IN THE CASE OF:	  

		BOARD DATE:	  1 March 2012

		DOCKET NUMBER:  AR20110018103 


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 award of Combat-Related Special Compensation (CRSC) for injuries he received to his left shoulder and lower back when a civilian vehicle ran a checkpoint and smashed into his M915A3 military truck on
4 December 2004.

2.  At the time, he was serving in Kuwait.  He saw a civilian vehicle running a checkpoint and didn't know if the vehicle was loaded with explosives.  All he saw was the civilian vehicle running through the Kuwait Police blockade.

3.  The applicant provides:

* DA Form 1156 (Casualty Feeder Report), dated 5 December 2004
* Standard Form (SF) 600 (Chronological Record of Medical Care) dated
* 4 December 2004
* 3rd PERSCOM (Personnel Command) Casualty Report and Accident Report/Serious Incident Report
* Line of Duty (LOD) packet

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 had prior honorable active enlisted service in the U.S. Marine Corps from 1 July 1992 through 30 June 1996.

3.  The applicant enlisted in the Army National Guard of the United States and the Ohio Army National Guard (OHARNG) on 15 January 1998.  He was awarded military occupational specialty (MOS) 88M (Motor Transport Operator).

4.  He was ordered to active duty with his unit on 2 January 2004 in support of Operation Iraqi Freedom (OIF).  He served in Kuwait/Iraq from 18 February 2004 to 27 February 2005.

5.  A DA Form 1156 shows the applicant was "lightly injured not as a result of hostile action" at 1951 hours, 4 December 2004, on Highway 40 in Kuwait.  Sergeant First Class Paul L---- witnessed the incident and he wrote, in part,
"3 Kuwaiti males in civilian vehicle failed to stop at KMOI [Kuwait Ministry of Interior) escort direction and hit M915A3 (Truck 114).  Applicant was AD [active duty].  He was taken to Arifjan TMC (Troop Medical Clinic) for injury to right shoulder."

6.  An SF 600 shows the applicant received medical care at 2230 hours on
4 December 2004.  The attending medical official wrote, in part, "Seat-belted passenger.  Side-swiped by another vehicle.  Patient hit back of left shoulder on dashboard.  Pain in left shoulder, anterior.  Mild low back stiffness, also."

7.  A 3rd PERSOM Casualty Report, dated 5 December 2004, and an Accident Report/Serious Incident Report, dated 4 December 2004, shows the applicant was a passenger in his M915A3 and involved in an accident on 4 December 2004 when a civilian privately owned vehicle (POV) struck the passenger side of the truck.  The identities of the three Kuwaiti civilians were unknown at the time. 


8.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 18 December 2004, shows the applicant was involved in an accident on
4 December 2004 on Highway 40 in Kuwait.  He was admitted for medical treatment at 2000 hours, 4 December 2004

	a.  Item 15 (Details of Accident or History of Disease) shows the attending physician wrote, "Soldier involved in accident.  Hit shoulder on dash and fell on left shoulder.  AC (Acromioclavicular) torn in left shoulder.

	b.  Item 30 (Details of Accident - Remarks) shows "[Applicant] was the passenger in an M915A3 when a civilian POV hit the passenger side of the truck.  The impact of the car slammed [applicant] against the dash and he hit his left shoulder.  When [applicant] was getting out of the truck the fuel tank and steps were gone from the accident.  [Applicant] could not tell that the steps were gone because it was dark and went to step on the steps and he landed on the door with his left shoulder."

	c.  On 18 December 2004, the unit commander considered the applicant's injury to have been incurred in the line of duty.

9.  A DA Form 2823 (Sworn Statement) written by the applicant on 19 December 2004, shows, in part, "on 4 December at or around 0940 hours, a civilian POV at a high rate of speed hit the passenger side of my truck.  The impact slammed me up against the dash hitting my left shoulder.  When I was getting out of the truck, the fuel tank and steps were gone.  Due to it being dark, I stepped out and landed on my left shoulder on the door.  I heard my left shoulder pop, that's when I noticed I could not move my left arm."

	a.  The sworn statement shows the applicant's company commander administered the oath.

	b.  The applicant and a witness each placed their signature on the document.

