IN THE CASE OF:	  

		BOARD DATE:	  4 January 2013

		DOCKET NUMBER:  AR20120010031 


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 military records to show his injuries were combat related.

2.  The applicant states he has applied three times for Combat-Related Special Compensation (CRSC) and has been denied.  He argues that his DD Form 199 (Physical Evaluation Board (PEB) Proceedings) states his injuries were combat related.

3.  The applicant provides copies of:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Memorandum to the PEB, dated 10 May 2011, with three enclosures
* DD Form 199, dated 13 May 2011
* Letter, CRSC Branch, U.S. Army Human Resources Command (HRC), dated 19 April 2012

CONSIDERATION OF EVIDENCE:

1.  At the time of his application, the applicant was retired from the Regular Army in the rank/pay grade of staff sergeant/E-6 due to permanent physical disabilities.  He had completed 15 years, 2 months, and 25 days of creditable active duty service.

2.  A DA Form 2166-8 (Noncommissioned Officer Evaluation Report) for the period 1 July 2008 to 22 February 2009 reports that the applicant rotated to the Joint Readiness Training Center (JRTC) in October 2008.

3.  A medical evaluation board (MEB) dated 26 October 2010, reported that the applicant had an onset of chronic lower back pain when he fell from a military truck during training at the JRTC, located at Fort Polk, Louisiana, in October 2008.

4.  A DA Form 199, dated 13 May 2011, shows that the applicant's physical disabilities, as described below, were reconsidered and determined to have been incurred during conditions simulating war.  The PEB was approved by the Secretary of the Army on 6 June 2011.

VASRD*
DESCRIPTION
PERCENTAGE
JUSTIFICATION/COMMENTS
5241
Post laminectomy syndrome (status post laminectomy/disectomy L4-L5 with residual lumbar arthralgia).  Injury occurred when he fell off a truck during pre-deployment training at Fort Polk in October 2008.
40
Condition is unfitting because of significantly impaired ability to climb in and out of military aircraft.
8520
Left lower extremity radiculopathy (bilateral lumbar radiculopathy). Injury occurred when he fell off a truck during pre-deployment training at Fort Polk in October 2008.
10
Condition is unfitting because of significantly impaired ability to climb in and out of military aircraft.
8520
Right lower extremity radiculopathy (bilateral lumbar radiculopathy). Injury occurred when he fell off a truck during pre-deployment training at Fort Polk in October 2008.
0
Condition is unfitting because of significantly impaired ability to climb in and out of military aircraft.
*VASRD:  VA Schedule for Rating Disabilities



5.  Orders 158-0146, Fort Hood, Texas, dated 7 June 2011, released the applicant from assignment and duty because of a physical disability incurred while entitled to basic pay.  These orders further state his disability resulted from a combat related injury as defined in Title 26, U.S. Code, section 104.

6.  In a CRSC decision letter, dated 24 January 2012, HRC denied the applicant CRSC.  The letter states HRC was unable to verify that his disabilities were combat related.  The letter informed the applicant that his personal statements regarding how his injuries occurred in relation to combat or training were not admissible as evidence for determining combat-related disabilities.


VASRD
DESCRIPTION
PERCENTAGE
JUSTIFICATION/COMMENTS
9435
Mood Disorder (9434-9435)
10
No evidence to verify that mood disorder was caused by a combat-related event.
8520
Left Lower Extremity Radiculopathy
10
Documentation does not support evidence of injury while simulating war
8520
Right Lower Extremity Radiculopathy
0
Documentation does not support evidence of injury while simulating war
7804
Scars
10
This disability is related to another disability which is not combat-related
5241
Post Laminectomy syndrome, L4-L5
40
Documentation does not support evidence of injury while simulating war.
7.  In a CRSC decision letter, dated 15 March 2012, HRC again denied the applicant CRSC.  This letter states HRC was unable to verify that his disabilities were combat related.  The letter informed the applicant that his documentation did not provide a linkage between his conditions and a combat related event.

VASRD
DESCRIPTION
PERCENTAGE
JUSTIFICATION/COMMENTS
9435
Mood Disorder (9434-9435)
10
Previously requested: No new evidence provided to show combat-related event caused condition.
8520
Left Lower Extremity Radiculopathy
10
Previously requested: No new evidence provided to show combat-related event caused condition.
8520
Right Lower Extremity Radiculopathy
0
Previously requested: No new evidence provided to show combat-related event caused condition.
7804
Scars
10
Previously requested: No new evidence provided to show combat-related event caused condition.
5241
Post Laminectomy syndrome, L4-L5
40
Previously requested: No new evidence provided to show combat-related event caused condition.
8.  In a CRSC decision letter, dated 19 April 2012, HRC rendered a final denial of the applicant's request for CRSC.  This letter states HRC was unable to verify that his disabilities were combat related.  The letter informed the applicant that his documentation did not provide a linkage between his conditions and a combat related event.

VASRD
DESCRIPTION
PERCENTAGE
JUSTIFICATION/COMMENTS
9435
Mood Disorder (9434-9435)
10
Final disapproval - Previously requested: No new evidence provided to show combat-related event caused condition.
8520
Left Lower Extremity Radiculopathy
10
Final disapproval - Previously requested: No new evidence provided to show combat-related event caused condition.
8520
Right Lower Extremity Radiculopathy
0
Final disapproval - Previously requested: No new evidence provided to show combat-related event caused condition.
7804
Scars
10
Final disapproval - Previously requested: No new evidence provided to show combat-related event caused condition.
5241
Post Laminectomy syndrome, L4-L5
40
Final disapproval - Previously requested: No new evidence provided to show combat-related event caused condition.


9.  CRSC, as established by Title 10, U.S. Code, section 1413a, 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 weren't for the statutory prohibition for a military retiree to receive a VA disability pension.

	a.  Payment is made by the Military Department, not the VA, and is tax free.

	b.  Eligible members are those retirees who are entitled to retired pay (other than by reason of section 12731b of this title and have a combat-related disability that is the direct result of armed conflict, especially hazardous military duty, training exercises that simulate war, or caused by an instrumentality of war.

	c.  Qualified disabilities must be compensated by the VA and rated at least 10-percent disabling.

	d.  Military retirees who are approved for CRSC must have waived a portion of their military retired pay because CRSC requires the Military Department to return to the military retiree a portion of the waived retired pay.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show his injuries were combat related and qualifies for CRSC.

2.  The available evidence clearly shows that the applicant had applied three times to HRC for CRSC.  All three times he was denied on the basis that the evidence he provided was not sufficient to show his injuries were the result of a combat-related event.

3.  However, further examination of the applicant's Army Military Human Resource Record (AMHRR) shows that during the time of his injury, he was participating in combat-related training at JRTC.  The applicant's subsequent PEB, as approved by the Secretary of the Army, clearly connects his injuries to this training and identifies his injuries as having occurred during conditions simulating war.  This documentation is a matter of official record and is more than sufficient to establish that the applicant's injuries occurred during a combat-related event.

4.  In view of the above, it would be appropriate to grant the applicant's request.




BOARD VOTE:

____x___  ____x___  ___x_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  showing his claim for Combat-Related Special Compensation was approved; and

	b.  if otherwise eligible, paying him any monies due as a result of this correction.




      _______ _   _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)                                         AR20120010031





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ABCMR Record of Proceedings (cont)                                         AR20120010031



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