IN THE CASE OF:	  

		BOARD DATE:	  10 January 2013

		DOCKET NUMBER:  AR20120014768 


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 decision to deny him combat-related special compensation (CRSC).

2.  The applicant states the Army medical evaluation board (MEB) rated his injuries due to combat at 70 percent (70%) and the Department of Veterans Affairs (VA) rated his service-connected disability at 100% due to injuries he suffered in Afghanistan, due to combat.  Due to all these issues, he was medically retired and unable to work.  He was placed on the temporary disability retired list (TDRL) in December 2009.  While on the TDRL, he was getting paid by the Army.  However, as soon as he was medically retired due to his injuries, they stopped paying him.  

3.  The applicant provides:

* CRSC denial letter from the U.S. Army Human Resources Command, Fort Knox, KY (HRC-KNX), dated 20 June 2012
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* VA rating/appeal decision
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings) placing him on the TDRL
* Certificate awarding him the Army Commendation Medal
* TDRL PEB



CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born on 15 November 1961.  

2.  He enlisted in the U.S. Army Reserve (USAR) on 26 July 1985 and he initially held military occupational specialty (MOS) 67T (UH-60 Helicopter Repairer).  He reenlisted in the USAR on 19 March 1996.

3.  He enlisted in the Illinois Army National Guard (ARNG) on 19 March 1996.  He transferred to the Arizona Army National Guard (AZARNG) and served through multiple reenlistments or extensions, including multiple periods of mobilization, and he attained the rank/grade of staff sergeant (SSG)/E-6. 

4.  He served on active duty during the following periods:

* 12 February 1997 through 3 June 1998
* 18 March 1999 through 18 September 2002
* 19 September 2002 through 12 August 2003
* “13 June 2003” through 26 October 2006
* 27 October 2006 through 23 December 2007 (Served in Afghanistan from 19 January 2007 through 10 November 2007)
* 24 December 2007 through 26 February 2008

5.  On 19 August 2008, the VA awarded him service-connected disability compensation for:

* Post-Traumatic Stress Disorder (PTSD) with cognitive disorder, 70%
* Right shoulder degenerative joint disease, 20%
* Lumbar strain (spine arthritis), 20%
* Cervical spine degenerative disc disease, 20%
* Right knee strain and tendinitis, 10%
* Left knee strain and tendinitis, 10%
* Hypertension, 0%
* Allergic rhinitis, 0%
* Scar to left foot, residual of insect bite, 0%  

6.  On 20 October 2010, an informal PEB convened and found his medical condition of PTSD prevented him from performing the duties required of his grade and military specialty and determined he was physically unfit for service.  He was rated under the VA Schedule for Rating Disabilities (VASRD) and granted a disability rating of 70%.  The PEB recommended placing him on the TDRL.  He concurred.  The PEB noted that he experienced the horrors of war in Afghanistan and exhibited symptoms of irritability, sleep impairment, nightmares, anger, depressed mood, isolation, hyper-vigilance, and avoidance.

7.  On 4 November 2009, the U.S. Army Physical Disability Evaluation Agency (USAPDA) published Orders 308-22 discharging him from the AZARNG and placing him on the TDRL in the grade of E-5 effective 9 December 2009.  His retirement orders stated his disability is based on an injury or disease received in line of duty as a result of armed conflict.

8.  On 19 March 2012, a TDRL PEB convened and found his condition continued since being placed on the TDRL.  He still had the medical condition of PTSD following his exposure to combat stressors while deployed in Afghanistan.  This condition continued to preclude his performance of duties.  He remained unfit to reasonably perform the duties required of his grade and military specialty.  However, his condition was considered sufficiently stable for final adjudication.  He was rated 70% disabled under the VASRD code applicable for his medical condition.  The PEB recommended that he be permanently retired.  He concurred and waived his right to a formal hearing of his case.

9.  It appears an official of the USAPDA approved the PEB's findings and recommendation on behalf of the Secretary of the Army.  It also appears an order was issued to remove him from the TDRL and on the next day, permanently retiring him.  

10.  On 14 February 2012, he submitted a claim for CRSC.  In response, on 29 February 2012, by letter, an official at HRC-KNX notified him that his claim for CRSC was denied as follows:

* Lumbar strain with degenerative joint disease, no evidence in claim to show that a combat-related event caused condition
* Degenerative disc disease of the cervical spine native, no evidence in claim to show that a combat-related event caused condition
* Right shoulder degenerative joint disease with rotator cuff tendonitis, no evidence in claim to show that a combat-related event caused condition
* PTSD with cognitive disorder, no evidence in claim to show that a combat-related event caused condition
* Right knee strain and tendinitis, no evidence in claim to show that a combat-related event caused condition
* Left knee strain and tendinitis, no evidence in claim to show that a combat-related event caused condition

11.  On 26 April 2012, in response to his request for reconsideration, by letter, an official at HRC-KNX notified him that his claim for CRSC was denied as follows:
* Lumbar strain with degenerative joint disease, previously requested, no new evidence in claim to show that a combat-related event caused condition
* Degenerative disc disease of the cervical spine native, previously requested, no new evidence in claim to show that a combat-related event caused condition
* Right shoulder degenerative joint disease with rotator cuff tendonitis, previously requested, no new evidence in claim to show that a combat-related event caused condition
* PTSD with cognitive disorder, previously requested, no new evidence in claim to show that a combat-related event caused condition
* Right knee strain and tendinitis, previously requested, no new evidence in claim to show that a combat-related event caused condition
* Left knee strain and tendinitis, previously requested, no new evidence in claim to show that a combat-related event caused condition

12.  On 20 June 2012, again by letter, an official at HRC-KNX notified him that his request for reconsideration of his CRSC claim and all the evidence he submitted was reviewed but there was no justification to reverse the previous decision.  The letter states there was no evidence provided to show a combat-elated event caused his condition(s).  This disapproval was final.

13.  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 was 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% 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 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 PEB rating and the VA rating decision indicates his PTSD was incurred in combat; however, that decision appears to have been based on his exposure to stressors.  He did not prove such relationship between his PTSD and combat.  The fact that he was in a theater of operations and was exposed to stressors is insufficient, in and of itself, to warrant approval of CRSC.

3.  CRSC determinations require evidence of a direct, causal relationship to the military retiree’s VA rated disabilities to war or the simulation of war. 

4.  Without evidence to establish a direct causal relationship to the applicant’s VA rated disabilities to war or the simulation of war there is insufficient evidence 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)                                         AR20120014768





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ABCMR Record of Proceedings (cont)                                         AR20120014768



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