IN THE CASE OF: 

		BOARD DATE:	    1 April 2014

		DOCKET NUMBER:  AR20130012435


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 reconsideration of the Army Board for Correction of Military Records (ABCMR) decision in Docket Number AR20120011860 on 5 February 2013.  Specifically, he requests correction of his disabling health conditions to show "in the performance of duty under conditions simulating war or through an instrumentality of war" so he can qualify for Combat-Related Special Compensation (CRSC) benefits.

2.  The applicant defers his statement to counsel.

3.  The applicant provides a tabbed packet in support of his request consisting of 12 tabbed exhibits.

* ABCMR Docket Number AR20120011860
* extract of Technical Manual 9-1005-249-23&P (Unit and Direct Support Maintenance Manual Including Repair Parts and Special Tools List – Rifle, 5.56-millimeter (mm), M16 Rifle, 5.56-mm, M16A1)
* extract of Field Manual 23-9 (Rifle, 5.56-mm, XM16E1)
* extract of Field Manual 3-22.9 (Rifle Marksmanship M16/M-4-Series Weapons)
* extract of Soldier Training Publication 145-I-MQS (Military Qualification Standards Manual 1)
* Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim)
* letter to counsel from Sergeant First Class (SFC) J____ U____, dated 23 May 2013
* letter to counsel from SFC (Retired) B____ B____, dated 25 June 2013
* DA Forms 2166-8 (Noncommissioned Officer Evaluation Report) covering the periods July 1995-June 1996 and July 1996-June 1997
* information on the Central Michigan University Redleg Cannon Club
* numerous pages of Battle Creek VA Medical Center Progress Notes
* extensive documentation from the VA regarding the applicant's service-connected disability claim award, including his most recent VA Rating Decision, dated 7 May 2013

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the ABCMR decision in Docket Number AR20120011860, dated 5 February 2013.

2.  Counsel submits a 7-page brief in support of the applicant's request wherein he argues and/or contends:

	a.  The applicant asserts that the Board incorrectly applied the facts in the original case in its discussion and conclusions.  In its previous decision, the Board opined that rifle ranges are not devices primarily designed for military service, since they are used in numerous instances by the civilian population.  Instead of focusing on the range as the proximate cause of the applicant's disability, the Board should have focused on the military devices that were the actual causation of his disability.

	b.  Counsel uses exhibits 2-12 to support the argument that military devices, to which the applicant was regularly exposed during his duty as a Reserve Officers' Training Corps (ROTC) instructor, were the actual cause of the applicant's disability through exposure to toxic chemicals/solvents and lead.  He uses the exhibits to show the applicant's continuous exposure to military weapons in the course of his daily duties.

	c.  Counsel further discusses the definitions of disability and CRSC as they pertain to the applicant and the U.S. Army Human Resources Command’s (HRC) error in its assessment and denial of his CRSC application.

	d.  Counsel concludes by stating the preponderance of evidence submitted by the applicant clearly meets the definitions of each element of the CRSC under the Instrumentality of War section, as published by HRC.  Each element is supported by credible, documentary information and first-hand personal statements of individuals actually involved in the matter.  Therefore, the applicant respectfully requests that the Board consider both the new and previous evidence and grant his application for CRSC retroactive to his original date of application or to the full extent of the law.

3.  Counsel provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20120011860 on 5 February 2013.

2.  The applicant provided a packet consisting of 12 tabbed exhibits which was not previously considered by the Board.  Accordingly, this new evidence will now be considered:

3.  On 6 August 1981, the applicant enlisted in the Regular Army.  He completed his initial entry training and was awarded military occupational specialty 13B (Cannon Crewmember).

4.  He served through numerous reenlistments and/or extensions in positions of increased responsibility and he was promoted to the rank/grade of SFC/E-7 on 1 November 1993.

5.  On or about 1 August 1995, he was assigned as a Military Science instructor in the ROTC department at Central Michigan University.

6.  On or about 17 October 1997, the applicant underwent a medical evaluation board (MEB) at the Walter Reed Army Medical Center in Washington, DC.  The majority of his narrative summary (NARSUM) is available for review; however, his DA Form 3947 (MEB Proceedings) is not.

	a.  His NARSUM extensively details his conditions.

* it traces the onset of his symptoms related to those conditions to October 1994
* he was restricted from a number of activities because of recurring episodes of seizures (2-3 per week), including driving, operating heavy machinery, working with ammunition, and/or working at a height where loss of consciousness could result in harm to himself or others

	b.  His NARSUM does not mention lead poisoning as a possible or probable cause for any of his conditions.

7.  The MEB referred him to a physical evaluation board (PEB); however, his DA Form 199 (PEB Proceedings) is not available for review.  Regardless, the PEB determined he was 60-percent disabled and not fit for further service.  The PEB directed his placement on the Temporary Disability Retired List (TDRL).

8.  On 1 April 1998, he was honorably retired from the Army by reason of temporary disability.

9.  On 9 May 2002, he was removed from the TDRL and he was permanently retired on 10 May 2002.

10.  His medical records are not available for review.  His available records are void of any documentation that establishes a link between his medical conditions and his exposure to lead during his service as a Military Science instructor at Central Michigan University.

11.  Throughout the years, the VA awarded him service-connected disability compensation for:

* complex partial seizure disorder
* loss of use of both hands (claimed as peripheral neuropathy of the bilateral upper extremities) associated with central nervous system dysfunction with loss of use of the bilateral lower extremities
* central nervous system dysfunction with loss of use of the bilateral lower extremities
* recurrent, severe major depression with cognitive disorder (not otherwise specified) associated with central nervous system dysfunction with loss of use of the bilateral lower extremities

12.  Initially, the VA determined he was 80-percent disabled; however, his rating was subsequently increased to show he is 100-percent disabled.

