IN THE CASE OF:	  

		BOARD DATE:	  18 September 2014

		DOCKET NUMBER:  AR20140001842 


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 he was told to apply to the Army Board for Correction of Military Records (ABCMR).  

3.  He provides:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* four Department of Veterans Affairs (VA) Rating Decisions
* five letters from the U.S. Army Human Resources Command (HRC) CRSC Branch
* orders
* a snapshot of his official military personnel file (OMPF)
* 12 pages of his medical records and allied documents

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.  The applicant enlisted in the Regular Army on 21 July 1983.

3.  He submitted copies of numerous documents contained in his OMPF which provide a snapshot of his military and civilian schools, awards, and orders.

4.  The applicant submitted seven pages of his medical records and allied documents, dated from 8 December 1986 to 24 March 1987, which show on:

	a.  8 December 1986, he was treated for confused behavior and diagnosed with schizophrenic disorder and stress; and 

	b.  24 March 1987, a medical evaluation board diagnosed him with a schizophrenia disorder and referred him to a physical evaluation board.  

5.  Orders Number D119-19, dated 18 June 1987, show he was retired, effective 8 July 1987, and he was placed on the Temporary Disability Retired List (TDRL), effective 9 July 1987.  The DD Form 214 he was issued shows he completed
3 years, 11 months, and 17 days of active duty service.

6.  Orders Number D225-9, dated 25 November 1988, show the applicant was removed from the TDRL and retired from the military on 9 December 1988 due to a permanent physical disability that was 50 percent disabling.  

7.  He submitted medical records from the Alameda County, Highland General Hospital, dated 21 January 1988, which show that he was treated for psychiatric components of nausea, vomiting, and abdominal pain from 14 January to 
19 January 1988. 

8.  He submitted medical records from an unknown medical facility, dated 
24 January 1989, that show he was diagnosed with schizophrenia, residual type. 

9.  He submitted his VA Rating Decision:

	a.  dated 5 September 2012, that shows he was granted a service-connection, peacetime, incurred for:

		(1)  schizophrenia, competent with an evaluation of 30 percent, effective 
9 July 1987 to an increased rating of 100 percent, effective 29 July 1992; 

		(2)  diabetes mellitus, type II with an evaluation of 20 percent, effective 
6 November 2007; and

		(3)  gastroesophageal reflux disease (claimed as stomach condition) with an evaluation of 10 percent, effective 14 April 2008.

	b.  dated 16 November 2012, that shows he was a granted service-connection, peacetime, incurred for diabetes mellitus, type II with an evaluation of 20 percent, effective 6 November 2007. 

	c.  dated 5 December 2012, that shows he was granted service-connection, peacetime, incurred for pseudofolliculitis barbae with an evaluation of 0 percent, effective 14 April 2008. 

10.  On 27 February 2006, HRC, CRSC Branch informed the applicant that he did not meet the preliminary eligibility criteria based upon the following:

	a.  20 years or more of active military service in the Uniformed Services in receipt of retired pay and VA disability compensation; 

	b.  non-regular reserve retirees must have 20 good qualifying years of uniformed service, age 60, in receipt of VA disability compensation, and in receipt of retired pay;

	c.  combined VA disability rating of at least 10 percent; and 

	d.  retirement pay must currently be offset/reduced by VA disability compensation.

11.  On 15 July 2008, HRC, CRSC Branch informed the applicant that they were unable to award the condition 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 condition which was determined to be unverified as a combat-related condition:  9205, Schizophrenia, 100 percent.

12.  On 2 October 2008, HRC, CRSC Branch reviewed the applicant's claim for CRSC and he was again informed that they were unable to verify the link between his service connected-disability and a combat-related event.



13.  On 26 November 2008 and 21 November 2013, 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.  

14.  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.)

15.  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.

16.  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.  The evidence shows the applicant was diagnosed with schizophrenia, diabetes mellitus, type II, gastroesophageal reflux disease, and pseudofolliculitis barbae.  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)                                         AR20140001842



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ABCMR Record of Proceedings (cont)                                         AR20140001842



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