IN THE CASE OF:	  

		BOARD DATE:	  11 July 2013

		DOCKET NUMBER:  AR20120022913 


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 U.S. Army Human Resources Command (HRC), Fort Knox, KY decision to deny him combat-related special compensation (CRSC) for his ankle and shoulder injuries. 

2.  The applicant states:

* he was assigned to the 160th Special Operations Aviation Group during Operation Just Cause in Panama
* it was wet, windy, and cold; training was on a 2.5-Ton with a shelter for training; the cryptological equipment needed to be keyed (loaded) with classified information 
* he stepped out of the door (of the truck) on the tailgate and he slipped and dropped the equipment
* as he went to gather the equipment, he tripped on a camouflage peg/pole, falling on the equipment and hurting his ankle and shoulder
* he was taken to the Fort Campbell, KY, hospital and he was told he would need surgery and therapy
* he believes his ankle and shoulder injuries were combat-related

3.  The applicant provides:

* Letter to the Department of Veterans Affairs (VA), dated 20 November 2012
* 
Radiology report, dated 17 October 2011
* Authorization to wear the Joint Meritorious Unit Award
* Standard Form (SF) 600 (Chronological Record of Medical Care), dated 5 September 2012
* VA Examination for Housebound Status or Permanent Need for Regular Aid and Attendance
* SF 88 (Report of Medical History), dated 6 August 1999
* SF 93 (Report of Medical History), dated 6 August 1997
* Medical statement of vision loss, dated 22 February 2011
* Medical statement of shoulder and ankle problems, dated 9 February 2012
* Medical statement of surgical procedure, dated 7 March 2012
* Medical statement of follow-up to surgical procedure, dated 23 March 2012
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 31 January 1998
* DD Form 214 (Report of Separation from Active Duty) for the period ending 11 January 1979
* Multiple VA medical records and statements in support of claim
* Notice of Award from the Social Security Administration
* TRICARE eligibility letter
* CRSC denial letter from HRC, dated 2 July 2012

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 26 September 1956.  

2.  Having had prior enlisted service (16 January 1976 to 11 January 1979), the applicant enlisted in the Regular Army on 22 March 1979.  He held military occupational specialties 74C (Telecommunication Center Operator/Maintainer) and 31W (Telecommunications Operations Chief).

3.  He served through multiple reenlistments, in a variety of stateside or overseas assignments, and he attained the rank/grade of sergeant first class (SFC)/E-7.

4.  On 31 January 1998, he retired by reason of sufficient service for retirement and he was placed on the Retired List in his retired rank/grade of SFC/E-7 on
1 February 1998.

5.  Throughout the years, the VA awarded him service-connected disability compensation for:

* right shoulder capsulitis, fracture, nonunion of the acromion; 10 percent in 1998 and 20 percent in 2011
* exostosis left ankle talus, status post fibrous nonunion; 0 percent in 1998 and 0 percent in 2011
* residual scar, left ankle associated with exostosis, left ankle talus, status post fibrous nonunion; 0 percent in 1998 

6.  On 8 March 2013, he submitted a CRSC claim.  He claimed CRSC for exostosis left ankle talus, status post fibrous nonunion; and right shoulder capsulitis, fracture, nonunion of the acromion.  He indicated he felt these injuries met the guidelines for CRSC since they were incurred under conditions of simulating war. 

7.  On 30 March 2012, by letter, officials at HRC notified the applicant that there were no VA rating decision or medical records in his claim to confirm how each disability occurred.

8.  On 15 May 2012, after resubmission of the same claim, by letter, officials at HRC notified him that after a review of the medical records he submitted, there was no new evidence to show a combat-related event caused either condition.

9.  On 2 July 2012, by letter, officials at HRC notified the applicant that his appeal claim for CRSC for both conditions was previously requested and that he submitted no new evidence to show a combat-related event caused either condition.  The letter further notified him that this was his final disapproval.

10.  On 1 November 2012, by letter, officials at HRC notified the applicant that his appeal claim for CRSC for both conditions could not be further considered because he had already received a final determination of his CRSC claim.  He was ineligible for further consideration.  

11.  He submitted various recent (2011 and 2012) medical documents, surgical reports, and other records related to his surgical procedures.  None of the documents show his surgery was due to injuries sustained in combat or under conditions simulating war. 

12.  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 wasn’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 percent 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 criterion 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 a military retiree CRSC.  The military retiree must show that the disability was incurred while engaged in combat, while performing duties simulating combat conditions, or while performing specially hazardous duties such as parachuting or scuba diving.

2.  The applicant has submitted evidence to show his right shoulder and left ankle injuries are service-related.  However, he has not submitted any evidence that shows these conditions are combat-related.  He contends that his right shoulder and left ankle injuries occurred in a training exercise in Panama.  However, nowhere in his service/medical record is there a confirmation of such injuries or that if they occurred, his injuries occurred during combat or under conditions simulating war. 

3.  Without evidence to establish a direct, causal relationship of the applicant’s VA rated disabilities to war or the simulation of war, there is an insufficient evidentiary 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 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)                                         AR20120022913



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ABCMR Record of Proceedings (cont)                                         AR20120022913



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