IN THE CASE OF:	  

		BOARD DATE:  23 January 2014

		DOCKET NUMBER:  AR20130007256 


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:

* reversal of the U.S. Army Human Resources Command's (HRC) decision to deny him combat-related special compensation (CRSC) for his left knee injury 
* reserve service credit and a DD Form 214 (Report of Separation from Active Duty) for his reserve service from 15 September 1960 to 24 May 1971

2.  The applicant states he was injured in 1970 while serving in the U.S. Army Reserve (USAR) and he was not issued a DD Form 214 for this period of service. He entered active duty in May 1971.  Additionally, he provided documentation to prove his reserve status from 15 September 1969 to 24 May 1971 but his evidence was rejected by HRC.

3.  The applicant provides:

* Letter issued by the U.S. Army Reserve Officers' Training Corps (ROTC) Instructor Group, Northfield, VT, dated 1 April 1969
* DA Form 336-R (Acknowledgement of Understanding of Service Requirements Army ROTC Financial Assistance Program), dated 9 May 1969
* DD Form 4 (Enlistment Contract-Armed Forces of the United States), dated 15 September 1969
* 
Letter issued by Headquarters, Norwich University Corps of Cadets, subject:  Detached Service, dated 13 April 1970
* ROTC Advanced Camp Cadet Evaluation
* DD Form 214 for the period ending on 25 September 1975
* Orders T-02-801776, issued by the USAR Personnel Command, St. Louis, MO, dated 3 June 1999
* DD Form 214 (Certificate of Release of Discharge from Active Duty) for the period ending on 4 June 1996
* AHRC Form 249-2-E (Chronological Statement of Retirement Points), dated 5 July 2007
* Orders P02-901979, issued by HRC, dated 19 February 2009
* Six pages of various training information, articles, and photographs
* Letter, subject:  Temporary Restricted duty, dated 13 December 1972
* Letter, subject:  Letter of Appreciation, dated 15 December 1972
* 27 pages of various medical records and documents
* 5 statements from former ROTC cadets
* Department of Veterans Affairs (VA) rating decision, dated 2 September 1976
* Letter from the VA and VA rating decision, dated 28 and 30 March 2009
* Various CRSC applications and denials
* Excerpt from a legal case

CONSIDERATION OF EVIDENCE:

1.  The applicant's record contains a DA Form 3036-R, dated 9 May 1969, indicating he entered into a scholarship agreement with the U.S. Army.  He signed this agreement acknowledging he understood that "…in computing length of service for any purpose, an officer appointed under the Senior ROTC program of instruction may not be credited with enlisted service for the period covered by this ROTC training."

2.  On 15 September 1969, he enlisted in the USAR as an ROTC cadet.  His 
DD Form 4 shows he had prior ROTC training and had already completed Military Science (MS) I and MS II.

3.  He provided a letter, issued by the Norwich University Corps of Cadets, dated 13 April 1970, that shows he was selected/given permission to participate in mountain training for mountain and cold weather freshman in Bolton, VT from
17 -19 April 1970.

4.  His record contains a DA Form 61 (Application for Appointment), dated 7 October 1970, that shows he requested appointment as a commissioned officer in the Regular Army.  He indicated he held the rank of private, he was an ROTC cadet, and he was scheduled to graduate on 29 May 1971.

5.  Letter Orders Number R-5-05-124, issued by Headquarters, First U.S. Army, Fort George G. Meade, MD, dated 11 May 1971, ordered him to active duty and appointed him to the rank of second lieutenant (2LT) effective 29 May 1971.

6.  His medical records indicate he "twisted" his left knee on 24 October 1971; however, there is no mention of how the injury occurred.

7.  His record contains a Standard Form (SF) 519a (Radiographic Report), dated 9 November 1971, that stated "Left Knee:  Views show free bony fragment within the left knee joint; no other abnormalities are seen; most likely secondary to recent trauma."

