a theater of operations or in training exercises are not, in and of themselves, sufficient to grant a military retiree CRSC.  

4.  The DA Form 8-275-3 shows he suffered a laceration to his great left toe when a trailer fell on his foot.  The applicant contends his unit was engaged in a firefight at the time the trailer fell on his foot.  He also states he and several other Soldiers were instructed to move the trailer out of harm’s way because it was carrying ammunition at the time.  

5.  He has not provided conclusive evidence that shows the trailer was in use as an instrument of war at the time it fell on his foot.  His statement alone is not sufficient evidence to conclude that the trailer shown in the photograph was the actual trailer being used as an instrument of war, or that relocating the trailer to another area subjected the applicant to a hazard peculiar to military service.  

6.  It is reasonable to presume that the trailer, in any civilian setting, whether transporting ammunition or general cargo, if relocated from one location to another had fallen on his foot would have caused the same type of injury he sustained in Vietnam.  There is no evidence and he has not provided sufficient evidence to show that the disability was incurred incident to a hazard or risk of the service.  

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 to amend the decision of the ABCMR set forth in Docket Number AR20100026619, dated 7 June 2011.




      _______ _   _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)                                         AR20110013908





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ABCMR Record of Proceedings (cont)                                         AR20110013908



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