10.  On 29 January 2005, the LOD was forwarded to the Office of the Adjutant General, OHARNG, for further processing.  A copy of the approving document is not available for review in the applicant's military personnel records.

11.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he entered active duty on 2 January 2004, he was honorably released from active duty (REFRAD) on 8 April 2005 based on completion of 


required active service, and he was transferred to the OHARNG.  He completed 1 year, 3 months, and 7 days of net active service this period.  Item 13 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) does not show the Purple Heart.

12.  On 11 May 2009, a Physical Evaluation Board (PEB) convened at Fort Lewis, WA to consider the applicant's case.  The PEB assigned disability ratings under Veterans Affairs Schedule of Rating Disabilities (VASRD) codes:

* 9411 - Posttraumatic Stress Disorder (PTSD) (50%)
* 5237 - Lumbar strain (10%)
* 5009 and 5003 - Left shoulder pain evaluated as arthritis, degenerative (10%)
* 8045 and 8100 - Post-concussive migraine headaches (0%)

13.  The PEB determined the applicant's functional limitations in maintaining the appropriate level of adaptability and stamina, caused by physical impairment, made him medically unfit to perform the duties required of a Soldier of his rank and MOS.

14.  The PEB concluded the applicant was physically unfit for further service, recommended a combined disability rating of 60% with placement on the Temporary Disability Retired List (TDRL), and reexamination during February 2010.  The proceedings further indicated the applicant's disability did not result from a combat-related injury.

15.  On 14 May 2009, the applicant concurred with the findings and recommendation of the PEB and waived a formal hearing of his case.
The PEB proceedings were approved by proper authority on behalf of the Secretary of the Army on 28 May 2009.

16.  The applicant's National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows he enlisted in the OHARNG on
15 January 1998, he was honorably separated on 2 July 2009, and he was transferred to the U.S. Army Reserve (USAR) Control Group (Retired) for placement on the TDRL.  He completed 17 years, 9 months, and 2 days of total service for pay and 16 years, 9 months, and 2 days of total service for retired pay.  Item 15 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded) does not show the Purple Heart.


17.  The applicant's Department of Veterans Affairs (VA) rating decisions show the VA initially granted him service-connection for the following conditions at the disability percentages indicated:

	a.  effective 9 April 2005:

* PTSD (30%)
* Lumbar strain (10%)
* Residuals, left acromioclavicular joint separation (minor) (10%)

	b.  effective 16 April 2007:

* Asthma (60%)
* Tinnitus (10%)
* Gastoesophageal reflux disease (0%)

	c.  effective 19 December 2007:

* Migraine headache due to Traumatic Brain Injury (TBI) (10%)
* Gastoesophageal reflux disease (10%)

18.  On 10 September 2010, the applicant submitted a request for CRSC based on PTSD, Residuals of left acromioclavicular joint separation (minor), Lumbar strain, Tinnitus, Migraine due to TBI, and Asthma.  On 1 December 2010, the CRSC Branch, U.S. Army Human Resources Command (USAHRC), Fort Knox, KY, considered the applicant's claim and verified that his: 

	a.  PTSD was combat-related.

	b.  Tinnitus was conceded due to combat awards.

	c.  Asthma and Gastroesophageal reflux disease do not meet the criteria for CRSC.

	d.  It also determined that there was no evidence to show a combat-related event caused his Lumbar strain, Migraine headache due to TBI, or Residuals of left acromioclavicular joint separation conditions.