8.  He provided an SF 502 (Narrative Summary), dated 3 January 1972, wherein his military physician stated:

	a.  The applicant, a 22 year old 2LT, "stated that on 1 November 1969 while mountain climbing in VT he fell, twisting his left knee.  The joint was aspirated of blood and he was treated with an Ace bandage.  Since that time [Applicant] has been having intermittent effusions and discomfort in the knee.  An arthrogram performed [on] 8 November 1971 demonstrated a tear of the medial meniscus."

	b.  "On 9 December 1971 the left knee was explored with findings of a bucket handle tear of the medial meniscus and an ossicle at the site of the anterior tibial spine.  The torn portion of the meniscus plus the bony fragment was removed.  The post operative course was entirely uneventful…"

	c.  "…at the time of discharge [on 3 January 1972] the [Applicant] had a full range of motion and was lifting 35 [pounds]."

9.  He provided a letter, dated 13 December 1972, wherein he stated, on 8 December 1972, he reinjured his left knee while participating in the V Corps Field Training Exercise (FTX)-Caravan I.  He went to the hospital in Bad Kreuznach, Germany, later that evening.  The medical officials who examined him indicated he had possible cartilage damage and scheduled him for follow-up appointments.

10.  He provided two SFs 600 (Health Record – Chronological Record of Medical Care) and two sick slips from medical officials at the hospital in Bad Kreuznach, Germany, dated between 11 December 1972 and 31 January 1973, that shows he complained he had been experiencing knee pain since his surgery.  Doctors performed examinations and tests to rule out a meniscus tear and post-operative traumatic arthritis.  A left knee arthrograph showed the residuals of his old injury; however, this test did not show any new injuries.  The results of this test were normal.

11.  He was honorably discharged from active duty on 25 September 1975.  His DD Form 214 shows his rank as first lieutenant (1LT) and his date of rank as
9 October 1972.  His DD Form 214 also shows he completed 4 years, 3 months, and 27 days of total active service.  He was not credited with any prior active or inactive service.

12.  On 26 September 1975, he was appointed as a Reserve commissioned officer in the rank of 1LT.

13.  He provided a letter from the VA, dated 2 September 1976, that stated his left knee condition and subclinical hepatitis were service-connected; however, they were both less than 10 percent disabling and compensation was not payable.  These conditions were both rated as 0 percent disabling.

14.  His record contains a DA Form 5181-R (Screening Note of Acute Medical Care), dated 12 September 1991.  He was seen at the Winder Health Clinic, Fort Benning, GA.  He indicated he was experiencing pain, discomfort, and swelling of his left knee as a result of running during physical training (PT).  The medical notes state the applicant complained of left knee pain for two days since he has been running on uneven pavement.  He states he had a medial menisectomy in 1971 due to an injury he sustained falling off a tank.  It appears he was treated with Motrin, a knee sleeve/brace, and no PT.

15.  His record contains a Notification of Eligibility for Retired Pay at Age 60 
(20-year letter), dated 25 May 1993, informing him he had completed the required years of service and he would eligible for retired pay upon application at age 60.

16.  Orders P02-901979, issued by HRC, dated 19 February 2009, retired him in the rank of lieutenant colonel and placed him on the retired list on 13 August 2009.

17.  His record contains a VA rating decision, dated 29 March 2009, that shows the VA awarded him:

* 10 percent (not listed as service-connected) for post operative meniscectomy, left knee with degenerative joint disease
* 20 percent service-connection for instability of the left knee
* 0 percent service-connection for surgical scar of the left knee

18.  On 11 May 2012, he submitted a CRSC claim to HRC.  He claimed CRSC for a left knee disorder.  He indicated he felt his injury met the guidelines for CRSC since the injury was caused by an instrument of war and was incurred under conditions simulating war in Mannheim, Germany:

	a.  As part of his application he submitted a timeline of his injuries wherein he stated:

		(1)  In November 1969, during Senior ROTC, he was participating in a "Ranger Style" training exercise that involved mountain training, rappelling, and free style climbing.  He accidently fell and twisted his knee and he was evacuated off the slope in a litter basket stretcher to receive medical treatment.

		(2)  In October 1971, while assigned to Mannheim, Germany, his unit was in the field conducting Tank Gunnery Qualification and other training in Grafenwoehr, Germany.  He was on an M60A1 Battle Tank assisting one of the unit's tank commanders and his crew in going over the steps in preparation for the tank gunnery tables.  When he was finished he jumped off the front of the tank to dismount, twisted his left knee, and fell to the ground.  He later had surgery for this injury.

