IN THE CASE OF:	  

		BOARD DATE:	  31 July 2012

		DOCKET NUMBER:  AR20120002114 


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 his disabilities are combat-related.

2.  The applicant states he was denied Combat-Related Special Compensation (CRSC) although his disabilities resulted from combat action in Vietnam.

3.  The applicant provides three letters, 14 DA Forms 1594 (Daily Staff Journal or Duty Officer's Log), and a Department of Veterans Affairs (VA) Rating Decision.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army (RA) on 7 November 1967 and he held military occupational specialty 12B (Combat Engineer).  He served in Vietnam from 12 April 1968 to 14 August 1969 while assigned to Company B, 15th Engineer Battalion, 9th Infantry Division.

2.  He was discharged on 12 July 1970 for the purpose of immediate reenlistment.  He completed 2 years, 8 months, and 6 days of creditable active service during this period of service.  The DD Form 214 he was issued for this period of service is not available for review with this case.

3.  He reenlisted in the RA on 13 July 1970 and he was discharged on 16 April 1974 for the purpose of immediate reenlistment.  He completed 3 years, 9 months, and 4 days of creditable active service during this period of service.
4.  The DD Form 214 he was issued for this period of service shows he completed a total of 6 years, 5 months, and 11 years of creditable active service.

5.  He reenlisted in the RA on 17 April 1974.  He served in a variety of assignments throughout multiple reenlistments/extensions and was promoted to the rank of first sergeant (1SG) on 1 May 1985.

6.  He was honorably retired from active duty on 31 October 1989 in the rank of 1SG.  He completed 15 years, 6 months, and 14 days of creditable active service during this period of service and a total of 21 years, 11 months, and 24 days of creditable active service.  

7.  On 12 April 2011, he filed a claim for CRSC based on his VA rating of
20 percent for lumbar spine degenerative joint disease and 10 percent for tinnitus.  In his application, he stated he incurred the conditions during active combat in Vietnam.  

8.  On 5 May 2011, the Combat-Related Special Compensation Branch, U.S. Army Human Resources Command (HRC), informed him his claim was denied and stated there was no evidence in his records to show a combat-related event caused his condition of lumbar spine degenerative joint disease and there was no official evidence indicating a combat award or exposure to weapons, explosions, tanks, or aircraft that caused his tinnitus.

9.  On 15 July 2011, HRC informed him his claim was again denied as they were still unable to verify that either of his disabilities was combat-related.  The documentation he provided showed he had the conditions he claimed, but did not show a relationship between an injury and a combat event.

10.  On an unknown date, he appealed HRC's denial and submitted 14 Company B, 15th Combat Engineer Battalion duty officer logs, dated between 28 February and 20 June 1969.  In his appeal he stated during landmine clearing operations in Vietnam on 28 February 1969, his unit came under enemy small arms fire.  He was the operator of the land mine detector and slipped in an effort to seek cover.  He fell on the mine detector battery pack causing injury to his back.  In addition, during his service in Vietnam he was subjected to loud explosions, rocket fire, and artillery fire which caused him acoustic trauma resulting in the ringing and roaring in his ears.

11.  The duty officer log, dated 28 February 1969, indicated different platoons in the Company B, 15th Combat Engineer Battalion, conducted mine sweeping operations throughout the day.  It also stated, "At 0110 there was a mortar attack with no casualties or damage in the unit."  None of the logs lists the applicant's name or the names of any of the Soldiers involved in the mine sweeping operations, nor do they list the applicant as having been injured during combat operations.

12.  On 2 September 2011, HRC again denied his claim and stated the documentation he submitted did not meet the criteria for CRSC under current program guidance.

13.  The applicant provides a VA Rating Decision, dated 8 March 2011, wherein it stated his disability claim was approved and:

* his condition of lumbar spine degenerative joint disease was determined to be service-connected and rated at 20 percent effective 15 October 2010
* his condition of tinnitus was determined to be service-connected and rated at 10 percent effective 15 October 2010

14.  The VA rating decision also stated his claim for the conditions of residuals of frostbite of both hands, basal cell carcinoma right cheek, kidney stones, residuals of left injury, bilateral hearing loss, bunions of both feet, hemorrhoids, and hernia were determined not to be service connected and were denied.

15.  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.  

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 conditions of lumbar spine degenerative joint disease and tinnitus were 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)                                         AR20120002114





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ABCMR Record of Proceedings (cont)                                         AR20120002114



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