IN THE CASE OF:	  

		BOARD DATE:	  14 August 2014

		DOCKET NUMBER:  AR20130019671 


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’s (HRC) decision to deny him combat-related special compensation (CRSC) for Degenerative Joint Disease Lumbar Spine. 

2.  The applicant states, in effect, he believes the CRSC Branch failed to realize that all of the injuries which occurred in the early morning hours of 25 February 1991, were caused by one incident.

   a.  On 25 February 1991, while in combat operations northwest of Al Kafji, Saudi Arabia, he was riding in the back of an M1008 transporting individuals to a holding area for interview and interrogation. 

   b.  The driver lost control of the vehicle which left the road and struck an embankment causing damage to the front end of the vehicle and throwing the passengers forward and out of the vehicle.  He struck the radio rack that was in the back of the vehicle with his right shoulder, right knee and leg causing dislocation and tearing of the right shoulder and right knee.
   
   c.  Since May 2012, he has repeatedly submitted correspondence to the CRSC Branch for CRSC due to the injuries he received on 25 February 1991.  
   
   d.  On 11 July 2012, he received a combined 40 percent (%) CRSC approval for his right shoulder injury and right shoulder degenerative arthritis.  However, he did not receive CRSC for his Degenerative Joint Disease Lumbar Spine.  

3.  The applicant provides:

* a self-authored statement
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 215 (Correction to DD Form 214)
* 9 letters
* 2 Department of Veterans Affairs (VA) Rating Decisions
* DA Form 2173 (Statement of Medical Examination and Duty Status)
* 3 DA Forms 2823 (Sworn Statement)
* VA Summarization of Episode Note
* VA Form 21-4138 (Statement in Support of Claim)

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 26 March 1952.  Having prior enlisted service in the Regular Army, the applicant enlisted in the Army National Guard (ARNG) on 23 July 1981. 

2.  The applicant provides and his record contains a DD Form 214 which shows he served in Southwest Asia, in military occupational specialty 95B (Military Police), while in the North Dakota ARNG from 7 January to 9 May 1991.

3.  On 6 November 1998, the Office of the Adjutant General, State of North Dakota, issued him a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  

4.  The applicant's record is void of medical documentation and he provides no medical documentation which shows he suffered or was treated for a back injury throughout his military service. 

5.  His record contains a DD Form 2860 TEST (V3) (Application for CRSC), dated 23 October 2004.  The applicant requested CRSC for his VA rated disabilities of a right shoulder injury, a right knee injury, and for deep vein thrombosis - post phlebitic.  The application is void of any mention of  Degenerative Joint Disease Lumbar Spine.

6.  On 17 November 2004, the applicant's claim for CRSC was disapproved because his record indicated that he had less than 20 years of active service or, for non-active duty retirees, he did not have 20 good qualifying years of uniform service, or had 20 qualifying years but was not yet age 60 and was not yet receiving retired pay.

7.  On 16 March 2012, the applicant was retired and placed on the retired list in the rank/grade of sergeant first class/E-7.

8.  On 14 May 2012, he submitted a CRSC claim for numerous ailments to include Degenerative Joint Disease Lumbar Spine.  On 5 June 2012, HRC CRSC Branch was unable to verify his ailments as combat related.  The applicant chose to rebut the findings.

9.  On 11 July 2012, the HRC CRSC Branch reviewed his claim for CRSC and based on the documentation he provided he was granted a 30% disability rating for Right Shoulder Injury with Ulnar Nerve Compression and 10% for Right Shoulder Degenerative Arthritis.  The total CRSC combined rating was 40% effective April 2012.  CRSC was denied for Degenerative Joint Disease Lumbar Spine as the condition was previously requested and no new evidence was provided to show a combat-related event caused the condition.

10.  On 12 April 2013, after he resubmitted a claim for CRSC, by letter, HRC officials notified the applicant that based on the documentation he provided CRSC was once again denied for Degenerative Joint Disease Lumbar Spine as the condition was previously requested and no new evidence was provided to show a combat-related event caused the condition.

11.  The applicant provides a letter, dated 9 September 2013, from HRC CRSC Branch, wherein he was notified the documentation he submitted still showed no new evidence to link his requested conditions (to include Degenerative Joint Disease Lumbar Spine) to a combat-related event.  His only recourse was to appeal the decision to the Army Review Boards Agency.

12.  The applicant provides a VA Rating Decision, date 27 January 2011, wherein it shows he was granted service-connected disability compensation for Degenerative Joint Disease Lumbar Spine at 20%, effective 12 November 2009.  The VA stated in their Reasons for Decision that, "although a chronic back condition was not shown in service, we based this decision on a review of the evidence which shows that his current lumbar spine condition was a result of a motor vehicle accident in service."

13.  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 applicant contends he should be entitled to CRSC for Degenerative Joint Disease Lumbar Spine.  However, his record is void of medical documentation and he provides no medical documentation which shows he suffered or was treated for a back injury at any time during his military service. 

2.  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.

3.  His arguments are understood.  Unfortunately, although he has submitted evidence to show that his current condition may be service related and has progressed over time, he has not submitted sufficient evidence which shows his condition is combat-related or was caused by specific incidents that occurred during combat or under conditions simulating war.  There is no evidence of record to link his lumbar spine condition to the motor vehicle accident.

4.  Without conclusive evidence to establish a direct, causal relationship of the applicant's condition to war or the simulation of war, regrettably, 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)                                         AR20130019671



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ABCMR Record of Proceedings (cont)                                         AR20130019671



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