IN THE CASE OF:	  

		BOARD DATE:	  25 September 2012

		DOCKET NUMBER:  AR20120005391 


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, the widow of a former service member (FSM), requests, in effect, correction of the FSM's military service records to show he was granted Combat-Related Special Compensation (CRSC) based on service connection for coronary artery disease associated with herbicide exposure used in the Republic of Vietnam and the subsequent development of the condition.

2.  The applicant states the Department of Veterans Affairs (VA) increased the FSM's disability rating from "50%" to 100% on "13 January 2002."  She asked the U.S. Army Human Resources Command (USA HRC), CRSC Branch, to "rework" the FSM's eligibility for retroactive CRSC based on the effective date of the increased disability rating (through the date of his death) and determine if she is eligible for any arrears in pay that may be due as a result of the review.  She did not apply to the CRSC for survivor benefits as the CRSC letter suggests.

3.  The applicant provides a copy of the FSM's:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 363A (Certificate of Retirement)
* Certificate of Death
* two VA rating decisions
* Record of Marriage
* CRSC claim

CONSIDERATION OF EVIDENCE:

1.  The FSM was inducted on 5 August 1969.  He enlisted in the Regular Army (RA) on 12 August 1969 and continued to serve on active duty through 
31 August 1989.

2.  The FSM served in the Republic of Vietnam (RVN) from:

* 14 March 1970 through 17 February 1971
* 30 August 1971 through 7 August 1972

3.  The FSM's DD Form 214 shows he was honorably retired from active duty on 31 August 1989 under the provisions of Army Regulation 635-200 (Enlisted Separation - Enlisted Personnel), chapter 12, based on retirement for length of service.  He completed 20 years and 26 days of total active service.

4.  A DD Form 1300 (Report of Casualty), prepared on 19 September 2007, shows the FSM died on 14 August 2007.

5.  In support of her request, the applicant provides the following documents:

   a.  State of Ohio, Columbiana County, Certified Copy of Marriage Record, recorded on 20 September 1995, that shows the FSM and Joan M. H----- (the applicant) married on 18 September 1995;

   b.  State of South Dakota, Certificate of Death, issued on 23 February 2012, that shows the FSM died on 14 August 2007.  It also shows for:

    	(1)  Medical Certificate, Cause of Death (Parts I and II):

* Respiratory Failure
* Amyotrophic Lateral Sclerosis
* Arteriosclerotic Heart Disease
* Congestive Heart Failure
* Atrial Fibrillation

    	(2)  Marital Status:  Married;

    	(3)  Surviving Spouse's Name (If Wife, Maiden Name):  "Joan Y----"; and

    	(4)  Informant's Name:  Andrea B----, Relationship:  Daughter.


   c.  VA rating decision, dated 25 November 2011, that shows a special review of the FSM's claims file was mandated by federal court order in Nehmer
v. Department of VA.  Based on the VA's review of the evidence, they made the following decisions:
   
    	(1)  service connection for coronary artery disease associated with herbicide exposure was granted with a 30% evaluation effective 13 August 1996; 

    	(2)  an evaluation of 100% was assigned from 13 February 2002 to
14 August 2007; and
   
   	(3)  service connection for cause of death for purposes of entitlement to retroactive benefits was granted.

   d.  VA rating decision, dated 13 January 2012, that shows the applicant applied for dependency and indemnity compensation (DIC) benefits on
27 August 2007.  Based on a review of the FSM's claims file, the VA determined that the FSM's overall or combined rating was 30%, effective 13 August 1996; 40%, effective 18 October 2001; and 100%, effective 13 February 2002 (to
14 August 2007).  It also shows:

    	(1)  the estimated amount of retroactive benefits based on the FSM's claim for service connected compensation was $66,946.00;

    	(2)  the estimated amount of DIC retroactive benefits was $15,233.00, which included an additional amount for the month of death benefit of $1,112.00;

    	(3)  the VA had contacted the Defense Finance and Accounting Service (DFAS) and was informed that the applicant's Survivor Benefit Plan (SBP) overpayment was $10,980.00.  Therefore, the VA reduced her retroactive DIC benefit by that amount leaving a net payable amount of $4,243.00; 

    	(4)  the applicant was provided details of her monthly compensation entitlement spanning the period 1 September 1996 to 1 December 2011; and

    	(5)  The VA informed her that she may be eligible for full or partial concurrent receipt of VA compensation and military retired pay under the CRSC and/or Concurrent Retired and Disability Pay (CRDP) programs.  She was also informed that DFAS had been notified of the above award of VA compensation.  If DFAS determined the withholdings from her VA compensation should be retroactively adjusted due to CRSC/CRDP eligibility, DFAS would notify the VA to adjust her VA compensation accordingly.

   e.  CRSC claim that shows:
   
 		(1)  in the applicant's letter, dated 27 January 2012, she stated that the FSM was receiving CRSC.  She asked if the amount that the VA awarded her included retroactive pay from CRSC.  She added that a CRSC representative had informed her that if she did not receive a letter from the CRSC Branch, she would have to file a claim (with copies of the VA rating decisions) for retroactive benefits; and

 		(2)  the CRSC Branch, USA HRC, letter, dated 3 February 2012, shows the applicant's claim was considered.  The Chief, CRSC, informed the applicant they were unable to approve her claim because CRSC is not authorized for any of the survivor benefit provisions of Chapter 73, Title 10, U.S. Code (USC), per section 636, Public Law 107-314, dated 2 December 2002, and Title 10, USC Program Guidance, dated 21 May 2003.

