IN THE CASE OF:	  

		BOARD DATE:	  17 April 2012

		DOCKET NUMBER:  AR20110019477 


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 Combat-Related Special Compensation (CRSC) for his "s/p lumbar strain" (i.e., a stretching injury to the ligaments, tendons, and/or muscles of the low back).

2.  The applicant states he sustained the s/p lumbar strain while performing training in the U.S. Army and the documents he provides support his claim.

3.  The applicant provides, in support of his request, copies of his separation documents, a "buddy statement, two Army medical records, a neurology consultation, civilian physical therapy records, and Department of Veterans Affairs (VA) and CRSC rating decisions.

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.  A DD Form 214 (Report of Separation from Active Duty) shows the applicant entered active duty in the Regular Army (RA) on 8 August 1975, was honorably released from active duty (REFRAD) on 7 August 1979, and transferred to the U.S. Army Reserve (USAR) Control Group (Standby) to complete his Reserve obligation.  It shows he:

	a.  held military occupational specialty (MOS) 11H (Heavy Anti-Armor Weapons Crewman); 

	b.  served overseas in Korea from 7 January 1976 through 6 February 1977; and

	c.  completed 4 years of active service that included 1 year and 1 month of foreign service.

3.  The applicant enlisted in the USAR on 19 September 1982.

	a.  Two DD Forms 214 show the applicant served on active duty for training (ADT) from 2 February through 3 May 1986 and from 26 August 1986 through
21 February 1987.

	b.  On 19 June 1988, the applicant reenlisted in the USAR for a period of
6 years.  He was ordered to active duty in the Active Guard/Reserve program on 8 September 1991.

4.  He was promoted to staff sergeant (SSG)/pay grade E-6 on 1 August 2000.

5.  A DD Form 214 shows the applicant entered active duty on 8 September 1991, was honorably retired from active duty on 31 July 2006, and transferred to the USAR Control Group (Retired).  He had completed 20 years and 18 days of active service and 30 years, 11 months, and 23 days of service for basic pay.

6.  The applicant's Army medical treatment records are not available for review.

7.  On 30 November 2010, the CRSC Division, U.S. Army Human Resources Command (USA HRC), considered the applicant's claim.

	a.  It verified as combat-related his: 

* Left Ear Hearing Loss (Claimed as Bilateral Hearing Loss) (0%)
* Osteoarthritis and Onychomycosis, Right Foot, as a Residual (30%)
* Tinnitus (10%)

	b.  It also determined that there was no evidence in the claim to show a combat-related event caused his:

* S/P Lumbar Strain (10%)
* Headaches Tension Type (0%)

8.  On 5 January 2011, the CRSC Division, USA HRC, reconsidered the applicant's request for CRSC.

	a.  It verified as combat-related his: 

* Left Ear Hearing Loss (Claimed as Bilateral Hearing Loss) (0%)
* Osteoarthritis and Onychomycosis, Right Foot, as a Residual (30%)
* Tinnitus (10%)

	b.  It determined it was unable to verify as a combat-related disability his Intervertebral Disc Syndrome, S/P Lumbar Strain (10%) because under Department of Defense (DOD) guidance, physical training injuries do not qualify as combat-related.

	c.  It also determined that there was no new evidence in the claim to show a combat-related event caused his Migraine Headaches, Headaches Tension Type (0%).

9.  On 1 March 2011, the CRSC Division, USA HRC, informed the applicant of its final disapproval of his S/P Lumbar Strain and Headaches Tension Type.  It also advised him that his only recourse was to appeal the decision to the ABCMR.

10.  However, on 13 July 2011, the CRSC Division, USA HRC, again reviewed the applicant's claim.

	a.  It verified as combat-related his: 

* Left Ear Hearing Loss (Claimed as Bilateral Hearing Loss) (0%)
* Bilateral Hearing Loss (0%)
* Osteoarthritis and Onychomycosis, Right Foot, as a Residual of cold exposure (30%)
* Tinnitus (10%)


	b.  It also determined that there was no new evidence in the claim to show a combat-related event caused his:

* S/P Lumbar Strain (10%)
* Headaches Tension Type (0%)
* Osteoarthritis and Onychomycosis, Left Foot, as a Residual of cold exposure (30%)

11.  On 24 August 2011, the CRSC Division declined to change his ratings.

12.  In support of his request the applicant provides the following documents:

	a.  A "Buddy Statement from Darcy O----, dated 13 December 2010, that shows he was stationed with the applicant at a camp on the Demilitarized Zone in the Republic of Korea.

	 	(1)  He states (in paragraphs 1 and 2) that the applicant injured his back (s/p lumbar strain) in August 1977.

	 	(2)  Mr. O---- then outlines (in paragraphs 3 through 9) that he (Mr. O----, not the applicant) (emphasis added) injured his back during physical training, he was evaluated at the troop medical clinic, and he has been granted service-connection for s/p lumbar strain by the VA.

	b.  Two Army Medical Records that show:

	 	(1) on 29 June 1995, the applicant was seen for a bump or a mole on his lower back; and

	 	(2)  on 7 June 1998, the applicant complained of back pain (for one day) in his upper right back.

	c.  A Neurology Consultants of Montgomery record, dated 28 April 2009, that shows "(Applicant's) EMG/NCV studies are normal, but I suspect he has a herniated disc at L5-S1 or possible L4-5."  He also indicated he was referring the applicant to a physical therapy program.

	d.  InnerFit Physical Therapy records, for the period 5 May to 24 June 2009, that show the applicant received 12 treatments during the period and responded well to therapy.


	e.  On 10 June 2010, the VA rendered a decision on the applicant's claim.  Effective 5 May 2009, he was awarded a service-connected disability for:

* S/P Lumbar Strain (30%)
* Headaches Tension Type (0%)

13.  CRSC, as established by section 1413a, Title 10, U.S. 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.

16.  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, in effect, that his records should be corrected to show award of CRSC for his s/p lumbar strain.

2.  The applicant's contention was carefully considered.

	a.  There are no contemporaneous medical treatment records that show the applicant sustained an s/p lumbar strain while participating in physical training in Korea during his initial period of active duty.

	b.  The "buddy statement" that the applicant provides as evidence offers a period of time (i.e., August 1977) for the injury, which is six months after the applicant departed Korea.  In addition, the statement was prepared more than
33 years after the applicant served in Korea and actually indicates the applicant's friend suffered an s/p lumbar strain.

	c.  The medical records the applicant provides offer insufficient evidence to support the fact that he sustained an s/p lumbar strain while in Korea.

	d.  In any event, an injury that is sustained during physical training (emphasis added) would not meet the criteria of training that simulates war, hazardous duty, an instrumentality of war or armed conflict.

3.  The evidence of record shows the VA awarded the applicant a rating of 10% service-connected disability (emphasis added) for s/p lumbar strain.

4.  The CRSC Division, USA HRC, denied the applicant's request for CRSC based on s/p lumbar strain because there was no evidence to show that a combat-related event (emphasis added) caused his injury.

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 disability
(i.e., s/p lumbar strain) to war or the simulation of war.

6.  In view of all of the foregoing, there is no basis for granting the 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)                                         AR20110019477



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ABCMR Record of Proceedings (cont)                                         AR20110019477



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