		(3)  From November to December 1972, while serving in Bad Kreuznach, Germany, his unit participated in the V Corps FTX-Caravan I.  During this simulated combat activity he reinjured his knee on 8 December 1972.

	b.  He provided five witness statements from individuals stating they attended ROTC with him at Norwich University.  The individuals in these statements indicate that the applicant was injured during a ranger-style mountain/cold weather training course that occurred from 17 -19 April 1970.

	c.  He provided three pages of photographs and information about the mountain/cold weather training he participated in while in ROTC.  The 

information stated the training program was "entirely voluntary," and included skiing, snowshoeing, mountaineering, and survival training.

	d.  He provided a news letter, dated 18 September 1971, describing his training in Grafenwoehr, Germany.

	e.  He provided an excerpt from a medical chart, dated 17 April 2006, that outlines the medical condition of his left knee and the treatment he was receiving at that time.

	f.  He provided an excerpt from a court case stating that:

* a veteran is a person who served on active duty in the military and has been discharged under conditions other than dishonorable
* service-connected disabilities are disabilities incurred or aggravated in the line of duty while on active duty
* veterans receive benefits for service-connected disabilities
* Senior ROTC training programs of fewer than 4 weeks constitute inactive duty for training (IDT)
* The term active military service includes active duty for training (ADT) and IDT
* service-connected injuries resulting in a disability are compensable

19.  On 9 July 2012, HRC denied his CRSC claim and stated the CRSC office was unable to verify his 10 percent (not listed as service-connected) disability rating for post operative meniscectomy, left knee with degenerative joint disease and his 20 percent service-connection for instability of the left knee as combat-related disabilities.

20.  On 27 August 2012, he resubmitted his CRSC claim with additional information; however, HRC denied his claim on 18 September 2012 because the CRSC office was still unable to verify that either of his left knee conditions were combat-related disabilities.

21.  On 8 October 2012, he resubmitted his CRSC claim with additional information; however, HRC denied his claim on 22 October 2012 because the CRSC office was still unable to verify that either of his left knee conditions were combat-related disabilities.

22.  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 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 isabling.  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.

23.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The purpose of the separation document is to provide the individual with documentary evidence of his or her military service.  The DD Form 214 is a summary of a Soldier’s most recent period of continuous active duty.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.  Except as provided in paragraph 2-1b, a DD Form 214 will be prepared for each Soldier as indicated:

	a.  Active Army Soldiers on termination of active duty by reason of administrative separation (including separation by reason of retirement or expiration term of service (ETS)), physical disability separation, or punitive discharge under the Uniform Code of Military Justice.

	b.  Reserve Component (RC) Soldiers completing 90 days or more of continuous active duty for training (ADT), Full-Time National Guard Duty (FTNGD), active duty for special work (ADSW), temporary tours of active duty (TTAD), or Active Guard Reserve (AGR) service.

	c.  RC Soldiers separated for cause or physical disability regardless of the length of time served on active duty.

	d.  Army National Guard (ARNG) and USAR Soldiers mobilized under
Title 10, U.S. Code, sections 12301(a), 12302, or 12304, and ARNG Soldiers called into Federal service under chapter 15, or Title 10, U.S. Code, section 12406, regardless of length of mobilization, when transitioned from active duty.  A Soldier who reports to a mobilization station and is found unqualified for active duty will be excluded from this provision.  He or she will only receive a DD Form 220 (Active Duty Report).

	e.  RC Soldiers completing initial ADT that results in the award of an MOS, even when the active duty period was less than 90 days.  This includes completion of advanced individual training (AIT) under ARNGUS Alternate Training Program or USAR Split Training Program.

DISCUSSION AND CONCLUSIONS:

1.  With respect to his Senior ROTC training and the injury he claims to have received to his left knee during this period:

	a.  His medical record contains a document dated 3 January 1972, showing he told an Army medical official "that on 1 November 1969 while mountain climbing in VT he fell, twisting his left knee… and he was treated with an Ace bandage."  This medical record simply stated he hurt his knee mountain climbing, it did not indicate whether or not he was mountain climbing as part of a training exercise or if he was mountain climbing because he was engaging in a leisure activity, pastime, or hobby.

	b.  The narrative he submitted as part of his CRSC application stated that in November 1969, during Senior ROTC, he was participating in a "Ranger Style" training exercise that involved mountain training, rappelling, and free style climbing.  He accidently fell and twisted his knee and he was evacuated off the slope in a litter basket stretcher to receive medical treatment.

