IN THE CASE OF:	  

		BOARD DATE:  12 April 2012

		DOCKET NUMBER:  AR20110020027 


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 the conditions for which he was discharged be considered combat related or situations simulating combat so that he may be entitled to award of Combat-Related Special Compensation (CRSC).

2.  The applicant states he needs the correction because he is being denied CRSC. 

3.  The applicant provides copies of 77 pages of his service medical records and a CRSC denial letter.

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 3 August 1973, and served on initial active duty for training status from 21 May through 
23 September 1974.

3.  On 1 April 1976, the applicant was ordered to active duty for failure to attend mandatory monthly and annual training.

4.  On 12 July 1976, the applicant was admitted to Moncrief Army Hospital for a fractured jaw due to an injury that occurred a week earlier while he was on leave in Puerto Rico.  His jaw was immobilized and following treatment he did not complain of any residual problems for this condition.  

5.  The applicant was hospitalized on the Psychiatry Ward at Moncrief Army Hospital from 29 July through 17 August 1977.  The medical treatment documents for this period of hospitalization are not available.  

6.  The applicant was readmitted to the hospital in 19 August 1977 for severe difficulties with concentration and recent memory.  He was oriented as to person and place but not time.  On 25 August 1977, he was transferred to Eisenhower Army Hospital with a diagnosis of organic brain syndrome (probably secondary to a closed head trauma sustained in a fall in May 1976) and depressive neurosis.  

7.  The Narrative Summary of his Eisenhower Army Hospital notes indicate the applicant's problems dated from an accident in May 1976 while he was on leave in Puerto Rico.  During his hospitalization the applicant's condition worsened and he went absent without leave (AWOL) for 36 hours.  Following his return, his behavior became progressively more destructive and he went AWOL again on 10 October 1977.  Attempts to apprehend the applicant were unsuccessful and he was dropped from the hospital rolls on 20 October 1977.  His diagnosis at this time was acute psychotic depression, possibly secondary to organic brain syndrome.

8.  The applicant returned from an AWOL status and he was afforded additional treatment and testing with referral to a Medical Evaluation Board and Physical Evaluation Board (PEB).  He was found unfit for duty and placed on the Temporary Disability Retired List (TDRL) with a 50 percent rating for psychotic depressive reaction on 17 January 1978.  

9.  The applicant was transferred to the Department of Veterans Affairs (VA) for follow-up treatment and evaluations. 

10.  On 31 May 1980, he was removed from the TDRL and permanently retired with a 70 percent disability rating.  
11.  On 9 March 2011, the applicant was notified by the Army Human Resources Command, CRSC Branch that his application for CRSC was denied.  

12.  CRSC provides military retirees a 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.  To qualify military retirees must be an active duty or Reserve retiree with 20 or more years of creditable service or be 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)

13.  The term "in the performance of duty under conditions simulating war" is defined as resulting from military training, such as war games, practice alerts, tactical exercises, airborne operations, leadership reaction courses, grenade and live fire weapons practice, bayonet training, hand-to-hand combat training, rappelling and negotiation of combat confidence and obstacle courses.  It does not include physical training activities such as calisthenics and jogging or formation running and supervised sport activities. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant served entirely during peace time and all of the available medical records show that his problems were probably onset as a result of a head injury he sustained while on leave in Puerto Rico in 1976 or 1977.

2.  The record does not contain any evidence and the applicant has not provided any evidence that shows his injuries were the result of armed combat, an instrumentality of war, or a result of performing hazardous duty or training that simulates war. 

3.  Therefore, the applicant does not meet the eligibility requirements for award of CRSC and the requested relief is not 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)                                         AR20110020027



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ABCMR Record of Proceedings (cont)                                         AR20110020027



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