IN THE CASE OF:	  

		BOARD DATE:	  29 September 2011

		DOCKET NUMBER:  AR20110014985 


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, in effect, award of Combat-Related Special Compensation (CRSC) for diseases and disabilities incurred during his service in Iraq and Afghanistan.

2.  He states:

* he has been applying for CRSC since his discharge
* he is being told that his denial is due to his medical evaluation board (MEB) proceedings not stating that his condition was combat-related
* he has all the paperwork proving that he was in combat when his conditions manifested 
* he was in the Army for 8 years, deployed six times, and had one training deployment
* his MEB separation paper is wrong and should be corrected to state that all of his conditions are combat-related

3.  He provides:

* Orders Number 052-035, dated 21 February 2008
* Air Force (AF) Form 3899 (Aeromedical Evacuation Patient Record), dated 22 February 2008
* AF Form IMT 3899 (Patient Movement Record), dated 22 February 2008


CONSIDERATION OF EVIDENCE:

1.  The applicant is a retired Regular Army sergeant (SGT) who enlisted in the Regular Army on 8 August 2002.

2.  He requested that the ABCMR reconsider his previous application to this Board and change his narrative reason for his separation from temporary to permanent retirement but as explained in the response to his previous request in AR2009008985, the ABCMR is not the purview for this action.  As a result, this issue will not be discussed any further in this Record of Proceedings.  

3.  He was honorably retired on 21 April 2009 and placed on the Temporary Disability Retired List in the rank/grade of SGT/E-5 on 21 April 2009.  His DD Form 214 (Report of Separation from Active Duty) shows he completed 6 years, 8 months, and 14 days of creditable active service.

4.  He submitted Orders Number 052-035, issued by the Landstuhl Regional Medical Center, dated 21 February 2008, which show he was ordered to report to the Warrior Transition Unit, Fort, Stewart, GA to receive further medical care while deployed in support of Operation Iraq/Enduring Freedom.

5.  He submitted an AF Form 3899, dated 22 February 2008, which shows he was diagnosed with left cranial nerve six palsy, which is a disorder associated with the dysfunction of cranial nerve six, which is responsible for a paralysis that results in the inability of the eyes to look to the right.  The examining physician suspected this condition was caused by an infection.

6.  He submitted an AF Form IMT 3899, dated 22 February 2008, which shows he was diagnosed with mysasitenia gravis, which is an autoimmune disease that causes muscle weakness.

7.  His record contains:

	a.  a memorandum from D Company, 3rd Battalion, 160th Special Operations Aviation Regiment, Subject:  MEB, dated 29 April 2008, which shows he was referred to a MEB for myasthenia gravis.  The Senior Flight Surgeon states that the applicant had a 4-year history of symptoms, that myasthenia gravis is a progressive lifelong debilitating illness that is not compatible with active duty service, and referred him to the MEB, in accordance with Army Regulation 
40-501, chapter 3-30c.

   b.  A copy of his physical evaluation board (PEB) proceedings, dated 5 January 2009, which show that his mood disorder, fatigue, dysphasia, and dysarthria were due to his myasthenia gravis, which is an autoimmune disease that caused muscle weakness.  He concurred with the findings and waived a formal hearing.

   c.  A Physical Disability Information Report, dated 26 January 2009, which shows that:
   
		(1)  his disability did not result from a combat related injury; and 

		(2)  his disability was not incurred in a combat zone nor was it incurred during the performance of duty in combat-related operations.

   d.  Orders Number 035-0012, Headquarters, 3rd Infantry Division and Fort Stewart, dated 4 February 2009, which show that:

		(1) he was released from assignment and duty because of physical disability incurred while entitled to active duty pay and under conditions that permitted his placement on the retired list;

		(2)  the effective date of his retirement was 21 April 2009;

		(3) the percentage of his disability was 80; 

		(4)  his disability was not based on injury or disease received in the line of duty as a direct result of armed conflict, nor caused by an instrumentality of war, or incurred in the line of duty during a period of war as defined by law; and 

		(5)  his disability did not result from a combat-related injury as defined in Title 26, U.S. Code, section 104.

8.  On 4 August 2009, 17 December 2009, and 25 March 2010, the CRSC Branch determined the applicant's chronic fatigue syndrome, glaucoma, lumbosacral or cervical strain, major depressive disorder, paralysis of tenth cranial nerve vagus, stricture of his esophagus, and tinnitus were not combat-related and denied his request for CRSC.

9.  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 Department of Veterans Affairs (VA) rated injury
* military retired pay is reduced by VA disability payments (VA Waiver)

and who are 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)

10.  The Under Secretary of Defense for Military Personnel Policy provided policy guidance on the processing of CRSC appeals.  In 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.  The applicant submitted documentation showing he was treated for disabilities and illnesses that he contends are combat-related.  The evidence of record shows he has service-connected conditions.  However, the available evidence clearly state that his medical conditions were not the the result of combat-related events.

2.  As stated above, 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.  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.  The applicant failed to provide documentation to show he meets this requirement.

3.  Without evidence to establish a direct, causal relationship to the applicant’s disabilities to war or the simulation of war, there is an insufficient evidentiary basis to warrant relief in this case.


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)                                         AR20110014985



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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