IN THE CASE OF:	  

		BOARD DATE:  18 September 2012

		DOCKET NUMBER:  AR20120003162 


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 record to show he is eligible for Combat-Related Special Compensation (CRSC) based on service-connected disabilities affecting his back and knees as a result of airborne training and military physical fitness training.

2.  He states his CRSC claim was denied because he could not provide a copy of his jump log to the CRSC office.  Jump logs were not maintained in military personnel records during the time he served nor does he believe they are today.  He spoke with the officer-in-charge who makes CRSC decisions, and the officer indicated that if he had his jump log to prove he made more than the normal five jumps at jump school that it would be considered proof for his claim.  

3.  He states he did not have his jump log as he retired over 17 years ago.  Instead, he provided copies of pay vouchers and personnel records proving he had been on jump status on three separate occasions.  He explained that at no time was he in a "pay hurt" status which proves he had to make at least one jump every 90 days.  The personnel records were in line with finance records, which should suffice as proof.  He also provided the CRSC office a Board of Veterans Appeals Remand addressing the same issue.  He believes the evidence is overwhelming and his request should be approved.





4.  He provides:

* correspondence he received from the CRSC Branch, U.S. Army Human Resources Command (HRC) 
* a request for reconsideration of his CRSC claim he submitted to the CRSC Branch
* his Officer Record Brief
* his DA Form 2-1 (Personnel Qualification Record)
* a Department of Veterans Affairs (VA) Rating Decision
* pages from his service medical records
* correspondence between him and the Defense Finance and Accounting Service
* 40 JUMPS-Army Leave and Earnings Statements

CONSIDERATION OF EVIDENCE:

1.  On 3 February 1976, with prior enlisted service in the Regular Army (RA) and U.S. Army Reserve (USAR), the applicant enlisted in the RA.  After completing Advanced Individual Training he was awarded military occupational specialty 72E (Telecommunications Center Operator).

2.  Item 17 (Civilian Education and Military Schools) of his DA Form 2-1 shows he completed the Basic Airborne Course in 1982.

3.  On 29 August 1985, he was honorably discharged and ordered to active duty as a warrant officer.  

4.  On 28 February 1994, he retired after completing 20 years and 26 days of active military service.

5.  His Military Personnel Records Jacket does not contain his service medical records or his jump record.  

6.  On 29 November 2011, the CRSC Branch informed him they were unable to overturn previous adjudications of his CRSC claim and informed him he could appeal to this Board.  The letter informing him of the decision includes a summary of his final decision under CRSC.  The summary shows he was awarded CRSC for post-traumatic stress disorder.  He was given final disapproval on four conditions rated as service-connected by the VA:

* residuals, back injury, chronic lumbosacral strain, degenerative disc disease, left sciatic radiation
* gastroesophageal reflux disease (GERD)
* hypertension
* residuals, right knee injury, chronic strain, degenerative joint disease

7.  The CRSC Branch informed him the diagnoses of residuals, back injury, and residuals, right knee injury, were found to be degenerative conditions with no accident or incident to connect the disability to a combat-related event.

8.  In support of his application to the CRSC Branch, he provided a VA Rating Decision, dated 15 October 2010.  The Rating Decision addresses his diagnoses of residuals, back injury, and residuals, right knee injury, and shows the review of his rating was the result of a remand from the Board of Veterans Appeals.  It states a VA examination in May 1994 noted his complaints of chronic back pain and right knee pain that he related to a 12-year history of parachute jumps with an airborne unit.  Following a VA examination in March 2009, he was diagnosed with degenerative disc disease of the lumbar spine with left sciatic radiation and right knee strain with degenerative joint disease.  The examiner opined that it was at least likely as not that his current back problems and right knee problem were associated with his service.  The board noted that as the evidence was at least in equipoise, the benefit of the doubt rule applied and his claims for service connection for low back and right knee disorders were granted.  He received a 10 percent (%) evaluation for residuals, back injury, and a 10% evaluation for residuals, right knee injury.

9.  He provides Leave and Earnings Statements showing he received jump pay during the following periods:

* August 1982 – June 1983
* October 1985 – January 1988
* November 1991 

10.  He provides evidence from his service medical records showing:

* in September 1976, he sought medical treatment for right leg pain following an injury he received playing football
* in August 1979, he sought medical treatment for an injury to his right knee, and an x-ray of the knee was negative
* on 29 June 1987, he sought medical treatment for an injury to his right hamstring incurred while "running from 3rd base to homeplate"
* on 28 August 1993, he sought medical treatment for right knee pain and stated he had not bumped or hit his knee at any time


11.  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.

12.  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.

13.  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.  

14.  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 evidence of record does not show nor has the applicant provided evidence linking his degenerative disc disease or his degenerative joint disease to parachute jumps.  While the record clearly shows he served on jump status several years, there is no evidence that he was injured while engaged in hazardous service.  

2.  In the absence of evidence showing he was injured as the direct result of actions taken in the performance of parachute duty, there is no basis for correcting his record to show he is eligible for CRSC for VA-rated conditions affecting his back and knee.  

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)                                         AR20120003162



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ABCMR Record of Proceedings (cont)                                         AR20120003162



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