IN THE CASE OF:	  

		BOARD DATE:	  18 December 2012

		DOCKET NUMBER:  AR20120001806 


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, in effect, correction of his records to show he is eligible for Combat-Related Special Compensation (CRSC) based on service-connected disabilities.

2.  The applicant states that the decision to deny him CRSC because his injuries were not proven to be combat related is in error because he sustained his injuries during the Gulf War and while participating in a field training exercise (FTX)/simulation of war.

3.  The applicant provides:

* Department of Veterans Affairs (VA) rating and decision letters
* CRSC denial letter from the U.S. Army Human Resources Command (USAHRC), Fort Knox, KY (HRC-KNX), dated 23 February 2011
* Temporary Disability Retirement Orders, dated 5 May 1998
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 2173 (Statement of Medical Examination and Duty Status), dated 5 April 1993 with associated documents
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated September 23, 1996



CONSIDERATION OF EVIDENCE:

1.  The applicant's service medical records are not available; however, a review of his Army Military Human Resources Record (AMHRR) shows:

   a.  On 23 September 1996, a Physical Evaluation Board (PEB) convened at Walter Reed Army Medical Center, Washington, DC, and found his medical conditions unfitting.  The PEB rated him under the VA Schedule for Rating Disabilities (VASRD) codes:

* 8599/8521, status post segmental loss, left tibia, with decreased range of motion left ankle, left foot
* 5099/5003, left hip pain 

   b.  The PEB recommended placement on the Temporary Disability Retired List (TDRL) with a combined disability rating of 40 percent (30 percent for his left leg, ankle, and foot and 10 percent for left hip pain).  The PEB proceedings also stated "The Soldier's retirement is based on disability from injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war..." and "The disability did result from a combat related injury as defined in 26 U.S. Code 104."
   
   c.  On 17 November 1996, he was retired and placed on the TDRL in the rank of specialist (SPC).  He completed 8 years, 1 month, and 29 days of creditable active service.
   
	d.  On 4 March 1998, a TDRL PEB convened at Walter Reed Army Medical Center, Washington DC and found his condition did not improve to the extent that he was considered fit for duty.  The PEB proceedings indicated that there was no evidence of hip pain or problem and did not issue a rating for that condition.  Further, the PEB stated his present PEB rating of 30 percent accurately reflected the current degree of severity for the medical condition associated with his left leg, ankle, and left foot.  Accordingly, the PEB recommended his permanent retirement.

   e.  On 5 May 1998, he was removed from the TDRL and permanently retired by reason of physical disability with a 30 percent disability rating.



2.  On 20 January 2011, he filed a claim for CRSC based on being injured in the line of duty by an instrumentality of war, in a 5-ton truck accident.  By letter, dated 23 February 2011, HRC informed him his claim was denied and stated there was no evidence in his claim to show that any of the injuries listed in the VA database were combat-related.  Further, the documents he submitted stated that many of his conditions were the result of a motor vehicle accident.  Under CRSC guidelines, motor vehicle accidents are not considered combat-related unless the accident occurred while simulating war or during actual combat.

3.  On 8 March 2011, he filed a request for reconsideration of his claim.  By letter, dated 11 April 2011, HRC informed him his claim was denied and stated his injuries were related to an accident he had in a five-ton military vehicle.  HRC requested he provide the LOD documentation explaining how the accident occurred.

4.  On 5 May 2011, he provided the LOD documentation for reconsideration of his claim.  By letter, dated 12 May 2011, HRC informed him that after reviewing all the evidence he provided they were still unable to find justification to reverse their previous decision.

5.  The applicant provides:

   a.  A VA Rating Decision, dated 18 October 2011, in which he highlights three of his service-connected disabilities:

* post traumatic stress disorder (PTSD), 50-percent, Gulf War incurred
* loss of use of left foot, 40-percent, Gulf War incurred
* lumbar strain, 40-percent, Gulf War 

   b.  His LOD documentation which summarily shows that on 18 March 1993 at Fort Bragg, NC, at approximately 1230 hours, the applicant was a passenger in a a M923 5-ton vehicle enroute to the Company B, 426th Signal Battalion field site when it exited the roadway onto the north shoulder.  The vehicle then reentered the roadway sliding sideways, flipping onto its left side where it slid approximately 60 feet down the road where it flipped back into an upright position, coming to a final rest.  The applicant and the driver were medically evacuated to Womack Army Hospital where they were treated for multiple injuries and admitted.  The other passenger was transported by ambulance and pronounced dead on arrival at 1515 hours.  His injuries were considered to have been incurred in the LOD.



