IN THE CASE OF:	  

		BOARD DATE:	  17 September 2013

		DOCKET NUMBER:  AR20120022647 


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 correction of his military records to show his injuries were combat-related for retroactive retired pay.

2.  The applicant states that his request for Combat-Related Special Compensation (CRSC) was denied on 26 May 2009.  He is appealing to this Board for reconsideration.

3.  The applicant provides:

* letter from the U.S. Army Human Resources Command (HRC), dated 1 November 2012
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 1 July 1969
* Letter Orders Number 08-1232548, U.S. Army Reserve Components Personnel and Administration Center, dated 15 August 1973
* DD Form 256A (Honorable Discharge Certificate), dated 1 September 1973
* Standard Forms 600 (Chronological Record of Medical Care), dated 12 and 16 September 1991
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 29 September 1991
* Department of Veterans Affairs (VA) Rating Decision, dated 20 June 2002
* VA Service-Connected Compensation Decision, dated 22 June 2002
* memorandum from the Puerto Rico Army National Guard (PRARNG), dated 8 December 2002, subject:  Notification of Eligibility for Retired Pay at Age 60
* memorandum from the PRARNG, dated 4 February 2004, subject:  Request for Discharge
* National Guard Bureau Form 23B (Army National Guard Retirement Points History Statement), prepared 18 June 2004
* Defense Finance and Accounting Service-Cleveland Form 7220/148 (Retiree Account Statement), effective 2 December 2011
* VA Medical Records, dated between 2002 and 2012

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's records show his date of birth as 27 April 1944.

3.  On 8 December 2002, the PRARNG informed the applicant that he was eligible for retired pay upon application at age 60.

4.  Records show the applicant reached 60 years of age on 27 April 2004.

5.  On 19 August 2005, the U.S. Army Physical Disability Agency (USAPDA) CRSC Division notified the applicant that his request for CRSC did not meet the preliminary eligibility criteria because his Reserve retired pay was not being offset/reduced by his VA waiver.

6.  On 8 February 2007, the USAPDA CRSC Division informed the applicant that his request for reconsideration for CRSC could not be granted due to a lack of supporting evidence necessary to prove a link between his service-related disability identified under VA Schedule for Rating Disabilities (VASRD) code 7903 as hypothyroidism rated at 30-percent disabling and a combat-related event.

7.  In a CRSC decision letter, dated 2 August 2007, the USAPDA CRSC Division denied the applicant's request for reconsideration due to an inability to verify that his disability was combat-related.

8.  In a CRSC decision letter, dated 15 October 2007, the HRC CRSC Division denied the applicant CRSC.  HRC stated they were unable to verify that his disabilities were combat-related.  The letter informed the applicant that his documentation did not provide a link between his conditions and a specific combat-related event.

VASRD
DESCRIPTION
PERCENTAGE
JUSTIFICATION/COMMENTS
7903
Hypothyroidism Thyroid
30
Documentation submitted does not show accident or incident to connect disability to any combat-related event.
9.  In a CRSC decision letter, dated 26 May 2009, the HRC CRSC Division rendered a final denial of the applicant's request for CRSC.  This letter states HRC was unable to verify that his disabilities were combat-related.  The letter again informed the applicant that his documentation did not provide a link between his conditions and a combat-related event.

VASRD
DESCRIPTION
PERCENTAGE
JUSTIFICATION/COMMENTS
7903
Hypothyroidism Thyroid
30
Hypothyroidism is the term for overactive tissue within the thyroid gland, resulting in overproduction and thus an excess of circulating free thyroid hormones.  This condition does not meet the criteria for Combat-Related Special Compensation.
10.  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.

	a.  Payment is made by the Military Department, not the VA, and is tax free.

	b.  Eligible members are those retirees who are entitled to retired pay (other than by reason of Title 10, section 12731b, and have a combat-related disability that is the direct result of armed conflict, especially hazardous military duty, training exercises that simulate war, or caused by an instrumentality of war.

	c.  Qualified disabilities must be compensated by the VA and rated at least 10-percent disabling.

	d.  Military retirees who are approved for CRSC must have waived a portion of their military retired pay because CRSC requires the Military Department to return a portion of the waived retired pay to the military retiree.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show his injuries were combat-related and qualifying for CRSC.

2.  The available evidence clearly shows the applicant applied three times to USAPDA and HRC for CRSC.  All three times he was denied on the basis that the evidence he provided was not sufficient to show his injuries were the result of a combat-related event.

3.  The applicant has not provided documentary evidence that clearly links specific combat event(s) to the conditions claimed in CRSC application.  His service medical records were not made available for review.  Hypothyroidism is the clinical term for overactive tissue within the thyroid gland resulting in overproduction and thus an excess of circulating free thyroid hormones.  This condition does not meet the criteria for CSRC.

4.  In view of the above, the applicant's request should be denied.

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 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)                                         AR20120022647



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ABCMR Record of Proceedings (cont)                                         AR20120022647



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