BOARD DATE:	  20 August 2014

		DOCKET NUMBER:  AR20130019893 


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 correction of his military record to show his entitlement to Combat-Related Special Compensation (CRSC).

2.  The applicant states, in effect:

	a.  as a veteran, he submitted a request for benefits under the CRSC program;

   b.  while serving on active duty for special work (ADSW) with the 174th Air New York Army National Guard (NYARNG) after September 11, 2001, he suffered a stroke in 2003;
   
   c.  after the Department of Veterans Affairs (VA) determined he was 100 percent (%) disabled, he was informed he had no evidence of entitlement to CRSC; and
   
   d.  he feels his duty was hazardous and was a simulation of war.
   
3.  The applicant provides no additional documents.


CONSIDERATION OF EVIDENCE:

1.  The applicant's military record shows he initially enlisted in the Regular Army on 12 November 1975 and served until he was honorably discharged on 2 April 1984.  He completed 8 years, 4 months, and 21 days of creditable active duty service.

2.  After a break in service (3 April 1984 – 27 November 1986), the applicant enlisted in the NYARNG on 28 November 1986.  He was trained in and awarded military occupational specialty 76Y (Unit Supply Specialist).

3.  On 2 October 2001, he was ordered to active duty as a member of the NYARNG, in support of Operation Noble Eagle.  On 26 May 2002, he was released from active duty (REFRAD) and transferred to the NYARNG.

4.  A DA Form 2166-8 (Noncommissioned Officer Evaluation Report) contained in the applicant's official military personnel file (OMPF) which rated him during the period December 2001 through November 2002, shows:

	a.  he served in the principal duty of "automated logistical specialist";

	b.  he established and maintained stock records and other documents such as inventory, materiel control, accounting, and supply reports; established and maintained automated and manual accounting records; posted receipts and turn-ins and performed due-ins and due-outs accounting; and 

	c.  took charge of guard mount while on active duty.

5.  A DA Form 2173 (Statement of Medical Examination and Duty Status) shows that after reporting for duty on the morning of 9 March 2003, the applicant returned home sick and called for an ambulance.  He was taken to the Syracuse VA Medical Center, where it was determined he suffered a stroke.  This occurrence was considered to be in the line of duty.

6.  A medical evaluation board (MEB) narrative summary dated 23 January 2004 shows the applicant was referred to the MEB because he was unable to perform any of his duties as a result of a post-cerebral vascular accident (CVA), also his chief complaint.  It shows he suffered left-sided weakness with right-sided sensory loss and trouble swallowing and vertiginous sensations on 9 March 2003.


7.  Headquarters, 10th Mountain Division and Fort Drum, published Orders Number 141-1022, dated 20 May 2004.  It directed the applicant's release from assignment and duty because of physical disability effective on 24 May 2004.  It also directed his placement on the Temporary Disability Retired List (TDRL) on 25 May 2004.

8.  Office of the Adjutant General, Joint Force Headquarters, published Orders 034-1023, dated 3 February 2005.  It discharged the applicant from the NYARNG and assigned him to the Retired Reserve on 25 May 2004.

9.  On 23 March 2006, a Physical Evaluation Board (PEB) found the applicant's following medical conditions rendered him physically unfit for further service and recommended his permanent disability retirement with a combined rating of 40 percent (%):

* History of Urinary Retention, with self-catheterization, following a medullary stroke - (30%)
* Type II diabetes mellitus (existed prior to military service but compensable) – (20%)

The PEB's findings and recommendation were approved on 23 March 2006.

10.  U.S. Army Physical Disability Agency, Washington, DC, issued Orders Number D088-03, dated 28 March 2006.  It shows the applicant was removed from the TDRL on 28 March 2006 and permanently retired due to permanent physical disability on 29 March 2006.

11.  On 30 October 2003, the VA awarded him the following service-connected disability compensation:

* diabetes mellitus type II, 20%
* left lateral medullary stroke, 100%
* right lower extremity weakness, 40%
* right (dominant) upper extremity weakness 40%
* dysphagia, 10%
* urinary retention with voiding hesitancy, 10%
* erectile dysfunction, 0%
* entitlement to special monthly compensation based on Aid and Attendance, granted from 9 March to 1 October 2003
* entitlement to special monthly compensation based on loss of use of creative organ granted from 9 March 2003
* a decision regarding eligibility to Dependent's Educational Assistance was deferred
12.  On 29 January 2008, the VA indicated the applicant was rated 70% disabled for service-connected disabilities with individual un-employability payable at 100%.

13.  The U.S. Army Human Resources Command (HRC), CRSC Branch considered and denied the applicant's request for CRSC on 20 June 2008, 
6 November 2008, and 9 February 2009, based on the following conditions that were determined non-combat related:

* Paralysis of All Radicular Nerve Groups/Bilateral, Right upper extremity
* Paralysis of Sciatic Nerve/Bilateral, Right lower extremity

14.  On 29 March 2011, the HRC, CRSC Branch made final determinations on the applicant's request for CRSC and determined the aforementioned conditions did not meet the criteria for award of CRSC benefits.  He was advised of his right to appeal to this Board.

15.  On 12 March 2012, the HRC, CRSC Branch reminded the applicant he had previously received their final determination regarding his request for CRSC and again he was informed to submit his request to this Board.

16.  There is no evidence in the available record showing the medical conditions discussed above were sustained as a direct result of armed conflict, especially hazardous duty, training exercises that simulate war, or caused by an instrumentality of war.

17.  Combat-Related Special Compensation, 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 were not 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% disabling.

18.  The Under Secretary of Defense for Military Personnel Policy has provided policy guidance on the processing of CRSC appeals.  That guidance states in order for a condition to be considered as combat-related, it must have a direct, causal relationship to war or the simulation of war.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his injuries meet the criteria for CRSC because his duty was hazardous and simulated war while performing ADSW with the NYARNG.  However, the evidence of record confirms he performed automated logistical duties and took charge of guard mount during his ADSW in support of Operation Noble Eagle as evidenced by his NCOER.  His record does not include any evidence or awards showing he performed any hazardous duties to corroborate his claim.

2.  In addition, in the event the applicant was involved in the clean-up after the 911 terrorist attacks, this service is likewise not considered a simulation of war.  It was a terrorist attack.  The CRSC criteria is specifically for those military retirees who have combat- related disabilities.  The military retiree must show that 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.  Although the applicant contends his service-connected disabilities were combat-related and/or a result of simulation of war activities, thereby meeting the criteria for CRSC, he has not provided sufficient evidence to support this claim.

4.  Without evidence to establish a direct causal relationship of the applicant's disabilities to war or the simulation of war there is an insufficient basis on which to grant his request.

5.  In view of the foregoing, the applicant's request should be denied.

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.



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