IN THE CASE OF:	  

		BOARD DATE:  19 December 2013

		DOCKET NUMBER:  AR20130008120 


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) decision denying him combat-related special compensation (CRSC).

2.  The applicant states he is currently receiving CRSC at the rate of 10 percent.  However, he has since been awarded an increase in his Department of Veterans Affairs (VA) rating to 30 percent.  He has twice submitted his request for reconsideration but was told his 30-percent disability is not combat-related.  He disagrees.  His medical records clearly show combat-related and his VA records show service-connected.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 27 August 1979.  He held an armor military occupational specialty.  He served through multiple reenlistments in a variety of stateside and overseas assignments and he attained the rank/grade of first sergeant (1SG)/E-8.

2.  On 31 August 2005, he retired and he was placed on the Retired List in the rank/grade of 1SG/E-8 on 1 September 2005.


3.  The VA awarded him service-connected disability compensation for:

* bilateral tinnitus, 10 percent, effective 1 September 2005
* chrondromalacia, right knee, 0 percent, effective 1 September 2005
* gastroesophageal reflux disorder, 0 percent, effective 1 September 2005

4.  On 23 January 2006, he submitted a CRSC claim.  The CRSC application does not indicate what condition(s) he claimed.

5.  On 23 February 2006, officials at HRC notified the applicant that based on the documentation he provided to verify his CRSC claim, the CRSC office was unable to find any official documentary evidence to verify his service-connected illness/injury (tinnitus) as being combat-related.

6.  On 27 March 2007, HRC officials notified him that based on the information he resubmitted, the CRSC office was able to verify that his tinnitus was caused by a combat-related situation.  He was approved for CRSC at the rate of 10 percent.  As for the condition of limited flexion of the right knee, there was no documentation in his claim to show a combat-related event caused this condition.

7.  On 22 January 2013, the VA awarded him service-connected disability compensation for:

* bilateral tinnitus, 10 percent, effective 1 September 2005
* chrondromalacia, right knee, 10 percent effective 13 July 2012
* gastroesophageal reflux disorder, 10 percent, effective 13 July 2012

8.  On 28 February 2013, HRC officials notified him that his CRSC claim for bilateral tinnitus had been approved at the rate of 10 percent effective September 2005.  However, with respect to his chondromalacia of the right knee, this claim was also previously requested but there was no documentation in his claim to show a combat-related event caused this condition.

9.  On 26 March 2013 after resubmission of the same claim for chondromalacia of the right knee, HRC officials notified the applicant that his previous CRSC claim was disapproved because no new evidence was submitted to link his conditions to a combat-related event.  He was also notified that this was his final disapproval and he could apply to this Board.

10.  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.  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 the disability was incurred while engaged in combat, while performing duties simulating combat conditions, or while performing especially hazardous duties such as parachuting or scuba diving.

2.  The applicant has submitted evidence to show his chondromalacia of the right knee is service-related.  However, he has not submitted any evidence that shows this condition is combat-related.  Nowhere in his available records is there confirmation of such a condition or that it 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 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)                                         AR20130008120



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ABCMR Record of Proceedings (cont)                                         AR20130008120



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