IN THE CASE OF: 

		BOARD DATE:	    19 August 2014

		DOCKET NUMBER:  AR20130020791 


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 records to show entitlement to Combat-Related Special Compensation (CRSC).

2.  The applicant states, in effect, the denial of his CRSC claim is flawed in that it indicates he was in a sedan, not a Light Medium Tactical Vehicle (LMTV), at the time of the accident that resulted in his injuries.  Because he was in an LMTV performing his military duties at the time of the accident, the disability should be considered as the result of an .

3.  The applicant provides copies his accident report, 45 pages of medical records, a Medical Evaluation Board (MEB), Physical Evaluation Board (PEB), DD Form 214 (Certificate of Release or Discharged from Active Duty), a Department of Veterans Affairs (VA) disability evaluation, a Physical Disability Board of Review (PDBR), CRSC application and denied,

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the regular Army on 6 November 2001, completed training, and was awarded military occupational specialty 15T (UH-60 Helicopter Repairer).

2.  On 18 October 2005, the government LMTV the applicant was driving was involved in a traffic accident on the Kyong Bu Highway, Seoul, Korea.  The civilian driver of a sport utility vehicle (SUV) rear ended the LMTV and was charged with following too close.  No charges were preferred against the applicant for the accident.

3.  The medical records provided show that although the applicant initially reported no injury from the accident, within a week he developed neck problems which were later diagnosed as mild disc bulging between C3–C4, C4–C5, C5–6, and C6–C7 with cervical degenerative arthritis and were attributed to the accident. 

4.  The medical records also show he was treated for right carpal tunnel syndrome (as a result of an injury while playing basketball); migraine headaches that were exacerbated by his neck problems; and hypercholesterolemia (high cholesterol).  He was given a permanent P3/U3 profile and referred to an MEB.

5.  On 17 January 2007, an MEB found the applicant was suffering from chronic neck pain/cervical strain, migraine headaches, and obstructive sleep apnea.  It was determined these conditions to be medically not acceptable.  He was also found to have right carpal tunnel syndrome and hypercholesterolemia which meet medical retention standards.  He was referred to a PEB.

6.  A 4 April 2007 PEB found the applicant unfit for continued service and afforded him a 10% evaluation for his neck problems and a 0% evaluation for his headaches.  The disabilities were not found to have been the result of a combat related injury.  The applicant did not appeal this determination.

7.  On 21 May 2007, the applicant was discharged for a physical disability with entitlement to severance pay in the amount of $26,056.00.

8.  On 17 September 2007, the VA denied service connection for right shoulder strain but granted him the following disability evaluations –

* 50% for obstructive sleep apnea 
* 30% for cervical degenerative arthritis 
* 30% for migraine headaches 
* 10% for right carpal tunnel syndrome 

9.  In December 2009, the VA increased his disability evaluations for his migraine headaches to 50% for a combined 90% disability evaluation.

10.  On 5 September 2012, the PDBR recommended that the applicant's separation be recharacterized to reflect disability ratings of 20% for cervical degenerative arthritis and 10% for migraine headaches (combined rating 30%) with entitlement to permanent disability retirement.  It continued the determinations that his obstructive sleep apnea and carpal tunnel syndrome where not unfitting.  The recommendation was approved on 14 September 2012.

11.  On 6 May 2013, the applicant's initial claim for CRSC for his obstructive sleep apnea, cervical degenerative arthritis, and migraine headaches was denied.  The applicant provided additional contentions with a continued denial being made on 2 July 2013.  

12.  The applicant appealed the denial and a third and final denial was rendered on 13 November 2013.  It was stated that the applicant had not submitted any new evidence to show that the conditions for which he was receiving his disability evaluation were shown to be associated with a combat-related event.

13.  Family of Medium Tactical Vehicles (FMTV) are a series of military vehicles, based on a common chassis that vary by payload and mission requirements.  The LMTV is a 2.5-ton capacity cargo or van configuration designed to perform local and line haul, unit mobility, unit resupply, as well as missions in combat, combat support, and combat service support units.

14.  Title 26, U.S. Code (USC) section 104, defines a "combat-related injury" as a personal injury or sickness which is incurred – 

* as a direct result of armed conflict
* while engaged in extra-hazardous service
* under conditions simulating war or 
* caused by an instrumentality of war

15.  Title 10, USC, subsection 1413a, states CRSC provides military retirees monthly compensation that replaces their VA disability offset.  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 (e.g., gunshot wounds (Purple Heart), punji stick injuries)
* Training that simulates war (e.g., exercises, field training) 
* Hazardous duty (e.g., flight, diving, parachute duty) 
* An instrumentality of war (e.g., combat vehicles, weapons, Agent Orange) 

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.

16.  Department of Defense Instruction (DODI) 1332.38 (Physical Disability Evaluation) provides the following definitions at:

	a.  E3.P5.2.2. Combat-related.  This standard covers those injuries and diseases attributable to the special dangers associated with armed conflict or the preparation or training for armed conflict.  A physical disability shall be considered combat-related if it makes the member unfit or contributes to unfitness and was incurred under any of the circumstances listed in paragraphs E3.P5.2.2.1 through E3.P5.2.2.4. 

	b.  E3.P5.2.2.2. While engaged in hazardous service.  Such service includes,
but is not limited to, aerial flight duty, parachute duty, demolition duty, experimental stress duty, and diving duty.

	c.  E3.P5.2.2.3. Under conditions simulating war.  In general, this covers
disabilities resulting from military training, such as war games, practice alerts, tactical exercises, airborne operations, leadership reaction courses; grenade and live fire weapons practice; bayonet training; hand-to-hand combat training; repelling, and negotiation of combat confidence and obstacle courses.  It does not include physical training activities, such as calisthenics and jogging or formation running and supervised sports.

	d.  E3.P5.2.2.4. Caused by an instrumentality of war.  Incurrence during a
period of war is not required.  A favorable determination is made if the disability was incurred during 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 of military ordnance, vehicles, or material.  However, there must be a direct causal relationship between the instrumentality of war and the disability.  For example, an injury resulting from a Service member falling on the deck of a ship while participating in a sports activity would not normally be considered an injury caused by an instrumentality of war (the ship) since the sports activity and not the ship caused the fall.  The exception occurs if the operation of the ship caused the fall.

DISCUSSION AND CONCLUSIONS:

1.  For entitlement to CRSC, the applicant must show that his disability was incurred while engaged in combat, while performing duties simulating combat conditions, or while performing especially hazardous duties, or as a result of an instrumentality of war.

2.  The fact the accident causing his injury occurred while he was driving an LMTV does not in and of itself make the injury the result of an instrumentality of war.  

3.  While an LMTV can, under certain conditions, be considered an instrumentality of war, the accident that caused his injury was the result of his being rear ended on a public highway by a civilian vehicle, not with anything having to do with the operation of the LMTV.  The cause of the injury was the SUV not the LMTV.

4.  His award of service connection and VA disability benefits does not in and of itself show entitlement to CRSC.  The applicant has failed to provide any evidence that would support a granting of CRSC for any of the disabilities for which he is receiving VA benefits.

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)                                         AR20130020791



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ABCMR Record of Proceedings (cont)                                         AR20130020791



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