IN THE CASE OF:	  

		BOARD DATE:	  8 March 2012

		DOCKET NUMBER:  AR20110017531 


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 to be granted combat-related special compensation (CRSC).

2.  The applicant states:

	a.  The Army CRSC Branch denied his application for CRSC based on the 30-percent disability he has from the Department of Veterans Affairs (VA) for a fungus infection on his feet and right hand.

	b.  He requests payment of CRSC for this disability because he served in combat in Vietnam and his VA medical record indicates, "The presumption that this condition is related to his time in Vietnam has been established through the VA Compensation and Pension Service endorsed by the Veterans Board of Appeals (VBA)."

3.  The applicant provides:

* CSRC denial letter, dated 8 June 2011
* one page of his DA Form 2-1 (Personnel Qualification Record)
* VA claim excerpt
* VA Medical Record – Progress Notes, dated 23 June 2011
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 18 July 1987



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 16 February 1966.  He was honorably discharged on 16 February 1967 to accept a commission.  He was appointed in the U.S. Army Reserve as a second lieutenant on 17 February 1967 with concurrent call to active duty.  He served in Vietnam from 21 September 1967 to 2 October 1968.  He was honorably released from active duty on 16 February 1969.

3.  He was promoted to colonel in the Army National Guard on 16 August 1988.  He was transferred to the Retired Reserve on 15 September 1996 and he was placed on the Retired List effective 15 March 2007.

4.  There are no medical documents in the available records.

5.  On 17 October 2008, the VA granted him service-connected disability compensation for:

* fungus infection of the hands and feet with onychomycosis (30 percent)
* tinnitus (10 percent)
* bilateral hearing loss (0 percent)
* residuals of kidney infection (0 percent)
* scars – shell fragment wound above left ankle and back of right ring finger (0 percent)

6.  On 8 June 2011, the U.S. Army Human Resources Command CRSC Branch disapproved the applicant's request for reconsideration for CRSC.  He was advised his next recourse was to apply to this Board.



7.  He provides VA Medical Record – Progress Notes, dated 23 June 2011, which state:

* the VA Compensation and Pension Service has "related his eczema and skin conditions to be service connected"
* the time spent in the Vietnamese theater was primarily spent in combat situations
* the nature of eczema or even onychomycosis is impossible to relate to a specific combat event
* the presumption that this condition is related to his service in Vietnam has been established through the VA Compensation and Pension Service and endorsed by the VBA

8.  CRSC, as established by Title 10, U.S. Code, section 1413a, as amended, states that 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-percent 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-percent disabled or who are rated at least 60-percent disabled as a direct result of armed conflict, specially hazardous duty, training exercises that simulate war, or caused by an instrumentality of war.  CRSC benefits are equal to the amount of VA disability compensation offset from retired pay based on those disabilities determined to be combat-related.

DISCUSSION AND CONCLUSIONS:

1.  CRSC 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 CRSC to a military retiree.  The military retiree must show the disability was incurred while engaged in combat, while performing duties simulating combat conditions, or while performing specialty hazardous duties.

2.  The applicant contends he sustained a combat-related fungus infection while serving in Vietnam.  Notwithstanding his contention, there is no evidence in the available record and he has not provided sufficient evidence which shows a medical condition was sustained during combat action or simulation of war.  The VA medical record he provided does not show a combat-related event caused this condition.

3.  Without evidence to establish a direct, causal relationship to his VA-rated disabilities to war or the simulation of war, there is an insufficient basis in which 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 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)                                         AR20110017531



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ABCMR Record of Proceedings (cont)                                         AR20110017531



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