IN THE CASE OF:	  

		BOARD DATE:  5 February 2013

		DOCKET NUMBER:  AR20120011860 


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 Combat Related Special Compensation (CRSC).  

2.  The applicant states he has been denied CRSC for a service connected disability three times; however, he now has evidence that shows his CRSC request should have been approved under "Instrumentality of War" provisions.  

3.  The applicant provides the documents identified in item 9 (In support of this application, I submit as evidence the following attached documents) of his application; and the additional documents he submitted under a cover letter, dated 2 January 2013, in support of his request.  

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 6 August 1981.  He was awarded military occupational specialty 13B (Cannon Crewmember).  He was retired on 1 April 1998 due to temporary disability.  

2.  The applicant’s medical evaluation board/physical evaluation board proceedings are not available.  However, Department of Veterans Affairs (VA) documents he provided indicate he was medically retired due to the aftereffects of severe lead poisoning, incurred while assigned as a rifle range instructor and supervisor for 3 years.  He was apparently later permanently retired for disability.  

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.

4.  On 22 March 2012, the CRSC Division, U.S. Army Human Resources Command, Fort Knox, Kentucky, denied the applicant's claim for CRSC based on the following conditions:

	a.  Benign Growth of the Endocrine System;

	b.  Condition of Nervous System; 

	c.  Hiatal Hernia; 

	d.  Hypothyroidism; 

	e.  migrane; and 

	f.  Seizure Disorder-general.

5.  In its 22 March 2012 letter, the CRSC Division stipulated that this was the final disapproval.  It further indicated CRSC had been previously requested and no new evidence was provided to show a combat-related event caused the condition.  The medical notes and treatment records regarding lead poisoning as a result of rifle range duties were entered into the VA records on 9 February 2012 and should have been made available to CRSC officials during their deliberation on this appeal.  

6.  The applicant provides a doctor's statement from a physician at the VA Outpatient Clinic, Grand Rapids, Michigan, dated 12 April 2012, in which the doctor states after reviewing the applicant's medical records and the latest report on adult lead poisoning, she finds it likely the applicant's lead poisoning is from military exposure as a rifle range instructor.  

7.  The Under Secretary of Defense for Military Personnel Policy has provided policy guidance for processing 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 or caused by an instrumentality of war.

8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states the term "instrumentality of war" refers to a device primarily designed for military service and intended for use in such service at the time of the occurrence of the injury.  It may also be a device not designed primarily for military service if use of or occurrence involving such a device subjects the individual to a hazard peculiar to military service.  This use or occurrence differs from the use or occurrence under similar circumstances in civilian pursuits.

DISCUSSION AND CONCLUSIONS:

1.  The CRSC criteria are specifically for those military retirees who have combat-related disabilities.  Incurring disabilities in a theater of operations, in training exercises, or in this case as a result of peacetime duties at a rifle range, are not in and of themselves, sufficient to grant a military retiree CRSC.  In order to qualify for CRSC, the military retiree must show the disability met the established disability criteria and was incurred while engaged in combat, while performing duties simulating combat conditions, or while performing especially hazardous duties such as parachuting or scuba diving, or caused by an instrumentality of war.

2.  The applicant's contention that his medical condition(s) was sustained while serving as a rifle range instructor and therefore was caused by an instrumentality of war has been carefully considered.  However, rifle ranges are not devices (or occupations) primarily designed for military service.  Rifle ranges do not subject an individual to a hazard peculiar to military service as rifle ranges are used in almost exactly the same circumstances in civilian pursuits.  

3.  Regrettably, in view of the foregoing there is an insufficient evidentiary basis to support 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)                                         AR20120011860



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ABCMR Record of Proceedings (cont)                                         AR20120011860



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