IN THE CASE OF:	

		BOARD DATE:	 24 May 2012

		DOCKET NUMBER:  AR20110024695 


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 his knee injury be considered service-connected/
combat-related. 

2.  The applicant states:

* His record should show a combat-related service condition for his knee disability
* His knee injury occurred in 1968 during a simulated war exercise
* His knee came into contact with his weapon while climbing into a foxhole during night live-fire exercises
* He has met 3 out of 4 for combat-related special compensation 
* His record only shows service-connected injury
* He was injured while in the Army but he retired from the U.S. Air Force Reserve (USAFR)
* He petitioned the USAF for CRSC but he was twice denied 

3.  The applicant provides:

* DA Form 3555 (Outpatient Medical Record)
* Standard Form 513 (Consultation Sheet)

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 Regular Army (RA) on 25 March 1968 for a period of 4 years.  He held military occupational specialty 16B (Hercules Missile Crewmember).  He was assigned to Battery A, 4th Battalion, 65th Artillery, Palmdale, CA.

3.  On 12 December 1968, he was honorably discharged.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for this period of service shows he completed 8 months and 18 days of total active service.

4.  He executed a 4-year reenlistment in the RA on 13 December 1968.  He was honorably released from active duty at Fort Bragg, NC, on 22 September 1972 and he was transferred to the U.S. Army Reserve (USAR) Control Group (Standby) to complete his remaining service obligation.  His DD Form 214 for this period of service shows he completed 3 years, 9 months, and 10 days of net active service this period.

5.  He enlisted in the North Carolina Army National Guard (ARNG) on 5 May 1975 and he participated in unit training.  He was honorably discharged from the ARNG on 4 May 1977.

6.  He enlisted in the USAR on 16 June 1977 and he served through two more reenlistments on 1 May 1979 and 13 July 1982.

7.  His service medical records are not available for review with this case.

8.  His CRSC application, supporting documents, and reasons for denial are not available for review with this case.

9.  He submitted:

	a.  A DA Form 3555, dated 30 August 1972, that shows the entries "aches when walking and giving way when gets out of jeep" and "injury to knee falling down steps 1 1/2 weeks ago twisting medially."

	b.  Standard Form 513, dated 30 August 1972, that shows a consult was issued to the Orthopedic Clinic to see the applicant on what appears to be an emergency basis and the entry "24 years old male giving out of left knee getting sore 1 1/2 weeks after fall on steps twisting to the right."

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-13k of the version in effect at that time, stated that in making a determination whether a disability should be classified as being incurred during armed conflict or due to an instrumentality of war, the following was considered:  A member whose retirement or separation from the service was based on disability resulting from injury or disease received in line of duty as a direct result of armed conflict, or caused by an instrumentality of war and incurred in line of duty during a period of war, would have the block "is" checked in item 10 of the DA Form 199 (Physical Evaluation Board (PEB) Proceedings).

	a.  Armed conflicts.  A disability could be considered a direct result of armed conflict (Appendix A [Instrumentality of war]) if a device primarily designed for military service and intended for use in such service at the time of the occurrence of the injury or a device not designed primarily for military service, but the use of or occurrence involving such device subjected the individual to a hazard peculiar to military service as distinguished from such use or occurrence under similar circumstances in civilian pursuits.

		(1)  It was incurred while the member was engaged in armed conflict or an operation or incident involving armed conflict or the likelihood of armed conflict, or while interned as a prisoner-of-war or detained against his will in the custody, of a hostile or belligerent force or while escaping or attempting to escape from such prisoner-of war or detained status, and

		(2)  A direct causal relationship exists between the armed conflict or the incident or operation and the disability.  A determination that a disability resulted from injury or disease received in line of duty as a direct result of armed conflict would be appropriate only when it was also determined that the disability so incurred in itself rendered the member physically unfit.

	b. Instrumentality of war.  A determination that a disability was caused by an instrumentality of war and incurred in line of duty would be appropriate only when it was also determined that the disability so incurred in itself rendered the member physically unfit and was incurred during one of the periods of war as defined by law, i.e.:

* World War II - 7 December 1941 to 31 December 1946; and any period of continuous service performed after 31 December 1946 and before 26 July 1974, if such period began before 1 January 1947
* Korean War - 27 June 1950 to 31 January 1955
* Vietnam Era - 5 August 1964 and ending on 7 May 1975 (including the "Dominican Intervention")

11.  Army Regulation 635-40, paragraph 4-19j of the version currently in effect, states that in making a determination whether a disability should be classified as being incurred during an armed conflict or due to an instrumentality of war the following must be considered:

	a.  The disability resulted from injury or disease received in line of duty (LD) as a direct result of armed conflict and which itself renders the Soldier unfit.  A disability may be considered a direct result of armed conflict if the disability was incurred while the Soldier was engaged in armed conflict, or in an operation or incident involving armed conflict or the likelihood of armed conflict; while the Soldier was interned as a prisoner of war or detained against his will in the custody of a hostile or belligerent force; or while the Soldier was escaping or attempting to escape from such prisoner of war or detained status; or a direct causal relationship exists between the armed conflict or the incident or operation, and the disability.

	b.  The disability is unfitting, was caused by an instrumentality of war, and was incurred in LD during a period of war as defined by law.  The periods of war as defined in Title 38, U.S. Code, sections 101 and 301 include World War II, Korea, and Vietnam.

12.  Army Regulation 635-40, currently in effect, states conditions simulating war include, but are not limited to, the following activities:  performance of tactical exercises such as a squad or platoon in the assault; airborne operations; leadership reaction courses; grenade and live fire weapons practice; bayonet training; hand-to-hand combat training; rapelling; and negotiation of combat confidence and obstacle courses.

13.  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, specially 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.  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 applicant's service medical records, including the complete facts and circumstances surrounding his claimed knee injury, are not available for review with this case.  The documents he provides show he injured his knee when he "fell down steps."  There is no mentioning of a live-fire exercise, knee coming into contact with a weapon, or climbing out of a foxhole.

2.  In the absence of the complete facts and circumstances and given what the applicant submitted, it is impossible to establish a direct, causal relationship that led to his injury.  Even if the Board were to speculate that the applicant might have been preparing for a simulated war at that time, there is insufficient evidence to show that he was injured during actual simulated combat.  It appears under today's standards that the applicant's injury would not fall under conditions simulating war.

3.  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.  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.

4.  The applicant appears to confuse service connection for VA purposes with CRSC eligibility.  These are not necessarily the same.  If they were the same, CRSC would be automatic for those military retirees with VA disability pensions.  Service connection for VA purposes means the VA has determined that the disability was incurred or aggravated during military service.  CRSC determinations require evidence of a direct, causal relationship to the military retiree’s VA rated disabilities to war or the simulation of war.

5.  Without evidence to establish a direct, causal relationship to the applicant’s rated disabilities to war or the simulation of war, there is 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:

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)                                         AR20110024695



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ABCMR Record of Proceedings (cont)                                         AR20110024695



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