IN THE CASE OF:	  

		BOARD DATE:	  10 May 2012

		DOCKET NUMBER:  AR20110021659 


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 Traumatic Brain Injury (TBI), Degenerative Joint Disease of the cervical spine, left knee and left ankle be considered combat-incurred for the purpose of Combat-Related Special Compensation (CRSC).  

2.  The applicant states that he disagrees with the determination of the CRSC Branch that his TBI and Degenerative Joint Disease of the cervical spine, left knee and left ankle were not combat-incurred, especially since they determined that his degenerative joint disease arthroscopic and right ankle were combat related.  He further states that all of his degenerative joint disease was caused by the same condition/trauma.  He continues by stating that he was involved in a motor vehicle accident (MVA) during a tactical night move that caused his injuries and were further aggravated by simulated combat training.

3.  The applicant provides a two-page letter explaining his application, copies of his three CRSC claims, and copies of his Department of Veterans Affairs (VA) 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.  The applicant enlisted the Regular Army on 26 February 1976 for a period of 3 years.  He completed his training and remained on active duty through a series of continuous reenlistments.  He served in Southwest Asia from 27 August 1990 to 20 March 1991.  He was promoted to the pay grade of E-7 on 1 May 1993.

3.  On 28 February 1998, he was retired by reason of sufficient service for retirement and he was transferred to the Retired List effective 1 March 1998.  He had served 22 years and 5 days of total active service.

4.  The applicant applied to the U.S. Army Human Resources Command (HRC) for CRSC on 20 June 2003 and on 27 February 2004 he was granted 30% combat-related disability for Dysthymic Disorder.

5.  The applicant again applied to the U.S. Army Human Resources Command (HRC) for CRSC.  On 7 December 2009, HRC granted him CRSC (50%) for right knee condition, limited motion of right ankle and post-traumatic stress disorder (PTSD) as being combat-related.  The HRC denied his request for combat-related disability for limited motion in cervical spine and left ankle.

6.  The applicant again applied to the U.S. Army Human Resources Command (HRC) for CRSC.  On 1 December 2010, HRC granted him combat-related CRSC (50%) for degenerative joint disease, status post Arthroscopic Medial (20%), Degenerative Arthritis right ankle (10%) and post-traumatic stress disorder (PTSD) with depression (30%).  The HRC denied his request for combat-related disability for Cervical Degenerative Joint Disease, Degenerative Arthritis, left ankle, Degenerative Joint Disease, left knee, status post Meniscus and residuals of TBI.

7.  The applicant again applied to the U.S. Army Human Resources Command (HRC) for CRSC and on 30 September 2011, the HRC considered his request for reconsideration and granted him the same results as his previous application.   The HRC also informed the applicant that he needed to provide factual evidence that establishes a combat event as the cause of the MVA which created his condition

8.  A review of the applicant’s official records failed to reveal any specific information related to the MVA the individual was involved in and the applicant has failed to provide any evidence related to the incident in question.

9.  On 27 May 2010 the VA reopened the applicant’s claim of TBI and granted him a 70% disability rating effective 23 November 2009.

10. The Under Secretary of Defense for 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.

11.  Title 10, U.S. Code, section 1413a (CRSC) provides that eligible members are those retirees who have 20 years of service for retired pay computation 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 DVA and rated at least 10% disabling.  For periods before 1 January 2004, members had to have disabilities for which they were 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 cause by an instrumentality of war.

DISCUSSION AND CONCLUSIONS:

1.  The CRSC criteria are 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.  In order to qualify for CRSC, the military retiree must show that the disability was incurred while engaged in combat, while performing duties simulating combat conditions, or while performing especially hazardous duties such as parachuting or scuba diving.

2.  The applicant's contention that his medical condition (TBI and Degenerative Joint Disease of the cervical spine, left knee and left ankle) was sustained while participating in combat operations has been carefully considered.  However, without evidence to establish a direct, causal relationship to the applicant’s disability to war, there is insufficient basis in which to grant his request.

3.  Therefore, in the absence of evidence to support his claim that his condition was caused by an instrumentality of war, there is an insufficient evidentiary basis for granting the applicant’s requested relief.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ___x____  ____x___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1. 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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Gulf War.  The applicant and all Americans should be justifiably proud of his service in arms.




      _______ _   _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)                                         AR20110021659





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ABCMR Record of Proceedings (cont)                                         AR20110021659



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