6.  Title 10, U.S. Code, Section 1413a provides the statutory authority for CRSC.

	a.  It states that the Secretary of Defense shall prescribe procedures and criteria under which a disabled uniformed services retiree may apply to the Secretary of a military department to be considered to be an eligible combat-related disabled uniformed services retiree.

	b.  It defines combat-related disability as a disability that is compensable under the laws administered by the Secretary of Veterans Affairs and that is attributable to an injury for which the member was awarded the Purple Heart; or was incurred (as determined under criteria prescribed by the Secretary of Defense):

		(1)  as a direct result of armed conflict;

		(2)  while engaged in hazardous service;

		(3)  in the performance of duty under conditions simulating war; or

		(4)  through an instrumentality of war.

7.  Department of Defense (DOD) guidance on CRSC states a combat-related disability is a disability with an assigned medical diagnosis code from the VA Schedule for Rating Disabilities that was incurred:

	a.  as a direct result of armed conflict;

	b.  while engaged in hazardous service;

	c.  in the performance of duty under conditions simulating war; or

	d.  through an instrumentality of war.

8.  The DOD guidance states the burden of proof that a disability is combat-related rests with the applicant and members will be required to provide copies of documents in their possession to the best of their ability.  The Military Departments will determine whether a disability is combat-related under a, b, c, or d, above, using the definitions and criteria set forth in Attachment 1-1.  



9.  Attachment 1-1 states the following criteria, terms, definitions, and explanations will apply to making combat-related determinations in the CRSC program. 

	a.  Direct Result of Armed Conflict - The disability is a disease or injury incurred in the line of duty as a direct result of armed conflict.  The fact that a member incurred the disability during a period of war or an area of armed conflict or while participating in combat operations is not sufficient to support a combat-related determination.  There must be a definite causal relationship between the armed conflict and the resulting disability. 

		(1)  Armed conflict includes a war, expedition, occupation of an area or territory, battle, skirmish, raid, invasion, rebellion, insurrection, guerilla action, riot, or any other action in which Service members are engaged with a hostile or belligerent nation, faction, force, or terrorists. 

		(2)  Armed conflict may also include such situations as incidents involving a member while interned as a prisoner of war or while detained against his or her will in custody of a hostile or belligerent force or while escaping or attempting to escape from such confinement, prisoner of war, or detained status. 

	b.  While Engaged in Hazardous Service - Such service includes, but is not limited to, aerial flight, parachute duty, demolition duty, experimental stress duty, and diving duty.  A finding that a disability is the result of such hazardous service requires that the injury or disease be the direct result of actions taken in the performance of such service.  Travel to and from such service, or actions incidental to a normal duty status not considered hazardous are not included.

	c.  In the Performance of Duty Under Conditions Simulating War - In general this covers disabilities 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. 

	d.  Instrumentality of War - Incurrence during an actual period of war is not required.  However, there must be a direct causal relationship between the instrumentality of war and the disability.  The disability must be incurred incident to a hazard or risk of the service.




DISCUSSION AND CONCLUSIONS:

1.  The CRSC criteria is 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.

2.  The available evidence shows the applicant injured his left leg when the five-ton truck he was riding in left the road.  At the time of the accident the vehicle was travelling to an FTX site.  Although his PEB indicated the injury was caused by an instrumentality of war and during a period of war, under CRSC guidelines his injury was specifically caused by a vehicle accident not related to the simulation of war.  There is no evidence to show that he was injured during actual simulated combat or by an instrumentality of war as defined under the CRSC guidelines.

3.  An instrumentality of war is a vehicle, vessel, or device designed primarily for military services and intended for use in such service at the time of the occurrence or injury.  It may also include such instrumentalities not designed primarily for military service if use or occurrence involving such instrumentality subjects the individual to a hazard peculiar to military service.  Such use or occurrence differs from the use or occurrence under similar circumstances in civilian pursuits.

4.  The evidence suggests the applicant was involved in a routine food delivery to the field.  It does not suggest that he was engaged in a simulation of war at the time of the accident.  The witness statements indicated that the road was not on the FTX site or reserved for military use only as the witnesses were civilians.  While the 5-ton truck could be defined as an instrumentality of war, the governing regulation requires that there must be a direct causal relationship between the use of the instrumentality of war and the disability and the disability must be incurred incident to a hazard or risk of service.  The evidence shows the applicant was engaged in a food delivery on a road open to civilian traffic.  The evidence suggests this was a routine food delivery.  Delivering food on a “civilian” road does not appear to differ significantly from a civilian pursuit in a civilian-type vehicle.

5.  The applicant should not 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.

6.  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)                                         AR20120001806





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ABCMR Record of Proceedings (cont)                                         AR20120001806



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