19.  On 26 January 2011, the CRSC Branch, USAHRC, Fort Knox, notified the applicant it had been alerted by the Defense Finance and Accounting Service 


(DFAS) that one or more of his disability codes had been adjusted by the VA.  As a result, the CRSC Branch recertified the applicant's CRSC entitlement and authorized DFAS to reinstate any owed CRSC payments.  It recertified that his:

	a.  PTSD  and Tinnitus (previously awarded as combat-related) were verified.

	b.  Asthma and Gastroesophageal reflux disease do not meet the criteria for CRSC.

	c.  It also verified that there was no new evidence to show a combat-related event caused his (previously considered) Lumbar strain, Migraine headache due to TBI, or Residuals of left acromioclavicular joint separation conditions.

20.  On 7 February 2011, the applicant submitted a request for reconsideration of CRSC based on Residuals of left acromioclavicular joint separation (minor), Lumbar strain, and Migraine due to TBI.  On 7 March 2011, the CRSC Branch, USAHRC, Fort Knox, reconsidered the applicant's claim and determined that his:

	a.  PTSD  and Tinnitus (previously awarded as combat-related) were verified.

	b.  Asthma and Gastroesophageal reflux disease were previously requested; however, they do not meet the criteria for CRSC.

	c.  It also determined there was no new evidence to show a combat-related event caused his (previously considered) Lumbar strain, Migraine headache due to TBI, or Residuals of left acromioclavicular joint separation conditions.

21.  On 31 March 2011, the applicant submitted a request for reconsideration of CRSC based on Residuals of left acromioclavicular joint separation (minor), Lumbar strain, and Migraine due to TBI.  On 21 April 2011, the CRSC Branch, USAHRC, Fort Knox, reconsidered the applicant's claim and determined that his: 

	a.  PTSD and Tinnitus (previously awarded as combat-related) were verified.

	b.  Asthma and Gastroesophageal reflux disease were previously considered, they do not meet the criteria for CRSC in the applicant's case, and the decision was final.

	c.  It also determined there was no new evidence to show a combat-related event caused his (previously considered) Lumbar strain, Migraine headache due to TBI, or Residuals of left acromioclavicular joint separation and that the decision was final.
22.  CRSC, as established by Section 1413a, Title 10, U.S. Code, 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 (TERA) retiree
* receiving military retired pay
* have 10% or greater VA rated injury
* military retired pay is reduced by VA disability payments (VA Waiver)
* an individual 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)

23.  The Under Secretary of Defense, 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.  The applicant contends he should be awarded CRSC for injuries he received to his left shoulder and lower back in Kuwait on 4 December 2004 because the VA has granted him service-connection for his Lumbar strain, Migraine headache due to TBI, and Residuals of left acromioclavicular joint separation conditions.

2.  The applicant submitted evidence to the CRSC Branch, USAHRC, Fort Knox in support of his claim for CRSC on three separate occasions.  In all three instances, his requests to show a combat-related event caused his Lumbar strain, Migraine headache due to TBI, and/or Residuals of left acromioclavicular joint separation conditions were denied.

3.  The evidence of record, including a Casualty Feeder Report, Chronological Record of Medical Care, 3rd PERSOM Casualty Report, Accident Report/ 


Serious Incident Report, and LOD packet all show the applicant was injured in Kuwait on 4 December 2004 as a result of an accident involving a civilian vehicle.

	a.  The Casualty Feeder Report shows the injury was not the result of hostile action.

	b.  The applicant acknowledges in his sworn statement he was injured when he was getting out of his military truck.  Specifically, he states it was dark and the fuel tank and steps were missing from the truck as a result of the vehicle accident.  Consequently, when he stepped out of the truck, he landed on his left shoulder injuring his shoulder and back.

	c.  There is no evidence or indication that his injuries and resultant medical conditions were the result of a combat-related event.

4.  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 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.  The applicant has failed to provide documentation to show he meets any of these requirements.

5.  There is no evidence of record and the applicant did not provide any evidence to establish a direct, causal relationship to the applicant's VA rated disabilities to war or the simulation of war.

6.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20110018103



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ABCMR Record of Proceedings (cont)                                         AR20110018103



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