BOARD DATE:	  17 April 2012

		DOCKET NUMBER:  AR20110021108 


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 correction of his records to show his noncombat related spinal disc condition is combat related.

2.  The applicant states his back injury was incurred in Vietnam and acted up when he returned from Vietnam.  He had surgery for this injury in 1974 at Madigan Army Hospital, Fort Lewis, WA.  He previously submitted an application for Combat-Related Special Compensation (CRSC) but it was denied as his condition wasn't combat related due to a Department of Veterans Affairs (VA) code.  However, the VA indicated the code had nothing to do with the rating.

3.  The applicant provides a 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's records show he enlisted in the Regular Army on 30 June 1961 and he held military occupational specialty 76Z (Senior Supply Sergeant).  He served in Vietnam from 2 September 1965 to 14 September 1966 and from 9 March 1972 to 13 February 1973.

3.  He served in a variety of assignments and was promoted to the rank of master sergeant (MSG) on 1 December 1979.

4.  On 17 October 1983, he completed Standard Form 93 (Report of Medical History) wherein he annotated he underwent spinal surgery in 1974 at Madigan Army Hospital.

5.  On 17 October 1983, he underwent a physical in conjunction with his retirement.  In item 38 (Clinical Evaluation - Spine, Other Musculoskeletal) of Standard Form 88 (Report of Medical Examination), the examining physician noted the applicant had "surgery, low back" and he made a "good recovery."

6.  He was honorably retired from active duty on 31 December 1983 in the rank of MSG.  He completed 23 years and 16 days of creditable active service.

7.  A review of The Adjutant General's Office, Casualty Division's Vietnam casualty listing failed to show his name as a casualty.

8.  There is no medical evidence in his available record that shows he was wounded as a result of hostile action while in an active duty status.

9.  On 12 April 2005, he filed a claim for CRSC based on his VA rating of
10-percent for a spinal disc condition.  In his application, he stated he incurred the condition during active combat in Vietnam on 1 January 1965 [sic].  

10.  By letter, dated 11 May 2005, the U.S. Army Physical Disability Agency informed him his claim was denied and stated his condition was service related but it was noncombat related as there was no evidence in his records to show a combat related event caused his condition.

11.  The applicant provides a VA letter, dated 24 December 1984, wherein it stated his claim for disability compensation was approved and he was rated at 10-percent disabled for a service-connected spinal disc condition.

12.  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, especially 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-percent 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-percent disabled or who are rated at least 60-percent 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.  

DISCUSSION AND CONCLUSIONS:

1.  The CRSC criteria is specifically for those military retirees who have combat related disabilities.  The military retiree must show that the disability was incurred while engaged in combat, while performing duties simulating combat conditions, or while performing specially hazardous duties such as parachuting or scuba diving.

2.  Although the VA determined his condition was service-connected, for VA purposes this means the VA has determined the disability was incurred or aggravated during military service.  The evidence of record contains no evidence and the applicant has not provided any evidence that shows his spinal disc condition was incurred while engaged in combat or is combat related.

3.  In view of the foregoing, he is not entitled to 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)                                         AR20110021108





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110021108



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1