6.  In connection with the processing of this case, coordination was made with the CRSC Division, USA HRC.  CRSC records provided show:

   a.  on 28 December 2004, the FSM's application for CRSC was considered under the CRSC-II Program Guidance with a determination that his Diabetes Mellitus, with a VA rating of 10%, was combat-related, effective 1 January 2004.  It also determined that his Impaired Hearing, with a VA rating of 40%, was service-related; however, it was non-combat related; and

   b.  on 3 February 2012, the VA rating decisions pertaining to the FSM, dated 25 November 2011 and 13 January 2012, were considered by the CRSC Branch as part of the applicant's request for retroactive CRSC pay.

7.  In connection with the processing of this case, coordination was made with DFAS.

   a.  a DFAS official confirmed that an audit of the FSM's pay record was conducted and that no further pay was due at the time of death, all CRSC amounts were paid, and the applicant was not entitled to SBP since her DIC exceeds the annuity gross pay; and

   b.  the DFAS official also provided a copy of a DFAS, Retired and Annuitant Pay, London, KY, letter, dated 13 March 2012, with a CRSC/CRDP Payment Audit sheet, that responded to the applicant's request for retroactive payments.  The letter confirmed that the FSM's account was paid to date.
8.  CRSC, as established by Title 10, USC, section 1413a, as amended, states that eligible members are retired veterans with combat-related injuries who meet all of the following criteria:

* Active, Reserve or National Guard with 20 years of creditable service, or permanent medical retiree, or Temporary Early Retirement Authority retiree
* receiving military retired pay
* have 10% or greater VA rated injury
* military retired pay is reduced by VA disability payments (VA Waiver)
* an individual must be able to provide documentary evidence that their injury was a result of one of the following:
* training that simulates war (e.g., training exercises)
* hazardous duty (e.g., flight, diving, parachute duty)
* an instrumentality of war (e.g., combat vehicles, weapons, Agent Orange)
* armed conflict (e.g., gunshot wounds (Purple Heart), punji stick injuries)

9.  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.

10.  Section 636, Public Law 107-314, dated 2 December 2002 and section 1413a, Title 10, USC Program Guidance provides, in part, that since CRSC is not retired pay, it is not subject to the provisions of section 1408, Title 10, USC, relating to payment of retired or retainer pay in compliance with court orders.  In addition, CRSC is not subject to any survivor benefit provisions of chapter 73, Title 10, USC.

11.  Title 38, USC, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service (i.e., service connected).  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  However, with regard to determining whether a medical condition is considered combat-related with entitlement to CRSC pay, there must be evidence of the condition having a direct, causal relationship to war or the simulation of war.  Thus, the VA's service connected disability rating may not necessarily coincide with the Service's CRSC rating.  Therefore, due to the two concepts involved, an individual's medical condition may qualify for VA service connected disability pay and benefits based on an evaluation by that agency, but not for CRSC pay.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the FSM's military records should be corrected to show eligibility for retroactive CRSC pay based on the effective date of the increased disability rating through the date of his death and a determination if she is eligible for any arrears in pay that may be due as a result of the review was carefully considered.

2.  Records show the VA awarded the FSM an overall or combined rating of 30%, effective 13 August 1996; 40%, effective 18 October 2001; and 100%, effective 13 February 2002.

3.  Records also show the CRSC Branch, USA HRC, determined the FSM's Diabetes Mellitus was combat-related, effective 1 January 2004.

4.  The evidence of record shows:

   a.  The CRSC Branch considered the applicant's request for retroactive payment of CRSC (i.e., from the date of the VA's increased disability rating through the date of the FSM's death).  Despite the VA determination, that decision did not change the previous decision made by the CRSC Branch with respect to the original determination made regarding the FSM's eligibility for CRSC pay.  On 3 February 2012, the USA HRC denied the applicant's claim for retroactive CRSC pay based on the fact that CRSC is not authorized for any of the survivor benefit provisions.  
   
   b.  The VA notified DFAS to determine if the withholdings from her VA compensation should be retroactively adjusted due to CRSC/CRDP eligibility. 

   c.  On 13 March 2012, DFAS confirmed to the applicant that an audit of the FSM's pay record was conducted and that the account was paid (current) as of that date.  On 5 September 2012, DFAS reconfirmed that no further pay was due at the time of the FSM's of death, all CRSC amounts were paid, and the applicant was not entitled to SBP since her DIC exceeds the annuity gross pay.

5.  Therefore, in view of all of the foregoing, there is no basis for granting 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)                                         AR20120005391



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ABCMR Record of Proceedings (cont)                                         AR20120005391



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