IN THE CASE OF:	  

		BOARD DATE:  4 September 2012

		DOCKET NUMBER:  AR20120003280 


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, reversal of the decision to deny her combat-related special compensation (CRSC) benefits. 

2.  The applicant states:

	a.  She firmly believes she submitted the necessary documentation to substantiate her claim for benefits.  Unless the regulations have been amended, it is her understanding that one does not have to have engaged in actual combat to be approved for CRSC benefits.  She therefore requests that this injustice be reevaluated.

	b.  She personally knows disabled veterans who were approved for CRSC benefits, but were not in an actual combat environment.  The policy is for injured veterans.  She knows for a fact that even some Army Reservists that never served in combat were approved for CRSC benefits.  Her application should be considered because her injuries were incurred while she was on active duty, which was acknowledged by the Department of Veterans Affairs (VA), and an application for CRSC was submitted in a timely manner subsequent to retirement from the U.S. Army.

	c.  She served on active duty from 2004 to 2007 at Fort Lee, VA, during Operation Enduring Freedom (OEF).  She sustained the injuries indicated in her application during a Simulated Combat Training Field Exercise, after being 

ordered to hastily dismount a 2 1/2 ton truck wearing full combat gear and carrying a weapon under simulated attack.  She jumped from the truck, as ordered, and upon hitting the ground she sustained the injuries that have been noted in her VA file and CRSC application.

3.  The applicant provides:

* four VA Rating Decisions, dated 30 April 2008, 22 September 2008, 10 March 2010, and 1 June 2011
* three letters from the CRSC Branch, dated 28 September 2011, 16 November 2011, and 17 January 2011

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel defers requests and statements to the applicant and provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show she enlisted in the USAR on 27 June 1975.  She served in the USAR through multiple reenlistments.  She was ordered to active duty in support of OEF, with a reporting date of 4 September 2006, for 365 days.  She was released from active duty on 3 September 2007.

2.  On 13 October 2007, she was transferred to the Retired Reserve.  She was placed on the retired list on 28 August 2011.

3.  Her complete service and/or VA medical records are not available for review with this case.  She provides:

	a.  VA Rating Decision, dated 30 April 2008, awarding her service-connected disability compensation for bilateral pes planus and plantar fasciitis (claimed as flat feet and bilateral foot condition), left ankle strain, and low back strain with an evaluation of 10 percent (%) effective 4 September 2007.

	b.  VA Rating Decision, dated 22 September 2008, awarding her service-connected disability compensation for right and left knee strain.

	c.  VA Rating Decision, dated 10 March 2010, awarding her service-connected disability compensation for right and left knee strain, low back strain, and bilateral hip strain.

	d.  VA Rating Decision, dated 1 June 2011, awarding her service-connected disability compensation for left and right hip strain increased to 10%.

4.  She provides the following letters from CRSC Branch that show:

   a.  On 28 September 2011, she was advised that they were unable to verify her bilateral pes planus and plantar fasciitis, right and left ankle strain, degenerative joint disease of the lumbar spine, left and right hip strain, and left and right knee strain as combat-related disabilities.
   
   b.  On 16 November 2011, she was again advised that they were unable to verify her bilateral pes planus and plantar fasciitis, right and left ankle strain, degenerative joint disease of the lumbar spine, left and right hip strain, and left and right knee strain as combat-related disabilities.
   
   c.  On 17 January 2012, she was advised that they were unable to overturn the previous adjudications and the disapproval was now considered final.  No evidence was provided to show a combat-related event caused her conditions.  She was also advised she could appeal to the Army Review Boards Agency.  

5.  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% disabling.  Military retirees who are approved for CRSC must have waived a portion of their military retired pay since CRSC consists of the Military Department returning a portion of the waived retired pay to the military retiree.

6.  The Under Secretary of Defense, Military Personnel Policy has provided policy guidance on the processing of CRSC appeals.  In that guidance it was stated 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.

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 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.

2.  The applicant has submitted evidence to show that her disabilities are service related.  However, she has not submitted any evidence which would show her injuries are combat related or related to simulated combat.  

3.  She appears to 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.

4.  Without evidence to establish a direct, causal relationship to her VA rated disabilities to war or the simulation of war ( i.e., the Simulated Combat Training Field Exercise), there is an insufficient basis on which to grant her 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)                                         AR20120003280



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ABCMR Record of Proceedings (cont)                                         AR20120003280



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