IN THE CASE OF:	  

		BOARD DATE:	  15 January 2013

		DOCKET NUMBER:  AR20120010681 


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, that the injury to his left hand and his hearing loss be considered disabilities that qualify for combat-related special compensation (CRSC).  

2.  The applicant states his hearing loss was caused by teletype noise during his military occupational specialty (MOS) training and weapons firing and the injury to his left hand was caused by a troop carrier, all considered instruments of war.

3.  The applicant provides copies of accident reports, hospital records, and Department of Veterans Affairs (VA) findings.

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.  The applicant initially enlisted in the Florida Army National Guard (FLARNG) on 3 April 1966.  He completed basic training at Fort Benning, GA and advanced individual training as a radio operator at Fort Jackson, SC and he returned to his FLARNG unit where he served as a dump truck driver, unit supply clerk, and armorer.

3.  On 13 May 1971, while attending annual training at Camp Blanding, FL, the applicant fractured his third finger on his left hand when he caught his ring on a strap while jumping off at the bath point.  He was treated at Fort Rucker, AL,
on 17 May 1971.

4.  He continued to serve through a series of continuous reenlistments and subsequently transferred to the Alabama Army National Guard (ALARNG).  He was appointed as a terrain analysis warrant officer one (WO1) on 25 November 1983 and he was promoted to the rank of chief warrant officer three (CW3) on  25 April 1992.

5.  On 11 March 1997, he was honorably discharged from the ALARNG and he was transferred to the U.S. Army Reserve Control Group (Reinforcement) where he remained until he was transferred to the Retired Reserve on 18 September 2007, at age 60.

6.  On 26 March 2004, the applicant was granted a 10% service-connection for hearing loss effective 4 September 2004.

7.  On 24 January 2012, he applied to the U.S. Army Human Resources Command (HRC) at Fort Knox, KY, for CRSC benefits for his hearing loss and injury to his left finger.  

8.  On 17 February 2012, HRC determined that there was no evidence presented to show that his injuries were related to a combat event and denied his application. 

9.  A review of the applicant's official records failed to reveal what his civilian occupation entailed and it failed to show the applicant was ever deployed.

10.  The Under Secretary of Defense for Military Personnel Policy provided policy guidance on the processing of CRSC appeals.  This guidance states 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.

11.  Title 10, U.S. Code, section 1413a (CRSC), provides that eligible members are those retirees who have 20 years of service for retired pay computation and who have disabilities that are the direct result of armed conflict, specially 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his injuries were incurred by instruments of war and/or while simulating combat operations has been noted and appears to lack merit.  The evidence of record clearly shows the applicant injured his finger when he jumped off a truck at the bath house during annual training.  He was not simulating combat conditions and there is no evidence to show the truck was being used in a peculiarly-military fashion at the time. 

2.  The fact that the VA in its discretion has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, change the decision that his conditions were not combat related.

3.  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.  In order to qualify for 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.

4.  Without evidence to establish a direct, causal relationship of the applicant's disability to war or the simulation of war or an instrumentality of war, there is insufficient basis in which to grant his 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)                                         AR20120010681



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ABCMR Record of Proceedings (cont)                                         AR20120010681



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