IN THE CASE OF:	  

		BOARD DATE:	  5 April 2012

		DOCKET NUMBER:  AR20110019833 


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 that his records be corrected to show he is entitled to Combat Related Special Compensation (CRSC) with a 30 percent disability rating.

2.  The applicant states he was put out of the Army with a 30 percent disability rating but he is only being paid for a rating of 20 percent.

3.  The applicant provides copies of:

* four pages related to a 21 March 1991 Medical Evaluation Board (MEB)
* six pages related to the CRSC Branch
* five Department of Veterans Affairs (VA) documents 

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.  With 7 years, 10 months, and 27 days of prior enlisted active service, the applicant reentered the Regular Army on 15 June 1977.

3.  On 21 May 1991, the applicant was afforded an MEB which found he was suffering from diabetes, borderline hypertension, and hypercholesterolemia.  The recommendation was that his case be referred to a Physical Evaluation Board (PEB).

4.  No record of a PEB is available for review.

5.  On 30 April 1992, the applicant was retired for length of service after completing over 22 years of active service.  He was placed on the Retired List, effective 1 May 1992.

6.  On 30 October 1992, the VA granted him a combined disability rating of 30 percent.  He was granted a 20 percent disability rating for diabetes, 10 percent disability rating for hypertension and a rating of zero percent for loss of motion in his little finger.

7.  On 11 November 2008, the US Army Human Resource Command, Alexandria, VA granted the applicant CRSC with a 20 percent disability rating for his diabetes based on an Agent Orange exposure presumption.  His hypertension was determined to have not been incurred as a result of a combat-related event. 

8.  CRSC provides military retirees monthly compensation that replaces their VA disability offset.  The 2008 National Defense Authorization Act expanded CRSC eligibility to include Chapter 61 medical retirees with a 30 percent or greater disability rating.  Qualified military retirees must be an active duty or Reserve retiree with 20 or more years of creditable service or a Title 10 USC Chapter 61 medical retiree; be receiving military retired pay; have a 10 percent or greater VA rating for a combat-related injury; and have their military retired pay reduced by receipt of or entitlement to VA disability payments.  For the purpose of this section combat-related includes an injury that 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)

9.  Army Regulation 15–185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant underwent an MEB prior to retirement and it appears he was referred to a PEB.  However, the available evidence does not show that a PEB was completed or if so what the results were. 

2.  On 30 April 1992, the applicant elected to retire due to length of service, completion of over 22 years of active service, not due to a physical disability.  

3.  He received a VA rating of 20 percent for diabetes and he was awarded CRSC with a 20 percent disability rating based on an Agent Orange exposure presumption.  

4.  The record does not contain and the applicant has not provided any evidence to show that his diabetes is in excess of the current 20 percent disability rating for which he has been awarded CRSC.

5.  CRSC is granted only for conditions that are incurred as the result of 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), or armed conflict (e.g., gunshot wounds, punji stick injuries).  The applicant has not provided any evidence to show that his hypertension was the direct result of any of the above situations; therefore, it cannot be considered a combat-related condition.  

6.  Therefore; there is insufficient evidence to show an error or injustice in the record; therefore, no relief is warranted.









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)                                         AR20110019833



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110019833



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1