IN THE CASE OF:

		BOARD DATE:  24 October 2013

		DOCKET NUMBER:  AR20130004139 


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 combat-related special compensation (CRSC) for hearing problems.

2.  The applicant states:

	a.  He believes the decision by the U.S. Army Human Resources Command (HRC) to deny his claim of CRSC for the hearing loss in his left ear and tinnitus to be in error.  The Department of Veterans Affairs (VA) has conceded acoustic trauma and the medical evidence shows the loss was present before he left the service.

	b.  The 21 May 2012 letter from HRC shows that the denial of CRSC was due to "no official evidence indicating a combat award or exposure to weapons, tanks or aircraft..." and "no evidence in the claim to show that a combat related event caused the condition."  His entire military career was served in combat units, such as Cavalry, Armor and Mechanized Infantry, and his assignments were either on the line or as a master gunner or training noncommissioned officer (NCO) all of which were exposed to live fire.  The denial was arbitrary and capricious.

3.  The applicant provides:

* DA Form 2860 (Claim for CRSC), dated 30 April 2012
* HRC CRSC denial letters, dated 21 May, 31 July, and 16 October 2012
* DD Form 2216 (Hearing Conservation Data), dated 2 December 1985
* DD Form 2215 (Reference Audiogram), dated 20 October 1983
* DD Form 2215, dated 29 December 1993
* Standard Form 513 (Medical Record Consultation Sheet), dated 29 April 1999
* page 3 of medical examination for retirement
* DA Form 2-1 (Personnel Qualification Record – Part II)

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 retired in the rank/grade of sergeant first class/E-7 on 31 March 2002.

3.  He applied for CRSC for right shoulder tendiopathy, cervical strain, lumbar strain, tinnitus, and left ear hearing loss.  He has consistently been denied CRSC for tinnitus and left ear hearing loss.  The reasons listed for the denials are:

	a.  Left Ear Hearing Loss:  "No official evidence indicating a combat award or exposure to weapons, explosions, tanks or aircraft in your claim."

	b.  Tinnitus:  "No evidence in claim to show that a combat-related event caused condition."

4.  The applicant provides:

	a.  copies of his CRSC request and three denial letters from HRC,

	b.  medical documents reflecting the status of his hearing, and

	c.  page 3 of a medical examination for his retirement showing he had a mild hearing loss and should protect his hearing.

5.  The Under Secretary of Defense for Military Personnel Policy provided policy guidance for processing CRSC appeals.  The guidance states there must be evidence of the condition having a direct, causal relationship to war or the simulation of war for a condition to be considered combat related.

6.  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 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.

	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 he is eligible for CRSC for his hearing loss and tinnitus because the VA has conceded acoustic trauma and the medical evidence shows the loss was present before he left the service.

2.  The applicant's requests for CRSC were denied because the available evidence failed to show his medical conditions were combat related.  He has not provided any additional documentary evidence to indicate otherwise.

3.  The CRSC criteria are 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 the disability was incurred while engaged in combat or while performing duties simulating war.

4.  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 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)                                         AR20120000988



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130004139



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1