IN THE CASE OF:	   

		BOARD DATE:	  14 November 2013

		DOCKET NUMBER:  AR20130002848 


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, correction of his military records to show his injuries were combat-related.

2.  The applicant states his disagreement with the findings and decision of the Combat-Related Special  Compensation (CRSC) board at the U.S. Army Human Resources Command (HRC).  Throughout his military career, he trusted the Army to be a steward for all of his records, to include his military medical records.  Because of the system, process, and this trust, there was never a requirement or need communicated to him that he should make a complete copy of his medical records.  This oversight epitomizes his overall feelings of being a victim of the system which has failed him.  This failure embodies a lack of full disclosure and communication time and time again by those persons/organizations responsible for providing accurate and timely information essential for making life and career altering decisions while navigating through a transition process filled with countless briefings designed to equip the individual and his family with the tools necessary for a successful transition to civilian life.

3.  The applicant discusses the difficulties he had as a result of a policy change requiring retirement physicals to be completed at the Walter Reed Army Medical Center (WRAMC) vice at Fort Belvoir.  The resulting backlog at WRAMC contributed to scheduling and coordination problems.  For him, these problems caused various administrative and logistical coordination mistakes which proved costly.  As a result, his sleep study appointment had to be rescheduled for 
6 September 2005, which was 6 days after his retirement date.  Therefore, any on-going evaluations being performed by the Department of Veterans Affairs (VA) in conjunction with the Department of the Army for the purposes of assessing any service-connected disabilities would be severely flawed.

4.  The applicant states that, despite numerous attempts, he could not obtain his medical records for the years 1981 through 1992.  He contends that these records would show the injuries he received from airborne operations during Gallant Eagle and Gallant Knight exercises, while assigned to the 82nd Airborne Division.  It was not until 2003 that the pain and discomfort associated with those injuries elevated to a level where he had to seek further medical involvement.  In lieu of obtaining these medical records, he has acquired statements from three individuals who have first-hand account and personal knowledge of his airborne missions.

5.  The applicant provides copies of:

* Tab A: VA letter, dated 29 August 2012
* Tab B: Disabled American Veterans (DAV) Office printout, dated 30 July 2012
* Tab C: Email between applicant and the CRSC Certifying Officer at HRC, dated 12 June 2012
* Tab D: CRSC letter from HRC to applicant, dated 25 April 2012
* Tab E: VA letter to applicant, dated 30 March 2012
* Tab F: CRSC letter from HRC to applicant, dated 14 February 2012
* Tab G: Memorandum from applicant to CRSC, HRC, dated 19 January 2012
* Tab H: Email between CRSC, HRC, and applicant, dated 1 March 2012
* Tab I: VA Rating Decision, dated 11 February 2011
* Tab J: CRSC letter to the applicant, dated 4 February 2011
* Tab K: Progress Notes/Radiology Reports, VA Medical Record,          dated 18-19 January 2011
* Tab L: Memorandum for Record, Request for CRSC, dated 21 December 2010, with enclosures (DD Forms 214, DD Form 2860, CRSC Decision Letter)
* Tab M: Emails between applicant and Judge Advocate, dated 2 and        14 December 2010
* Tab N: Email statement of support, dated 5 December 2010
* Tab O: Email statement of support, dated 23 November 2010
* Tab P: Email statement of support, dated 9 December 2010
* Tab Q: VA Rating Decision, dated 17 March 2006
* Tab R: DA Form 67-8 (Officer Evaluation Report) ending on 27 February 1989
* Tab S: Certificates of appreciation/service for Gallant Eagle 86, Gold Thrust 86, Caber Dragon 87, and Gallant Knight 88
* Tab T: Slides, Procedures for Obtaining Your Retirement Physical Exam, undated
* Tab U: 180 Day Chart for transition process, undated
* Tab V: Letter to the applicant from the Director, Sleep Disorders Center (SDC), WRAMC, dated 7 May 2001
* Tab W: Polysomnogram Report, SDC, WRAMC, dated 6 September 2005

CONSIDERATION OF EVIDENCE:

1.  On 12 August 1981, the applicant was commissioned in the U.S. Army Reserve and entered active duty.  On 1 March 1985, he was promoted to captain, pay grade O-3.  On 30 September 1992, he was discharged under the Voluntary Early Transition Program (SSB) with an honorable characterization of service and appointed in the U.S. Army Reserve (USAR) Control Group (Reinforcement).

2.  The applicant has provided five certificates that clearly identify him as having participated in various operational exercises between 1986 and 1988.

3.  On 27 August 1995, the applicant, a USAR officer, again entered active duty.  On 12 April 2000, he was promoted to lieutenant colonel, pay grade O-5.  On 
31 August 2005, he was retired and transferred to the USAR Retired Reserve due to sufficient service for retirement.  He had completed a total of 21 years, 
1 month, and 23 days of active duty.

4.  In a VA Rating Decision, dated 17 March 2006, the VA made the following decisions concerning the applicant's claim for increased disabilities:

	a.  Service connection for acne keloidalis with xertic dermatitis over the extremities was granted at 30 percent disabling, effective 1 September 2005.

	b.  Service connection for right rotator cuff strain was granted at 10 percent disabling, effective 1 September 2005.

	c.  Service connection for status post lateral meniscus tear, right knee, was granted at 10 percent disabling, effective 1 September 2005.

	d.  Service connection for obstructive sleep apnea was granted at zero percent  disabling effective 1 September 2005.

	e.  Service connection for onychomycosis with tinea pedis was granted at zero percent disabling.

