IN THE CASE OF: 

		BOARD DATE:	  2 Ju1y 2014

		DOCKET NUMBER:  AR20130016725 


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).

2.  The applicant states:

	a.  his first application for CRSC was incomplete because he did not enclose the Department of Veterans Affairs (VA) Schedule for Rating Disabilities (VASRD) and the VA Rating Decision.  

	b.  there were no agencies (VA, Disabled American Veterans, or Department of the Army offices) that would assist him with applying for CRSC.  
	
	c.  he was told not to his submit all of his medical records or his application would automatically be denied and since he is not a medical doctor he submitted what he believed to be proof of his training and injuries.

	d.  he reapplied, was again denied, and a final disapproval was issued.  He believes it was for a sarcastic remark he made requesting immediate approval.  

	e.  he did not see that justification was needed to explain the mindset of a combat paratrooper with the 82d Airborne Division who had been jumping out of airplanes for over 20 years.

	f.  if you were injured while on jump status you were essentially ineffective to your unit's mission and if you went on sick call too many times you were considered a malingerer.  

	g.  he would appreciate a chance to show the Board the aftereffects of the Persian Gulf Syndrome.  He asks how he can prove there were chemicals in the soil in Iraq in 1991.  The red marks on his body that turned white were a direct result of the aftermath of his deployment.  

	h.  the only proof is his warrant officer physical taken in 1988 that does not indicate he had any burn marks or patches and he is submitting another medical document that shows the location of the patches.  

	i.  he has been to the dermatologist several times and tried all the medications to stop the patches, but they just become larger.  He indicates he can swear under oath that the patches are a direct result of combat or combat related training. 

	j.  his left shoulder tendon inflammation resulted in both of his shoulders being so inflamed he could not salute for a week while deployed to Iraq in 2006.  He takes 800 milligram of Motrin whenever he has flare-ups or he will be rendered immobile.   

	k.  he was a part of the Iraqi transition team and worked directly for division commanders and could not let his injuries hinder the progress of the mission.  He was given two Bronze Star Medals during these conflicts.  

	l.  he enclosed a few more medical documents which should result in an immediate reversal and approval of his CRSC application.

3.  He provides:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* his DD Form 2860 (Claim for CRSC)
* a VA Form 21-22 (Appointment of Veterans Service Organization)
* a VA Form 21-4138 (Statement in Support of Claim)
* his VA Rating Decision
* two letters from U.S. Army Human Resources Command (HRC) CRSC Branch
* 41 pages of his medical records and allied documents
* a two-page self-authored statement


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.  The applicant enlisted in the Regular Army on 18 September 1981 and served until he was appointed as a warrant officer on 31 October 1988.  He served in Southwest Asia from 12 January to 4 April 1991, Macedonia from 11 July to 
8 November 2001, and Iraq from 20 November 2005 to 11 November 2006.

3.  The applicant submitted 41 pages of his medical records and allied documents, dated from 31 December 1985 to 18 October 2006, which show he sought treatment on:

	a.  29 June 1988, for hilar adenopathy (enlargement of the lymph nodes in the lungs); 

	b.  13 and 15 April 1994, for a rash (white patches) on his inner thighs that he indicated started while he was in the Persian Gulf; 

	c.  25 May 1994, for warts on his feet; and

	d.  25 November 1996, for soreness in the shoulder joint when moving his arms.  

4.  On 1 May 2007, he was placed on the Retired List in the rank/grade of warrant officer four/W-4.






5.  He submitted his VA Rating Decision, dated 19 November 2007, that shows the following decisions regarding his claim, effective 1 June 2007:

* service-connection for –

* post-inflammatory hypopigmentation (claimed as skin disorder), 
30 percent 
* lumbosacral strain with degenerative disc disease, 10 percent 
* tendonitis, left shoulder, 10 percent
* bilateral plantar fasciitis, 10 percent

* service-connected, but 0 percent for –

* peripheral neuropathy, right lower extremity
* retropatellar pain syndrome, right knee
* residuals, left ankle sprain
* sarcoidosis
* scarring, neck, residual of lymph node excision

* service-connection was denied for –

* hordeoloum, right eye
* skin abscesses, right upper extremity
* bilateral hammertoes
* post-traumatic stress disorder (PTSD)

6.  On 15 April 2008, the U.S. Army HRC, CRSC Branch informed the applicant that they were unable to award the conditions listed below as combat-related in accordance with their program guidance.  The VA Disability Codes, VA Narrative Descriptions, and corresponding VA Disability Percentages evaluated the following conditions which were determined to be: unverified as combat-related conditions:

* 5242, Degenerative Arthritis of the Spine, Left Spine, 10 percent
* 7806, Eczema, 30 percent
* 5024, Tendon Inflammation Left Shoulder, 10 percent

7.  On 9 February 2011, the HRC, CRSC Branch reviewed the applicant's claim for CRSC and he was again informed they were unable to verify his Degenerative Arthritis of the Spine, Left Spine, Eczema, and Tendon Inflammation Left Shoulder as combat-related.

8.  On 24 March and 4 April 2011, the HRC, CRSC Branch informed the applicant that they were unable to overturn the previous adjudications because the documents he submitted still showed no new evidence to link his requested conditions to a combat-related event and he was advised to apply to the Army Review Boards Agency.  

9.  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.)

10.  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.

11.  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 CRSC criteria are 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.  Although the evidence shows the applicant was diagnosed with Degenerative Arthritis of the Spine, Left Spine, Eczema, and Tendon Inflammation Left Shoulder, unfortunately there is no evidence in the available record that shows these conditions were sustained as a direct result of armed conflict, especially hazardous duty, training exercises that simulate war, or caused by an instrumentality of war.

3.  Without evidence to establish a direct, causal relationship to his 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 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)                                         AR20130016725





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ABCMR Record of Proceedings (cont)                                         AR20130016725



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