IN THE CASE OF:	  

		BOARD DATE:	    17 May 2012

		DOCKET NUMBER:  AR20110019501 


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 he be granted Combat-Related Special Compensation (CRSC). 

2.  The applicant states:

* He disagrees with the CRSC determination that his disability is not combat-related
* The Physical Evaluation Board (PEB) proceedings that placed him on the Temporary Disability Retired List (TDRL) and his final PEB show he was granted permanent disability retirement
* His PEB clearly states in item 10d that his disability was incurred in a combat zone (Iraq) or incurred during the performance of duty in combat-related operations (Iraq)
* Department of Veterans Affairs (VA) documentation specifies that his conditions were Gulf War incurred
 
3.  The applicant provides:

* DVA documentation
* DD Forms 214 (Certificate of Release or Discharge from Active Duty) for the periods ending 14 April 2007 and 15 July 2008
* Amended orders, dated 3 November 2010
* Retirement orders
* PEB proceedings
* CRSC letters, dated 8 December 2010 and 1 June 2011
* TDRL medical records
* Psychiatric medical records 

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 U.S. Army Reserve on 25 September 1981.  

3.  He received his notification of eligibility for retired pay at age 60 (20-year letter) on 24 October 2001.

4.  He was ordered to active duty on 19 January 2006 in support of Operation Iraqi Freedom.  He served in Kuwait/Iraq from 15 March 2006 to 7 March 2007, and he was released from active duty on 14 April 2007.

5.  His Medical Board proceedings are not available.  

6.  On 31 March 2008, a PEB found the applicant physically unfit due to:

* Left shoulder pain, status post left shoulder injury [while] pulling and lifting [a] spare tire off [a] military vehicle
* Low back pain, status post falling while getting into a truck
* Anxiety disorder, not otherwise specified, requiring psychotropic medication and outpatient treatment

7.  The DA Form 199 (PEB Proceedings) shows in section 8b (Disability Description), item 10D "Yes,"  "Disability was incurred in a combat zone (Iraq) or incurred during the performance of duty in combat-related operations as designated by the Secretary of Defense (10 U.S. Code 1212 – NDAA (National Defense Authorization Act) 2008 Section 1646)."


8.  The PEB found that:

	a.  The applicant’s retirement is not based on disability from injury or disease received in the line of duty (LOD) as a direct result of armed conflict or caused by an instrumentality of war and incurring in LOD during a period of war as defined by law.
   
   b.  The disability did not result from a combat-related injury as defined in 
26 U.S.C. 104.

9.  The PEB recommended a combined disability rating of 40% and placement on the TDRL.  On 8 April 2008, the applicant concurred with the findings and recommendation.  

10.  On 15 July 2008, he was retired and placed on the TDRL the following day.

11.  His retirement orders, dated 21 May 2008, state "Disability is based on injury or disease received in LOD as a direct Result of Armed Conflict or caused by an instrumentality of war and incurred in the LOD during a war period as defined by law:  No"

12.  His 21 May 2008 retirement orders were amended on 3 November 2010 to read "DISABILITY IS BASED ON INJURY OR DISEASE RECEIVED IN LOD AS A DIRECT RESULT OF ARMED CONFLICT OR CAUSE [sic] BY AN ISNTRUMENTALITY [sic] OF WAR AND INCURRED IN THE LOD DURING A WAR PERIOD AS DEFINED BY LAW:  YES."

13.  On 26 April 2010, he was removed from the TDRL due to a permanent physical disability with a disability rating of 80%.

14.  On an unknown date, the VA granted the applicant service-connected disability compensation for:

* Moderately obstructive sleep apnea (50%)
* Anxiety disorder, not otherwise specified, with symptoms of Post Traumatic Stress Disorder (30%)
* Cervical intervertebral disc desiccation claimed as neck pain (20%)
* Left shoulder slap lesion, status post surgical repair, acromioplasty, chondromalacia, at glenoid and humeral, shoulder strain, degenerative joint disease (10%)
* Bulging disc L4-L5, L5-S1; lumbar strain claimed as low back pain (10%)
* Right hand carpal tunnel syndrome (10%)
* Gastritis (0%)
* Tinea corporis claimed as skin fungus (0%) 

15.  On 1 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.  

16.  During the processing of this case, on 13 February 2012, an advisory opinion was obtained from the U.S. Army Physical Disability Agency (USAPDA), which states, in summary:

   a.  The applicant's unfitting conditions of left shoulder pain, low back pain, and anxiety disorder were all found by the PEB to have been incurred while in Iraq, a combat zone.

   b.  The PEB specifically found that none of these conditions were the direct result of armed combat, an instrumentality of war, or combat-related.

   c.  Even though the combat zone designation (item 10d of his DA Form 199) is only applicable when a Soldier is separated with severance pay (and the applicant was initially placed on the TDRL and later removed with permanent disability retirement) the conditions were noted to have been incurred in a combat zone because he might have been removed from the TDRL with severance pay.

   d.  Since severance pay was never awarded the item 10d designation was never used.

   e.  Although not within the USAPDA's jurisdiction, based on the USAPDA's disability findings it does not appear to the USAPDA the applicant's unfitting conditions would meet the criteria for CRSC.

17.  The advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond.

18.  CRSC, as established by Section 1413a, Title 10, U.S. Code, 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, specialty 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.  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.  The applicant disagrees with the CSRC determination that his disability was not combat-related.

2.  Although his 2008 retirement orders were amended to read "DISABILITY IS BASED ON INJURY OR DISEASE RECEIVED IN LOD AS A DIRECT RESULT OF ARMED CONFLICT OR CAUSE [sic] BY AN ISNTRUMENTALITY [sic] OF WAR AND INCURRED IN THE LOD DURING A WAR PERIOD AS DEFINED BY LAW:  YES," there is no evidence and he provided no evidence which shows why these orders were amended. 

3.  Evidence shows his unfitting conditions of left shoulder pain, low back pain, and anxiety disorder were all found by the PEB to have been incurred while in Iraq; a combat zone.  However, his shoulder injury was incurred while pulling and lifting a spare tire off a military vehicle, and his low back pain was incurred while falling while getting into a truck.  Neither incident was combat related.  There is also no evidence to show is anxiety disorder was combat related.

4.  The CRSC criteria 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 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 specialty hazardous duties.

5.  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.  

6.  Without evidence to establish a direct, causal relationship to his VA rated disabilities to war or the simulation of war, there is 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 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)                                         AR20110019501



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ABCMR Record of Proceedings (cont)                                         AR20110019501



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