IN THE CASE OF:	  

		BOARD DATE:	  28 May 2013

		DOCKET NUMBER:  AR20120018216 


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) for his back injury.

2.  The applicant states his record shows he received a 20% disability rating and it should be 40% disability retirement due to an injury he sustained while deployed in Afghanistan.  He falls under chapter 61-early retirement.  His retired pay was waived due to his receipt of a 90% service-connected disability rating from the Department of the Veterans Affairs (VA).  He was applying for CRSC because his retired pay was waived due to his VA rating.  He was denied CRSC benefits.

 3.  The applicant provides:

* DA Form 2173 (Statement of Medical Examination and Duty Status)
* letter from the Army Review Boards Agency (ARBA)
* 2011 Orders 138-0002
* denial letter from the U.S. Army Human Resources Command CRSC Branch

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Pennsylvania Army National Guard (PAARNG) on 6 August 2001 with prior enlisted service.  He completed training and was awarded military occupational specialty 92G (Food Service Operator).

2.  He was ordered to active duty in support of Operation Enduring Freedom and entered active duty on 22 February 2003.  

3.  He provides a copy of a DA Form 2173, dated 25 October 2003, which shows that on 2 September 2003 he reinjured his lower back while traveling in discomfort on a C130.  He was taken to the Landstuhl Regional Medical Center on 9 September 2003 and subsequently underwent physical therapy.  

4.  On 1 March 2005, a Medical Evaluation Board referred him to a Physical Evaluation Board (PEB).

5.  On 23 September 2005, an informal PEB found him unfit for low back pain and assigned a 10% disability rating.  On 13 October 2005, he non-concurred with the findings of the PEB and requested a formal hearing.

6.  On 15 November 2005, a formal PEB affirmed the informal PEB's findings.  On 5 December 2005, the PEB reconsidered their findings and found that the new evidence did not overcome the preponderance of the evidence.  Accordingly, the PEB recommended he be discharged with severance pay based on a 10% disability rating.

7.  Upon review, the U.S. Army Physical Disability Agency (USAPDA) determined that the findings and recommendations of the PEB were correct.  

8.  Accordingly, he was honorably discharged from active duty on 24 February 2006 by reason of disability with severance pay.  

9.  He was honorably discharged from the PAARNG on 24 February 2006 by reason of being medically unfit for retention.

10.  On 22 March 2007, the Army Board for Correction of Military Records denied his request for a higher disability rating than that given by the PEB.

11.  A Record of Proceedings, Physical Disability Board of Review, dated 2 February 2011, recommended his prior PEB determination be modified and his discharge with severance pay be recharacterized to reflect a permanent disability retirement with a combined 40% rating effective as of the date of his prior medical separation.  The review stated, "There is a history of the Soldier's bunk breaking and the Soldier rolling off.  Three months later, the morning after a flight to Qatar, the Soldier has [sic] severe back pain."

12.  The applicant provides the following:

* a letter from ARBA, dated 7 February 2011, advising him of the correction of his records to show he was separated with a disability retirement with a combined disability rating of 40% effective 24 February 2006
* Orders 138-0002 issued by Headquarters, U.S. Army Garrison, Fort Meade, MD, on 18 May 2011, permanently retiring him on 24 February 2006 with a 40% combined disability rating

13.  In a letter, dated 19 May 2011, the USAPDA advised him that his original separation order had been revoked and an order permanently retiring him had been published and made retroactive back to the day he was separated with disability severance pay as directed by ARBA.

14.  In a letter, dated 29 August 2012, the CRSC Branch advised him that it was unable to overturn the previous adjudication(s) and the documentation he submitted still did not meet the criteria for CRSC under the current program guidance.

15.  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.  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.

16.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered.  He has submitted documentation showing he was treated for an injury to his lower back that he contends is combat-related.  However, there is no evidence of record or indication that these injuries were the result of a combat-related event.  The evidence of record confirms the injury to his lower back occurred after his bunk broke causing him to roll off it and was later reinjured during a flight.  In February 2011, his records were corrected to reflect a permanent disability retirement with a combined 40% rating effective 24 February 2006, the date of his prior medical separation.  

2.  As stated above, the CRSC criteria are specifically for those military retirees who have combat-related disabilities.  The military retiree must show that 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.  The applicant has failed to provide documentation to show he meets any of these requirements.

3.  He appears to confuse service connection for VA purposes with CRSC eligibility.  These are not necessarily the same.  If they were the same, CRSC would be automatic for those military retirees with VA disability pensions.  Service connection for VA purposes means the VA has determined that the disability was incurred or aggravated during military service.  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 of his back injury to war or the simulation of war, there is an insufficient basis on 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)                                         AR20120018216



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ABCMR Record of Proceedings (cont)                                         AR20120018216



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