IN THE CASE OF:	  

		BOARD DATE:	  28 May 2014

		DOCKET NUMBER:  AR20130015399 


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 award of Combat-Related Special Compensation (CRSC) for injuries he received on active duty during training simulating war and using an instrument of war.

2.  The applicant states he was thrown from a tank during training that simulated war and while using an instrumentality of war.  According to the Department of Veterans Affairs (VA) Benefits Reference Guide, dated 2 October 2012, he meets all the criteria for CRSC.

3.  The applicant provides a copy of a Standard Form 600 (Chronological Record of Medical Care), dated 15 January 2013, that shows he complained of left-sided neck pain with left forearm pain and weakness; an MRI (magnetic resonance imaging) cervical spine series was completed; and the examining physician recommended a neurosurgery consultation.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 28 October 1981.  He was awarded military occupational specialty 19K (M1 Armor Crewman).

2.  He served in Southwest Asia from 29 August 1990 through 22 March 1991.

3.  A review of the applicant's Army Military Human Resource Record revealed four medical records that show he sought medical treatment as follows:

* 7 October 1988 – for lower left back strain after playing football
* 10 February 1990 – for neck and back pain after being thrown off a tank
* unspecified date in 1992 – for stiffness in neck after playing soccer
* July 1993 – for lower back pain after playing football

4.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he entered active duty on 28 October 1981 and he was honorably retired from active duty on 31 January 2002 based on sufficient service for retirement.  He completed 20 years, 3 months, and 3 days of total active service during this period.  The highest rank he attained was sergeant first class/pay grade E-7.

5.  On 12 August 2005, the Special Actions Branch, CRSC Division, U.S. Army Human Resources Command (HRC), considered the applicant's claim for CSRC.

	a.  His VA service-connected disabilities were listed as:

* traumatic arthritis (claimed as mild degenerative changes of the right shoulder acromioclavicular joint) – 10 percent
* traumatic arthritis (claimed as degenerative joint disease of the left knee) – 10 percent
* traumatic arthritis (claimed as degenerative joint disease of the right knee) – 10 percent
* traumatic arthritis (claimed as degenerative joint disease of the cervical spine) – 10 percent
* spinal disc condition (claimed as chronic low back pain with degenerative joint disease of the lumbar spine) – 10 percent
* hypertension – 10 percent

	b.  The applicant was informed that the conditions could not be approved as combat-related in accordance with the Department of Defense (DOD) CRSC Program Guidance, dated 15 April 2004, due to lack of supporting documents.

6.  On 10 February 2006, the HRC CRSC Division reconsidered the applicant's claim.  He was informed that based on the documentation he provided, they were unable to find any official "documentary evidence" to verify his VA service-related illnesses/conditions as being combat-related.

7.  On 29 May 2013, the HRC CRSC Division again considered the applicant's claim.  He was informed that after reviewing all the documentation in support of his claim, they were unable to overturn the previous adjudications.  He was also informed that the documentation he submitted failed to provide evidence to link his requested conditions to a combat-related event and the disapproval is now considered final.

8.  CRSC, as established by Title 10, U.S. Code, section 1413a, as amended, states that eligible members are retired veterans with combat-related injuries who meet all of the following criteria:

* Active, Reserve, or National Guard with 20 years of creditable service, permanent medical retiree or Temporary Early Retirement Authority retiree
* receiving military retired pay
* have a 10-percent or greater VA-rated injury
* military retired pay is reduced by VA disability payments (VA Waiver)
* must be able to provide documentary evidence that the injury was a result of one of the following –

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

9.  The Under Secretary of Defense for Military Personnel Policy provided policy guidance for processing CRSC appeals.  It 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.

10.  The HRC Special Compensation Branch webpage shows the CRSC Division is responsible for verifying a claimant's injuries are directly connected to combat or combat-related operations as defined by DOD CRSC Program Guidance, dated 15 April 2004.  It provides criteria, terms, definitions, and explanations that apply to making combat-related determinations in the CRSC program.

	a.  An instrumentality of war is a vehicle, vessel, or device designed primarily for military service and intended for use in such service at the time of the occurrence or injury.

	b.  Incurrence during an actual period of war is not required.  However, there must be a direct, causal relationship between the instrumentality of war and the disability.  The disability must be incurred incident to a hazard or risk of the service.

	c.  A determination that a disability is the result of an instrumentality of war may be made if the disability was incurred in any period of service as a result of such diverse causes as wounds caused by a military weapon, accidents involving a military combat vehicle, injury or sickness caused by fumes, gases, or explosion or military ordinance, vehicles, or material.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be awarded CRSC for injuries he received when he was thrown from a tank during training that simulated war and while using an instrumentality of war.

2.  The applicant's contention was carefully considered.

	a.  The evidence of record shows the applicant sought medical treatment on 10 February 1990 for neck and back pain after being thrown off a tank.  It does not show he was participating in hazardous duty, in training that simulated war, or in armed conflict at the time he was injured.

	b.  The medical record he provided, dated 15 January 2013, offers insufficient evidence to support a claim to CRSC.

3.  The VA granted the applicant service connection for his disability ratings.  There is no evidence to show the neck/shoulder or back injury for which he is receiving service-connected compensation is related to or was caused by the incident in which he was thrown off a tank.  There is no evidence the VA determined the conditions were combat related or that there was a causal relationship between an instrumentality of war and any of his VA-rated disabilities.
 
4.  The applicant submitted evidence to the HRC CRSC Division in support of his claim for CRSC on three separate occasions.  His claims to show a combat-related event caused his injuries/illnesses were denied in all three instances.

5.  There is no evidence of record that shows a direct, causal relationship between an instrumentality of war being used in such service and the applicant's disability at the time of occurrence of the injury or that the disability was incurred incident to a hazard or risk of military service.

6.  The CRSC criteria are specifically for those military retirees who have combat-related disabilities.  The applicant's claim does not satisfy this requirement.

7.  Therefore, in view of all of the foregoing, there is an insufficient 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)                                         AR20130015399



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ABCMR Record of Proceedings (cont)                                         AR20130015399



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