BOARD DATE:	  17 October 2013

		DOCKET NUMBER:  AR20130002195 


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 approval of combat-related special compensation (CRSC) for migraine headaches.

2.  The applicant states:

	a.  The final decision concerning migraine headaches was reached before he submitted the appeal paperwork.

	b.  The CRSC Board made this decision erroneously from another package he submitted requesting consideration of his Department of Veterans Affairs disability compensation for gastro-reflux and hemorrhoids, dated 6 August 2012.  He never requested reconsideration of the CRSC Board's decision concerning migraine headaches.  Upon their response, the board also listed a final decision concerning the headaches.

	c.  He submitted the proper appeal paperwork for this condition on 24 November 2012 and was subsequently informed of this final improper decision.

3.  The applicant provides:

* letters from the CRSC Branch
* letter concerning his request for gastro-reflux and hemorrhoids consideration
* letter requesting reconsideration for migraine headaches
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 was born on 8 October 1951.  On 30 November 1993, he retired in the rank of first sergeant after completing over 24 years of creditable active service.

3.  He provides a letter from the U.S. Army Human Resources Command (HRC) CRSC Branch, dated 23 August 2012, which shows his claims for CRSC for the following conditions were previously awarded with a total combined percentage of 90 percent:

* bilateral plantar fasciitis with plantar heel spur
* bilateral right knee
* bilateral left knee
* degenerative disc disease, L4/L5, L5-S1, with limitation of motion
* diabetes mellitus type II
* bilateral pes planus
* bilateral peripheral neuropathy and radiculopathy, left lower extremity
* post-traumatic stress disorder
* tinnitus

4.  The HRC CRSC Branch was unable to verify the following conditions as combat-related disabilities:

* erectile dysfunction
* hemorrhoids
* gastro esophageal reflux with history of duodenal ulcer
* hypertension
* renal insufficiency
* migraine headaches

5.  The HRC CRSC Branch also states:

* after reviewing all documentation in support of his claim, the CRSC Branch is unable to overturn the previous adjudications
* the documentation submitted still shows no new evidence to link his requested conditions to a combat-related event
* this disapproval is considered final
* he may appeal to this Board

6.  He provides a letter to the HRC CRSC Branch, dated 24 November 2012, wherein he disagrees with their decision that his migraine headaches were not combat related.  In summary, he states his migraine headaches were related to his combat in Vietnam and simulated combat assignments.

7.  A letter from the HRC CRSC Branch, dated 10 December 2012, states:

* records in the database indicate he received a final CRSC determination letter, dated 23 August 2012
* that decision was final and CRSC cannot process his reconsideration request
* his only recourse is to apply to this Board

8.  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.  It appears the applicant disagrees with the CRSC determination that his migraine headaches 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.  Although he claims his migraine headaches were related to his combat in Vietnam and simulated combat assignments, he has not submitted any evidence which would show this condition is combat related.  The fact that he served in a combat 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 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 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)                                         AR20130002195



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ABCMR Record of Proceedings (cont)                                         AR20130002195



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