IN THE CASE OF: 

		BOARD DATE:	       25 October 2012

		DOCKET NUMBER:  AR20120007919 


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 award of Combat-Related Special Compensation (CRSC) for post-traumatic stress disorder (PTSD) and tension headaches.

2.  He states he received the CRSC final reconsideration request disapproval.  He submitted requests for CRSC three different times and they were denied.  His request was still disapproved for CRSC for his percentage related to his PTSD (50 percent) and his tension headaches (10 percent).

3.  He provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Department of Veterans Affairs (VA) Rating Decision, dated 27 December 2005
* letter from the VA, dated 30 December 2005
* three letters from the U.S. Army Human Resources Command (HRC), Fort Knox, KY, dated 18 March 2011, 20 December 2011, and 17 February 2012

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.  After having had prior service, the applicant enlisted in the Regular Army on   4 July 1975.  He retired for length of service on 31 May 1993.  His awards include the Southwest Asia Service Medal.

3.  Combat-Related Special Compensation, as established by Title 10, U.S. Code, section 1413a, provides for the payment of the amount of money a military retiree would receive from the VA for combat-related disabilities if it were not 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-percent 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.

4.  His VA Rating Decision, dated 27 December 2005, indicates his service-connected disability ratings were increased for irritable bowel syndrome from 30 percent to 60 percent, PTSD from 10 percent to 50 percent, and traumatic arthritis from 10 percent to 20 percent.  His evaluation of status post-removal of osteochondroma disability rating of 10 percent continued.

5.  On 13 August 2010, the HRC CRSC Branch denied the applicant's claim for CRSC based on PTSD.

6.  On 25 January 2011, the HRC CRSC Branch granted the applicant's claim for CRSC for irritable bowel syndrome rated at 60-percent disabling.  His claim for CRSC based on PTSD was denied.

7.  On 20 December 2011, the HRC CRSC Branch granted the applicant's claim for CRSC for irritable bowel syndrome rated at 30 percent (June 2004 to February 2005) and 60 percent (March 2005) disabling.  His claim for CRSC based on tension headaches and PTSD was denied.

8.  The HRC CRSC Branch again denied the applicant's claim for CRSC based on tension headaches and PTSD on 18 March 2011, 20 December 2011, and 17 February 2012.

9.  The Under Secretary of Defense for Military Personnel Policy provided policy guidance for the processing of CRSC appeals.  This guidance 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 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.  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's service record is void of evidence, and he has not provided sufficient evidence, which shows his tension headaches and PTSD were sustained during combat action or the simulation of war.  Although the evidence shows the applicant was, in fact, diagnosed with tension headaches and PTSD, there is no evidence in the available record that shows his conditions were sustained as a direct result of armed conflict, especially hazardous duty, training exercises that simulate war, or caused by an instrumentality of war.

3.  Without evidence to establish a direct, causal relationship to his VA-rated disabilities to war or the simulation of war, there is insufficient basis in which to grant his request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

___X____  ___X___  ___X____  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

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.



      _______ _  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)                                         AR20120007919



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ABCMR Record of Proceedings (cont)                                         AR20120007919



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