IN THE CASE OF:	  

		BOARD DATE:	  12 April 2012

		DOCKET NUMBER:  AR20120000988 


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 Combat Related Special Compensation (CRSC) for a hearing problem.

2.  The applicant states that his recollections of the origins of his hearing problems should be accepted as an exception to policy.  He contends that Department of Veterans Affairs (VA) records establish a connection between his tinnitus (ringing in the ears) and his military service.  He relates that, although there was a series of incidents rather than a single event, the most damaging incident was that a grenade/field artillery simulator was thrown into his foxhole.

3.  The applicant provides an incomplete DD Form 2860 (Claim for CRSC) and a completed DD Form 2680, dated 18 February 2007, and the response to that application; DD Form 214 (Certificate of Release or Discharge from Active Duty); pay and compensation worksheet; Service and VA medical records; and CRSC appeals.

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 retired as a master sergeant/E-8 on 31 March 1992 due to length of service.

3.  He applied for CRSC on several occasions and has been rated for back problems and frostbite of both feet.  He was exposed to cold weather during Exercise Reforger in Germany.  He has consistently been denied CRSC for tinnitus.  

4.  VA records associated with his CRSC claims show that, effective 25 June 2004, the VA granted him service connection for 10 percent disability for tinnitus.

5.  His VA medical documents include a VA letter, dated 21 December 2009, showing he had a combined service–connected rating of 60 percent.  Also included was a signed but undated statement written by the applicant.  It described:

     a.  a June 1968 pre-deployment training incident in which the applicant and a companion were detailed to remove a roadblock consisting of downed trees.  The trees had been booby-trapped.  They were both knocked off their feet and had temporary hearing loss.

     b.  how during a 1969 training exercise in South Korea he was within 25 feet of a 3-inch gun when it went off.

     c.  how during a July 1975 field training exercise (FTX) he was exposed to the loud noise of a towed Vulcan gun.

     d.  how in February 1976 he was on an FTX when his platoon sergeant threw a grenade simulator into a foxhole.  "The noise caused my hearing to be gone for a short while."   Also, in that unit they were always around helicopters without using earplugs.

6.  His most recent appeal for CRSC for tinnitus was denied due to lack of evidence. 

7.  The Under Secretary of Defense for Military Personnel Policy provided policy guidance for processing CRSC appeals.  The guidance states there must be evidence of the condition having a direct, causal relationship to war or the simulation of war for a condition to be considered combat related.

8.  CRSC, as established by Title 10, U.S. Code, section 1413a, 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 weren't for the statutory prohibition for a military retiree to receive a VA disability pension.

	a.  Payment is made by the Military Department, not the VA, and is tax free.

	b.  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.

	c.  Qualified disabilities must be compensated by the VA and rated at least 10-percent disabling.

	d.  For periods before 1 January 2004 (the date this statute was amended), members had to have disabilities for which they were awarded the Purple Heart and were rated at least 10-percent disabled or who were rated at least 
60-percent disabled as a direct result of armed conflict, especially hazardous duty, training exercises that simulate war, or caused by an instrumentality of war.

	e.  Military retirees who are approved for CRSC must have waived a portion of their military retired pay because CRSC requires the Military Department to return to the military retiree a portion of the waived retired pay.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show he is eligible for CRSC because his hearing loss was service connected.

2.  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 the disability was incurred while engaged in combat or while performing duties simulating war.

3.  There is insufficient evidence to show the applicant's tinnitus is the result of training exercises that simulate war.  Clearly all parts of every FTX do not do so.  In addition, the applicant acknowledged in a 21 December 2009 letter that in his unit they were always around helicopters without using earplugs.  This raises considerable doubt as to whether his hearing problem occurred as a result of a specific incident or because of long-term noise exposure.

4.  Without evidence to establish a direct causal relationship of the applicant's VA-rated disabilities to war or the simulation of war, there is an insufficient basis on which to grant his request.

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)                                         AR20120000988



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ABCMR Record of Proceedings (cont)                                         AR20120000988



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