13.  On or about 26 September 2010, he submitted a CRSC claim for multiple conditions, ailments, or VA-rated disabilities.  On his DD Form 2860 (Claim for CRSC), he states:

The onset of my symptoms began during a field training exercise while I [was] stationed at Schofield Barracks, HI.  I was a career field artilleryman.  My symptoms have continued and have led to my medical retirement.

14.  The CRSC Branch at HRC denied his claim, citing their inability to verify any of his disabilities as combat related.  They granted that his claimed conditions were medically documented; however, the documentation provided did not show a relationship between his conditions and a combat event.

15.  On 13 January 2011, the CRSC Branch denied his request for reconsideration of his CRSC claim.  The CRSC Branch reviewed the existing and newly-submitted documentation and determined they could not establish a link between the claimed conditions and a combat-related event.

16.  On 22 March 2012, the CRSC Branch again denied his request for reconsideration of his CRSC claim.  The CRSC Branch determined they still could not establish a link between his conditions and a combat-related event, they were unable to overturn the previous adjudications, and they considered this current disapproval to be final.

17.  In his most recent VA Rating Decision, dated 7 May 2013, the VA determined he is 100-percent disabled and his disability is service connected.

18.  VA documents indicate his condition is likely related to the aftereffects of severe lead poisoning incurred while assigned as a rifle range instructor and supervisor at Central Michigan University.

19.  The applicant provided numerous documents intended to draw a correlation between his medical conditions and lead exposure he experienced during the years 1995 through 1998 while assigned at Central Michigan University.

	a.  The document identified as exhibit 1 is the previous ABCMR Record of Proceedings pertaining to his request for relief.

	b.  The documents identified as exhibits 2 through 10 show his duties at Central Michigan University included working with weapons and ammunition.

	c.  The documents identified as exhibit 11 are progress notes from the VA Medical Center, Battle Creek, MI.  In these progress notes, dated 20 November 2012, a medical doctor is asked to provide his/her opinion as to whether the residuals of stroke are "at least as likely as not" related to the applicant's lead exposure while serving on active duty.  The provider reviewed Army and VA medical records and opined that the applicant's central nervous system dysfunction is at least as likely as not (50/50 probability) caused by or the result of lead exposure.

	d.  The documents identified as exhibit 12 are related to the applicant's service-connected disability claim award, including his most recent VA Rating Decision, dated 7 May 2013.

20.  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.  CRSC eligibility includes disabilities incurred as a direct result of:

* armed conflict (gunshot wounds, Purple Heart, etc.)
* training that simulates war (exercises, field training, etc.)
* hazardous duty (flight, diving, parachute duty)
* an instrumentality of war (combat vehicles, weapons, Agent Orange, etc.)

21.  The Under Secretary of Defense for Military Personnel Policy provided policy guidance for processing CRSC appeals.  This guidance states that in order for a condition to be considered combat related, there must be evidence of the condition having a direct, causal relationship to war or the simulation of war or caused by an instrumentality of war.

22.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states the term "instrumentality of war" refers to a device primarily designed for military service and intended for use in such service at the time of the occurrence of the injury.  It may also be a device not designed primarily for military service if use of or occurrence involving such a device subjects the individual to a hazard peculiar to military service.  This use or occurrence differs from the use or occurrence under similar circumstances in civilian pursuits.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for reconsideration of his earlier request for CRSC entitlement was carefully considered.

2.  In his request, counsel contends:

	a.  The applicant became disabled while performing his assigned duties at Central Michigan University.  The evidence of record does not support this contention.  In fact, his NARSUM shows his medical conditions were first diagnosed in October 1994 prior to his arrival at Central Michigan University.

	b.  The applicant's disability was actually caused by an instrumentality of war.  The evidence of record does not support this contention.  A VA doctor opined that the applicant's central nervous system dysfunction is at least as likely as not (50/50 probability) caused by or the result of lead exposure.  However, her opinion does not constitute a definitive causal link.  Neither she, nor any other physician (14 years after the fact), could positively identify the undocumented level of his lead exposure as the definitive cause of his medical conditions.

	c.  The disability resulted from injury or sickness caused by fumes, gases, or explosion of military ordnance (including lead poisoning).  The evidence of record does not support this contention.  His disability may or may not have been caused by exposure to lead.

	d.  There is a direct causal relationship between the instrumentality of war and the disability (the M16A1 rifle released fumes, gases, and lead contaminates into the environment and the disabling condition – the central nervous system dysfunction) was, in fact, determined by the VA to be caused by lead poisoning.  The evidence of record does not support this contention.  The VA doctor did not and could not definitively state the applicant's medical conditions were directly caused by an instrumentality of war, in this case lead exposure from weapons and associated ammunition.

3.  In order to qualify for CRSC, the military retiree must show the disability met the established disability criteria and was incurred while engaged in combat, while performing duties simulating combat conditions, or while performing especially hazardous duties, such as parachuting or scuba diving, or caused by an instrumentality of war.

4.  The applicant's contention that his medical condition(s) occurred while he was serving as a rifle range instructor – and therefore was caused by an instrumentality of war – was carefully considered.  Neither the evidence of record nor the evidence submitted by the applicant definitively links the applicant's medical issues to his service at Central Michigan University.  The evidence of record confirms that although some of the applicant's disabilities occurred while he was serving on active duty and may be service connected, none of his disabilities were caused by an instrumentality of war and/or are not combat related.  Therefore, he is not eligible for CRSC.


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 to amend the decision of the ABCMR set forth in Docket Number AR20120011860, dated 5 February 2013.




      ___________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)                                         AR20110005341



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ABCMR Record of Proceedings (cont)                                         AR20130012435



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