IN THE CASE OF:	  

		BOARD DATE:  18 October 2012

		DOCKET NUMBER:  AR20120003109 


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 correction of his records to show his disabilities were incurred as a result of his combat service in Iraq and are combat related.

2.  The applicant states he is receiving 100-percent disability compensation from the Department of Veterans Affairs (VA) for disabilities incurred during the war in Iraq.  However, he has attempted to claim Combat-Related Special Compensation (CRSC) and has been denied because his disabilities are not considered combat related.

3.  The applicant provides a copy of the letter denying his CRSC claim.

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 on 3 April 1987 for a period of 4 years.  He completed training and served until he was honorably released from active duty on 7 November 1990 due to dependency.  He was transferred to the U.S. Army Reserve Control Group (Reinforcement) to complete his service obligation.

3.  The applicant was subsequently transferred to a troop program unit in Puerto Rico and on 11 February 2003 he was ordered to active duty in support of Operation Enduring Freedom as a motor transport operator.  He deployed to Iraq on 11 May 2003.  He was promoted to pay grade E-5 on 24 March 2004.

4.  The original physical evaluation board (PEB) proceedings are not contained in his official records.  However, his records show he was honorably retired on 29 June 2005 and placed on the Temporary Disability Retired List (TDRL) under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(2), by reason of temporary disability.

5.  On 7 February 2008, an informal PEB convened at Fort Sam Houston, Texas, to evaluate the applicant's condition.  He was diagnosed as having cervical degenerative disc disease without motor neurologic deficit (VA codes 5299 and 5242), lumbar degenerative disc disease without motor neurologic deficit (VA codes 5299 and 5242), and right knee pain with active flexion of 95 degrees and active extension of 25 degrees from neutral (VA codes 5099 5003).  The PEB determined that he was physically unfit and recommended his permanent retirement with a combined 40-percent disability rating.  There is no indication in the proceeding to show the applicant's condition was deemed to have been incurred as a result of combat-related activities.  The applicant concurred with the findings and recommendations of the PEB and waived a formal hearing of his case.

6.  On 27 March 2008, he was removed from the TDRL and permanently retired by reason of permanent physical disability effective 28 March 2008.

7.  On 28 December 2011, the applicant received a letter from the U.S. Army Human Resources Command (HRC), Fort Knox, Kentucky, informing him that he had received a final CRSC determination on 2 December 2010 and his only recourse was to apply to this Board.

8.  A review of his official records shows that in each of his applications for CRSC, HRC determined that none of his conditions had been determined to be 


combat related and therefore denied his requests.  It appears that the applicant was applying for CRSC for bilateral joint disease in his knees, gastro-esophageal reflux disease, hypertension, loss of balance, hiatal hernia, labyrinthitis, major depressive disorder, and degenerative disorder.

9.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has an impairment rated at least 30-percent disabling.

10.  Title 38, U.S. Code, sections 310 and 331, permit the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  There is a difference between the VA and the Army disability systems.  The Army's determination of a Soldier's physical fitness or unfitness is a factual finding based on the individual's ability to perform the duties of his or her grade, rank, or rating.  If the Soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature.  The Army system requires that the Soldier only be rated as the condition(s) exist(s) at the time of the PEB hearing.  The VA may find a Soldier unfit by reason of service-connected disability and may even initially assign a higher rating.  The VA's ratings are based upon an individual's ability to gain employment as a civilian and may fluctuate within a period of time depending on the changes in the disability.

11.  The Under Secretary of Defense for Military Personnel Policy provided policy guidance on the processing of CRSC appeals.  This guidance states 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.

12.  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 VA and rated at least 10-percent disabling.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant has not provided sufficient evidence to show the evaluation and the rating rendered by the PEB were incorrect or that his disabilities should have been deemed to be combat related at the time of his separation.



2.  The fact that the VA in its discretion has awarded the applicant a higher disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, change the decision that his conditions were not combat related.

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.  In order to qualify for CRSC, the military retiree must show 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.

4.  The applicant's contention that his medical condition was sustained while participating in combat operations has been carefully considered.  However, the evidence fails to show his condition was the result of combat-related action.  Without evidence to establish a direct, causal relationship to the applicant's disability to war or the simulation of war, there is insufficient basis in which to grant his request.

5.  In the absence of evidence to support his claim that his conditions were caused by an instrumentality of war, there appears to be no basis to grant his request.

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 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 this action in no way diminishes the sacrifices made by him in service to the United States during the Global War on Terrorism.  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)                                         AR20120003109



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ABCMR Record of Proceedings (cont)                                         AR20120003109



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