5.  On 23 November 2010, a retired brigadier general, U.S. Army, made a statement in an email addressed to the applicant.  In essence, it stated the author commanded the newly-formed 82nd Aviation Brigade from 1987 through 1989, during the time when the applicant was assigned to the unit.  Most airborne qualified Soldiers were required to jump at least every 30 days in order to maintain their proficiency.  The author believes that the applicant was assigned at the time as the signal officer within the brigade operations section and participated in these monthly airborne operations.  There were many occasions when jumps were made under less-than-favorable conditions and many received injuries, mostly to their knees, shoulders, and spine.  As a highly-motivated and dedicated leader, the applicant never complained about his injuries and maintained his daily activities.  Looking back on how they tended to drive on, limping along the way, their priorities were misguided.  The author himself had numerous operations and knee replacements.  He contends that he is 100 percent certain that the applicant's injuries were a direct result of participation in so many airborne missions.  The author fully supports the applicant's request to have his knee and shoulder injuries recognized as being combat training related.

6.  On 5 December 2010, a retired major general, U.S. Army, made a statement in an email addressed to the applicant.  In essence, it stated the author was the applicant's supervisor in the brigade S-3 (Operations), 82nd Airborne Division, from April 1988 to February 1989.  The applicant served as the brigade communications and electronics officer.  He was required to participate in various airborne operations.  He was required to maintain his parachuting proficiency a minimum of every 30 days.  He was also required to participate in several emergency deployment readiness exercises and to parachute into various objective areas under less- than-favorable weather conditions, day or night.  On any of these parachute operations, some Soldiers experienced various injuries that could involve any part of the body, but most commonly involved the ankles, knees, shoulders or back.  The applicant was usually one of the first to parachute into an area in order to establish the critical communications for the command group.

7.  On 9 December 2010, a retired colonel, U.S. Army, made a statement in an email addressed to the applicant.  In essence, it stated the author had served as a jumpmaster within the 35th Signal Brigade from 1986 to 1989.  He has known the applicant for more than 25 years, including at Fort Bragg, NC, from 1986 to 1989.  He contends that the applicant's injuries were certainly the direct result of his participation in so many airborne operations.


8.  The Progress Note, dated 18 January 2011, as provided by the applicant, states that he has previously had pain in his right shoulder and knee from military service.  At the time, he was also having pain in his left shoulder and knee as well.  Previously he had a meniscal tear in his right knee. "did work with PT [physical training].”  He described himself as "anti-surgery."  He always had been active in sports (plays tennis daily) and in the military jumped out of airplanes.

9.  In a CRSC decision letter, dated 4 February 2011, HRC denied the applicant CRSC.  The letter states HRC was unable to verify that his disabilities were combat-related.  The letter informed the applicant that law and Department of Defense guidance requires investigation of how an injury took place by verifying medical and/or personnel records.


VASRD
DESCRIPTION
PERCENTAGE
JUSTIFICATION/COMMENTS
5019
Right Rotator Cuff Strain (5201-5019)
10
No evidence in claim to show that a combat-related event caused condition.
5010
Status post lateral meniscus tear, right knee (5260-5010)
10
No evidence in claim to show that a combat-related event caused condition.
10.  In a VA Rating Decision, dated 11 February 2011, the VA made the following decisions concerning the applicant's claim for increased disabilities:

	a.  Evaluation for obstructive sleep apnea was increased from zero percent  to 50 percent disabling effective 4 March 2011.

	b.  Evaluation for acne keloidalis with xertic dermatitis over the extremities was continued at 30 percent disabling.

	c.  Evaluation of right rotator cuff strain was continued at 10 percent disabling.

	d.  Evaluation of status post lateral meniscus tear, right knee, was continued at 10 percent disabling.

	e.  Evaluation of onychomycosis with tinea pedis was continued at zero percent disabling.

11.  In a CRSC decision letter, dated 14 February 2012, HRC again denied the applicant CRSC.  This letter states HRC was unable to verify that his disabilities were combat-related.  The letter informed the applicant that his documentation did not provide a linkage between his conditions and a specific combat-related event.

VASRD
DESCRIPTION
PERCENTAGE
JUSTIFICATION/COMMENTS
5019
Right Rotator Cuff Strain (5201-5019)
10
Previously requested: No new evidence provided to show combat-related event caused condition.
5010
Status post lateral meniscus tear, right knee (5260-5010)
10
Previously requested: No new evidence provided to show combat-related event caused condition.
12.  In a CRSC decision letter, dated 25 April 2012, HRC 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 informed the applicant that his documentation did not provide a linkage between his conditions and a combat-related event.

VASRD
DESCRIPTION
PERCENTAGE
JUSTIFICATION/COMMENTS
5019
Right Rotator Cuff Strain (5201-5019)
10
Final disapproval - Previously requested: No new evidence provided to show combat-related event caused condition.
5010
Status post lateral meniscus tear, right knee (5260-5010)
10
Final disapproval - Previously requested: No new evidence provided to show combat-related event caused condition.
13.  The applicant's service medical records are not available for review.

14.  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 section 12731b of this title) 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 to the military retiree a portion of the waived retired pay.

DISCUSSION AND CONCLUSIONS:

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

2.  The available evidence clearly shows that the applicant had applied three times to 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 sufficient documentary evidence that clearly links specific combat event(s) to the conditions claimed in CRSC application.  His service medical records were not available for review.

4.  The VA decision ratings do not provide any evidence showing his injuries were related to any specific combat training events.

5.  The three emails offered in support of the applicant's contentions do not clearly state that the applicant had ever experienced an injury during any of his parachute jumps.  These statements only discuss that such injuries were common due to the unfavorable circumstances of the exercises.  The author's belief that his injuries were certainly the result of parachute jumps is not sufficient to overcome a lack of corroborating documentary evidence.

6.  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 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)                                         AR20130002848





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ABCMR Record of Proceedings (cont)                                         AR20130002848



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