	c.  He provided five witness statements from individuals stating they attended ROTC with him at Norwich University.  The individuals in these statements indicate the applicant was injured during a ranger style mountain/cold weather training course that occurred from 17 -19 April 1970.

	d.  In his application to the ABCMR he stated he initially injured his knee in 1970.

	e.  His records and the documentation he provides do not paint a clear picture of when his injury occurred because they indicate the initial injury to his left knee occurred sometime between 1 November of 1969 and 17-18 April 1970.

	f.  His record does not include any medical evidence showing he was injured during an ROTC training exercise or that he received medical treatment as a result of this injury.

	g.  The cold weather mountain training he participated in was not considered ADT or IDT.  The information he provided regarding his training stated that the 

training was "entirely voluntary."  Furthermore, the letter he provided, issued by the Norwich University Corps of Cadets, Northfield, VT did not order or direct him to participate in "mandatory" military training, it was simply a letter that authorized/gave him permission to participate in voluntary training.  This training was not mandatory military training simulating war, it was voluntary mountain/
cold weather training. 

	h.  Finally, prior to his enlistment, he signed an ROTC contract wherein he acknowledged he understood he would not be credited with enlisted service for the period covered by his ROTC training.  During the period of his ROTC training he held the enlisted rank of private and there is no evidence of record to show he served on active duty or was ordered to participate in IDT or ADT.

	i.  The applicant is not entitled to receive credit for reserve service during the period of his participation in the Senior ROTC program.  The DD Form 214 is issued to cover periods of active duty.  He did not enter active duty until 29 May 1971 when he was appointed to 2LT.  Based on the foregoing, he was not entitled to credit for the time period covered by the Senior ROTC program, a DD Form 214, or CRSC benefits for this period since it is unclear if or when he may have sustained his injury.

2.  With respect to his assertion that he is he is entitled to CRSC for an injury he sustained in October 1971 while conducting Tank Gunnery Qualification and other training in Grafenwoehr, Germany, he received medical treatment in 1991 and told the attending physician that he injured his knee when he fell off a tank; however, on his CRSC application he indicated that he dismounted an M60A1 Battle Tank by jumping off the front of the vehicle, he twisted his left knee, and he fell to the ground.

	a.  His military records do not contain any evidence to show how his knee was injured.  His medical records simply indicate that he twisted his knee and that the injury, a bony fragment in his knee, was most likely caused by a recent secondary trauma.

	b.  There is no evidence of record and he has not provided sufficient evidence or argument to show that a tank/instrument of war caused an injury to his knee (he did not hit his knee on the tank and/or the tank did not strike him on the knee).

	c.  He has not provided sufficient evidence to show he personally participated in the training exercise simulating war, in Grafenwoehr, Germany or that his knee 

was injured as a direct result of this training exercise.  Nevertheless, the statements he made in his CRSC application do not indicate that he had been engaged in a stringent war-like training exercise at the time he injured his knee.  His statements indicate he had been engaged in briefing Soldiers on an upcoming portion of training.  His statements also indicate that he injured his knee because he chose to jump off a tank and that his impact with the ground caused him to twist and injure his knee.

	d.  His record does not contain sufficient evidence and he has not provided sufficient evidence or argument to show his knee injury was the direct result of a training exercise that simulate war or that his injury was caused by an instrumentality of war.

3.  With respect to his assertion he is entitled to CRSC for reinjuring his left knee on 8 December 1972, at Bad Kreuznach, Germany, while his unit was participating in the V Corps FTX-Caravan I:

	a.  His record does contain a letter wherein he indicated he reinjured his left knee while participating in the V Corps FTX - Caravan I.  However, his medical records show he received a left knee arthrograph.  The arthrograph showed the residuals of his old injury/surgery but did not reveal or detect any new injuries.  The treating medical officials indicated the results of this test were normal.

	b.  After a thorough medical examination by qualified medical officials, his examinations/test results revealed he had not suffered a new injury to his knee; therefore, he is not entitled to CRSC.

4.  In view of the foregoing, 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)                                         AR20130007256



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ABCMR Record of Proceedings (cont)                                         AR20130007256



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