IN THE CASE OF:	  

		BOARD DATE:  30 July 2013

		DOCKET NUMBER:  AR20120021574 


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 reconsideration of his previous request for correction of his record to show, in effect, that his application for Combat-Related Special Compensation (CRSC) was approved.

2.  The applicant states the letter from Dr. NAOV was not considered by the Board in his original case proceedings.

3.  The applicant provides a letter from a Dr. NAOV, dated 1 December 2011.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120003109, on 18 October 2012.

2.  The letter from Dr. NAOV provided by the applicant is new evidence, which requires that the Board reconsider his request.

3.  On 3 April 1987, he enlisted in the Regular Army for a period of 4 years.  He served until he was honorably released from active duty on 7 November 1990 due to dependency.  He was transferred to the U.S. Army Reserve Control Group (Reinforcement) to complete his service obligation.

4.  He was subsequently transferred to a troop program unit in Puerto Rico.  On 11 February 2003 he was ordered to active duty in support of Operation Enduring Freedom as a motor transport operator.  He deployed to Iraq on 11 May 2003.

5.  The original physical evaluation board (PEB) proceedings are not contained in his official records.  However, his records show he was honorably retired on 29 June 2005 and placed on the Temporary Disability Retired List (TDRL) under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(2), by reason of temporary disability.

6.  On 7 February 2008, an informal PEB convened at Fort Sam Houston, Texas, to evaluate his condition.  He was diagnosed as having cervical degenerative disc disease without motor neurologic deficit, lumbar degenerative disc disease without motor neurologic deficit, and right knee pain with active flexion of 95 degrees and active extension of 25 degrees from neutral.  The PEB determined that he was physically unfit and recommended his permanent retirement with a combined 40 percent disability rating.  There is no indication in the proceeding to show his condition was deemed to have been incurred as a result of combat-related activities.  He concurred with the findings and recommendations of the PEB and waived a formal hearing of his case.

7.  On 27 March 2008, Orders D087-20 removed him from the TDRL and permanently retired him by reason of permanent physical disability effective 28 March 2008.  

8.  The applicant submits a letter from Dr. NAOV, dated 1 December 2011.  Dr. NAOV stated the applicant had a history of nervous problems.  He presented nightmares and flashbacks of traumatic incidents he had at war.  He also presented sleep problems; he awoke aggressive, throwing punches and wanting everybody on the floor.  He did not tolerate loud noises such as airplanes, helicopters, sirens, or fireworks because he entered in an anxious state that did not let him perform in a correct way.  He got upset when he was reminded of the traumatic events; sometimes he started crying.  He was a transport operator on the streets of Iraq on a daily basis and they were attacked almost on a daily basis with mortars, arms, or bombs.  He witnessed the death of fellow Soldiers and he remembered Soldiers who were seriously injured in those attacks. 

9.  On 2 December 2010, the applicant received a letter from the U.S. Army Human Resources Command (AHRC), Fort Knox, Kentucky, informing him that after reviewing all the evidence he had provided, AHRC was still unable to find justification to reverse the previous decisions made on his CRSC claim.
10.  A review of his official records shows that in each of his applications for CRSC, HRC determined that none of his conditions had been determined to be 
combat-related and therefore denied his requests.  It appears he was applying for CRSC for bilateral degenerative joint disease in both knees, gastro-esophageal reflux disease, hypertension, loss of balance, and depressive disorder.

11.  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.

12.  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 available evidence does not support the applicant's request for correction of his record to show his application for CRSC was approved.

2.  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.

3.  The applicant's contention that his medical condition was sustained while participating in combat operations has been carefully considered.  However, the evidence fails to show his condition was the result of combat-related action.  Without evidence to establish a direct, causal relationship between the applicant's disability and war or the simulation of war, there is an insufficient basis upon which to grant his request.

4.  In the absence of evidence to support his claim that his conditions were combat-related, there appears to be no basis for granting the applicant's 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 to amend the decision of the ABCMR set forth in Docket Number AR20120003109, dated 18 October 2012.



      _______ _  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)                                         AR20120021574



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ABCMR Record of Proceedings (cont)                                         AR20120021574



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