IN THE CASE OF:	   

		BOARD DATE:	  25 July 2013

		DOCKET NUMBER:  AR20120022745 


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 to be granted combat-related special compensation (CRSC).

2.  The applicant states, in effect:

* he should be granted CRSC for Post-Traumatic Stress Disorder (PTSD) after being in combat in the Gulf War
* this condition was established as directly related to his military service
* the CRSC office has all documents to show he was in and a part of the Gulf War combat zone
* he was disapproved for CRSC benefits for PTSD, sleep loss, tinnitus, and hearing problems

3.  The applicant provides:

* CRSC denial letter, dated 2 October 2012
* Department of Veterans Affairs (VA) documentation and medical records 

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 enlisted in the Regular Army on 6 July 1977.  He served as a signal support systems specialist in Southwest Asia from 18 August 1990 to 
21 March 1991.  On 30 September 1997, he retired in the rank of sergeant first class.   

3.  There are no medical documents in the available records.

4.  On 13 December 2004, the VA granted him service-connected disability compensation for:

* PTSD (disability rating increased from 30% to 50%)
* patellofemoral syndrome, left knee with degenerative joint disease (DJD) (disability rating increased from 0% to 10%)
* tinnitus (10%)
* right knee tendonitis and degenerative joint disease (10%)
* left ear hearing loss (0%)

5.  On 21 January 2005, the U.S. Army Physical Disability Agency CRSC Division disapproved his request for reconsideration for CRSC.  He was advised his next recourse was to apply to this Board.

6.  On 14 July 2011, the U.S. Army Human Resources Command CRSC Branch reviewed his claim for CRSC and was unable to verify the following conditions as combat-related disabilities:

* right knee tendonitis and DJD
* patellofemoral syndrome, left knee with DJD
* lumbosacral strain
* PTSD
* frostbite residuals, left lower extremity
* frostbite residuals, right lower extremity
* tinnitus

7.  A letter, dated 2 October 2012, from the U.S. Army Human Resources Command CRSC Branch states:

* after reviewing all documentation in support of his claim, that office is unable to overturn the previous adjudications(s)
* the documentation submitted still shows no new evidence to link his requested conditions to a combat-related event
* this disapproval is final 

8.  He provides VA documentation which states the following conditions were service-connected, Gulf War incurred:

* PTSD
* lumbosacral strain
* right knee tendonitis and DJD
* tinnitus

9.  CRSC, as established by Title 10, U.S. Code, section 1413a, as amended, states that 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, 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.  CRSC benefits are equal to the amount of VA disability compensation offset from retired pay based on those disabilities determined to be combat-related.

DISCUSSION AND CONCLUSIONS:

1.  The applicant disagrees with the CSRC determination that his disabilities were not combat-related.

2.  CRSC is 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 CRSC to a military retiree.  The military retiree must show the disability was incurred while engaged in combat, while performing duties simulating combat conditions, or while performing specialty hazardous duties.

3.  The applicant has submitted evidence to show that his PTSD, lumbosacral strain, right knee tendonitis and DJD, and tinnitus were service related.  However, he has not submitted any evidence which would show that these conditions are combat-related.  The fact that he was in a theater of operations is insufficient, in and of itself, to warrant approval of CRSC.

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

5.  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 basis in 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)                                         AR20120022745





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ABCMR Record of Proceedings (cont)                                         AR20120022745



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