BOARD DATE:	  22 October 2013

		DOCKET NUMBER:  AR20120020373


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, correction of his records to show that the leg injury he sustained on 23 January 1991 was caused by a simulation of war; therefore, in accordance with Department of Veterans Affairs (VA) guidelines it was combat-related and service-connected for the purpose of qualifying for Combat-Related Special Compensation (CRSC).

2.  The applicant states:

* the injury to his left leg occurred while he was participating in a field training exercise (FTX) during his service as a drill sergeant at Fort Benning, GA
* his injury occurred while he was serving on active duty in the Regular Army
* he believed the injury to his leg was properly documented; however, after applying for CRSC, he was informed he had to apply to the Army Board for Correction of Military Records (ABCMR) for a records correction before he could be approved for CRSC

3.  The applicant provides 9 attachments in support of his request:

* a memorandum from the CRSC Branch at the U.S. Army Human Resources Command (HRC), Fort Knox, KY, dated 25 July 2012
* the cover page of his VA Rating Decision, dated 22 June 2011
* page 1 of his VA Rating Decision, dated 22 June 2011
* DA Form 5181-R (Screening Note of Acute Medical Care), dated            28 January 1991
* Standard Form (SF) 513 (Medical Record – Consultation Sheet), dated  17 May 1991 and 21 May 1991
* SF 600 (Health Record – Chronological Record of Medical Care), dated 14 June 1991
* the reverse side of DA Form 5181-R, dated 28 January 1991
* SF 513, dated 17 May 1991 and 2 July 1991
* DA Form 5181-R, dated 16 April 1991

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 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.  On 30 October 1979, after prior enlisted service in the Army National Guard (ARNG), active and reserve components of the U.S. Navy, and the U.S. Army Reserve, the applicant enlisted in the Regular Army.  

3.  He completed his initial entry training in 1976 while serving in the ARNG and upon completion of that training he was awarded military occupational specialty (MOS) 11B (Infantryman).  He served in that MOS throughout his service in the Regular Army.

4.  He served through multiple periods of reenlistment or extension, in assignments of increased responsibility, and attained the rank/grade of master sergeant (MSG)/E-8.

5.  On 31 August 1997, he was honorably retired from the Army, after 20 years and 25 days of service. On the following day, he was placed on the Retired List in the rank/grade of MSG/E-8.  

6.  His medical records are not available for review, and his personnel records are void of any documentation that shows he suffered any injuries or documentation that shows he suffered a leg injury while serving as a drill sergeant at Fort Benning, GA.

7.  In July 2010, he submitted an initial claim for CRSC based on tinnitus; no official evidence of acoustic trauma or combat noise exposure to show combat-related event caused condition.  On 23 August 2010, by letter, an official at HRC notified him that his claim for CRSC was denied due to their inability to verify his injury as combat-related.

8.  He submitted a request for reconsideration, and on 9 December 2010, by letter, an official at HRC notified him that his request for reconsideration of his CRSC claim and all of the evidence he submitted was reviewed, but there was no justification to reverse the previous decision.  The letter affirmed the decision that his claim for CRSC was denied as follows:

* Hearing loss; no official evidence of trauma or combat noise exposure
* Scars, residual of laceration to forehead; documentation does not show accident or incident to connect disability to a combat-related event
* Capsulitis, left knee; documentation does not show accident or incident to connect disability to a combat-related event
* Tinnitus; previously requested; no new evidence provided to show combat-related event caused condition; no official evidence of acoustic trauma or combat noise exposure in claim

9.  He submitted a request for reconsideration, and on 7 October 2011, by letter, an official at HRC notified him that his request for reconsideration of his CRSC claim and all of the evidence he submitted was reviewed, but there was no justification to reverse the previous decision.  The letter affirmed the decision that his claim for CRSC was denied as follows:

* Hearing loss; previously requested; no new evidence provided to show combat-related event caused condition
* Scars, residual of laceration to forehead; previously requested; no new evidence provided to show combat-related event caused condition
* Capsulitis, left knee; previously requested; no new evidence provided to show combat-related event caused condition
* Tinnitus; previously requested; no new evidence provided to show combat-related event caused condition

10.  On 1 December 2011, by letter, HRC notified him that after reviewing the documentation he submitted in support of his claim, there was evidence to grant him a 10 percent (%) CRSC award for hearing loss and tinnitus.  However, there was no reason to overturn the previous adjudication with respect to the scar, residual of laceration to forehead; or the capsulitis of the left knee; as the documentation he submitted still did not show new evidence to link his requested condition to a specific combat event.  

11.  On 1 February 2012, by letter, HRC notified him that after reviewing the documentation he submitted in support of his claim, there was no reason to overturn the previous adjudication with respect to the scar, residual of laceration to forehead; or the capsulitis of the left knee; as the documentation he submitted still did not show new evidence to link his requested condition to a specific combat event.  This was his final denial letter. 

12.  He provides numerous documents that show on or about 23 January 1991, he suffered an injury to his left knee while serving at Fort Benning, GA.  While the documentation shows he suffered his injury after stepping in a hole, it does not specifically show his injury occurred during an FTX.  Additionally, the submitted documentation does not discount the possibility his injury occurred outside of normal duty conditions.

13.  Additionally, he provides his VA Rating Decision of 22 June 2011, which shows he was diagnosed with capsulitis in his left knee.  This diagnosis was determined to be 10% disabling.

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation)  states: 

   a. A combat-related injury is defined as a personal injury or sickness that a Soldier incurs under one of the following conditions: as a direct result of armed
conflict; while engaged in extra-hazardous service; under conditions simulating war; or which is caused by an instrumentality of war.

   b. Conditions simulating war are defined as those circumstances of training so simulating conditions of war that a special personal risk attends the situation.  The mere fact that training (calisthenics) was required, or that training (football) is sponsored by the military, does not equate with "conditions simulating war."

   c. Paragraph 4-19, sub-paragraph l of the regulation currently in effect, provides that conditions simulating war include, but are not limited to, the following activities:  performance of tactical exercises such as a squad or platoon in the assault; airborne operations; leadership reaction courses; grenade and live fire weapons practice; bayonet training; hand-to-hand combat training; rappelling; and negotiation of combat confidence and obstacle courses.

15.  CRSC, as established by section 1413a, Title 10, U.S. Code, 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 wasn’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.  

   a. 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.  

   b. Such disabilities must be compensated by the VA and rated at least 10% 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 his records should be corrected to show that the leg injury he sustained on 23 January 1991 was caused by a simulation of war; therefore, in accordance with VA guidelines, it was combat-related and service-connected and he should be entitled to CRSC.  This contention is rejected.

2.  The applicant's service medical records, including the complete facts and circumstances surrounding his claimed knee injury, are not available for review with this case.  The documents he provides show he injured his knee when he "stepped into a hole."  There is no mention of an FTX.

3.  In the absence of the complete facts and circumstances, and given the documents he submitted, it is impossible to establish a direct, causal relationship that led to his injury.  Even if the Board were to speculate that he might have been preparing for a simulated war at the time, there is insufficient evidence to show that he was injured during actual simulated combat.  It appears under today's standards that the applicant's injury would not fall under conditions simulating war.

4.  The CRSC criteria are 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.

5.  Without evidence to establish a direct, causal relationship to the applicant’s rated disabilities to war or the simulation of war, there is 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)                                         AR20100007330



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120020373



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1