BOARD DATE:	  11 October 2012

		DOCKET NUMBER:  AR20120006282 


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 U.S. Army Human Resources Command, Fort Knox, KY (HRC-KNX) decision to deny him combat-related special compensation (CRSC) for a knee injury. 

2.  The applicant states:

* The Army CRSC mistook his 1966 knee injury, the one that existed prior to his service and which was surgically repaired in 1966, with the disability caused by trauma sustained during Ranger School
* His knee injury resulted in a disability caused by a trauma sustained during Ranger school
* The injury occurred during Ranger school which is a simulation of war
* His initial and reconsiderations claims for CRSC explained that he had no disability prior to Ranger school
* He was in a superb, unimpaired physical condition on 1 December 1970
* He did have a disability after the January 1971 Ranger school examination and treatment
* The Department of Veterans Affairs (VA) cites his Ranger school injury and treatment as the basis for his subsequent disability ratings
* He meets all CRSC qualification factors
* He has been denied CRSC compensation on three separate occasions and has thus exhausted his administrative remedy


3.  The applicant provides:

* CRSC claim
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Notification of Eligibility for Retired Pay at Age 60
* Retirement orders
* Multiple VA rating decisions
* Previous letter from the Army Board for Correction of Military Records
* CRSC denial letters from HRC-KNX, dated 1 February 2012, 2 April 2010, and 15 December 2009

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born on 27 September 1948.

2.  The available records show he attended Texas A&M University, Arlington, TX and graduated in or about May 1970.  His medical records contain a Standard Form 513 (Clinical Record - Consultation Sheet), dated 4 June 1969, that shows:

* he sustained a fracture to the right patella when his right patella dislocated and he fell on his knee
* he had surgery for removal of some cartridge; he had occasional stiffness
* his leg was stable with full range of motion 
* his right patella had an old injury that had healed

3.  He underwent an appointment physical on 4 June 1969 at Fort Sill, OK.  His medical records contain a Standard Form 89 (Report of Medical History) that shows he disclosed he had a right kneecap fracture around 1966 and that he had cartilage removed, at age 18, by an unknown doctor at St. Joseph Hospital, Dallas, TX. 

4.  His Standard Form 88 (Report of Medical Examination) listed the entry "injury to right patella, old, healed."  The military doctor found him qualified for appointment.  

5.  He was appointed as a Regular Army commissioned officer and entered active duty on 23 May 1970.  He held an infantry specialty.  He resigned his Regular Army commission and was honorably discharged from active duty on 20 August 1973 and was appointed in the U.S. Army Reserve (USAR). 

6.  He was appointed in the Army National Guard (ARNG) and executed an oath of office on 8 April 1974.  He subsequently served in a variety of positions within the ARNG and/or the USAR and attained the rank of lieutenant colonel.  

7.  On 13 January 1992, the USAR Personnel Center, St. Louis, MO, issued him a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).

8.  On 15 July 2008, HRC published official orders placing him on the Retired List in his retired rank of LTC effective 27 September 2008, his 60th birthday.  

9.  Throughout the years, the VA awarded him service-connected disability compensation for tinnitus, residuals of right knee injury with degenerative arthritis, traumatic arthritis, and tender scar.

10.  On 18 November 2009, he submitted a CRSC claim.  He claimed that on 9 January 1971 he reinjured his right knee during mountain climbing, rappelling, and mountain patrol training, all considered simulation of war. 

11.  On 15 December 2009, by letter, officials at HRC-KNX notified the applicant that their office was unable to verify his knee condition, scars, and tinnitus were caused by a combat-related event.  There was no evidence in his claim to show that a combat-related event caused these conditions.   He was further advised that there was no physical evaluation board, medical evaluation board, line of duty investigation, VA rating decision, or any other documentation to show his disabilities were combat-related as defined by law.

12.  On 2 April 2010, by letter, officials at HRC-KNX notified the applicant that his claim for CRSC for PTSD was previously requested and that he submitted no new evidence to show a combat-related event caused his condition.  

13.  On 1 February 2012, by letter, officials at HRC-KNX notified the applicant of final disapproval regarding his claim for CRSC as he submitted no new evidence to show a combat-related event caused his conditions.  

14.  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.

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 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.  The applicant has submitted evidence to show that his right knee injury, scar to the right knee, and tinnitus are service related.  However, he has not submitted any evidence which would show that these conditions are combat related.  He contends that he injured his knee during Ranger school in 1971; however, the evidence of record clearly shows he sustained his knee injury in 1966, prior to his service.  There is no medical evidence to show he incurred a second injury in 1971.

3.  Without evidence to establish a direct, causal relationship of the applicant’s VA rated disabilities to war or the simulation of war, there is an insufficient basis in 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)                                         AR20120006282



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120006282



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1