BOARD DATE: 27 March 2014
DOCKET NUMBER: AR20130011910
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, to be granted combat-related special compensation (CRSC).
2. The applicant states:
a. the Army only awarded him 10% disability and he has been fighting for his compensation for 8 years and is still fighting.
b. his current conditions were found in 1989/1990 and aggravated throughout.
c. he has other service-connected disabilities that he is fighting to receive. His most recent ailment is cervical vertebrae, neurological medical issues that were annotated in his records, but were not accepted through the Department of Veterans Affairs (VA).
d. he wants this Board to verify his disabilities and speed up his proper rating on the Army's responsibility.
e. he is currently preparing to undergo major neck surgery.
f. his records were not reviewed for the proper disability percentage at the time of his discharge.
3. The applicant provides:
* Service medical records, dated 1990 to 1996
* Medical records, dated 2013
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. After having had prior service in the Regular Army, the applicant again enlisted in the Regular Army, on 29 March 1989. He served as a power generator equipment repairer and he retired in the rank of sergeant first class on 30 September 2005.
3. On 1 November 2005, the VA granted him service-connected disability compensation for:
* degenerative joint disease, bilateral knees (10%)
* post-operative protruding surgical screw suborbital, right side (0%)
* pseudofolliculitis (claimed as skin disease) (0%)
4. On 27 October 2009, the U.S. Army Human Resources Command CRSC Branch reviewed his claim for CRSC and determined he didn't currently meet eligibility requirements. His claim could not be processed because the VA Rating decision was not available.
5. On 15 January 2010, the U.S. Army Human Resources Command CRSC Branch reviewed his claim for CRSC and was unable to verify his degenerative joint disease (knees) as a combat-related disability.
6. He provides service medical records which show he was treated for left arm numbness, pain in his neck and spine, and chest pain during the period 1990 to 1996. He also provided medical records, dated 2013, which show he diagnosed with degenerative disc disease in the cervical spine and neuroforaminal narrowing on the left side.
7. 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. 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.
2. There is no evidence in the available record and he has not provided sufficient evidence which shows a medical condition was sustained during combat action or simulation of war.
3. CRSC determinations require evidence of a direct, causal relationship to the military retirees VA rated disabilities to war or the simulation of war.
4. Without evidence to establish a direct, causal relationship to the applicants VA rated disability to war or the simulation of war, there is insufficient basis in 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 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) AR20130011910
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ABCMR Record of Proceedings (cont) AR20130011910
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