IN THE CASE OF:	  

		BOARD DATE:	  7 January 2015

		DOCKET NUMBER:  AR20140008641 


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 decision to deny him combat-related special compensation (CRSC). 

2.  The applicant states:

   a.  Due to his misunderstanding, he submitted records for his time in the        U.S. Army (1990-1994).  His hearing was affected during this time period; however, he should have submitted records for his U.S. Air Force (USAF) service (1973-1979) for which he was awarded service-connected disability from the Department of Veterans Affairs (VA).

   b.  He submitted three claims for his time in the U.S. Army; however, he did not have an advisor until after he was notified that his final request for CRSC was denied.  Since he has exhausted three claims on the wrong time period and service, he believes he cannot submit a new claim without the Board's help.

3.  The applicant provides a:

* letter
* Rating Decision
* Certificate
* Statement of Retirement Points Earned
* DD Form 214 (Certificate of Release or Discharge from Active Duty)


COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Although the applicant lists a representative of the Military Order of the Purple Heart as Counsel, he did not render a request on the applicant's behalf.

2.  Counsel provides no additional statement. 

3.  Counsel provides no additional evidence.

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 Army Board for Correction of Military Records (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.  Evidence shows the applicant served in the USAF as a Weather Officer from 23 August 1973 to 15 October 1979.

3.  After a break in service, the applicant enlisted in the Texas Army National Guard on 16 February 1990.  On 15 April 1996, he was honorably transferred to the U.S. Army Retired Reserve.

4.  Although the applicant's records reflect he is a veteran of the Vietnam Era and peacetime, they fail to show he directly participated in an armed conflict throughout his periods of service.

5.  The applicant provides a VA Rating Decision, dated 27 June 2003, which shows he was granted service-connected disability compensation for tinnitus rated 10 percent (%) disabling, effective 23 April 2003.

6.  On 19 January 2011, the applicant was placed on the retired list in the rank/grade of captain/O-3.

7.  The applicant's service medical records, including the complete facts and circumstances surrounding his claimed tinnitus, are unavailable for review with this case.

8.  On 29 February 2012, he submitted a CRSC claim for tinnitus.  In his application he stated, "while doing simulating war training supporting the squadron as wing weather officer, I worked with B-52s (8 engine jet) on a daily basis causing my hearing loss."

9.  On 21 March 2012, U.S. Army Human Resources Command (HRC) CRSC Branch was unable to verify his bilateral hearing loss and tinnitus as combat related.  The applicant chose to rebut the findings.

10.  On 13 April 2012, he submitted a statement from a VA Audiologist who noted the applicant was assigned to a crew served weapon and he was exposed to live tactical fire while participating in tactical exercises at Fort Hood, TX each year.

11.  On 2 May 2012, the HRC CRSC Branch reviewed his claim for reconsideration of CRSC and based on the documentation he provided CRSC was once again denied for bilateral hearing loss and tinnitus as the conditions were previously requested and no new evidence was provided to show a combat-related event caused the conditions.  The applicant chose to rebut the findings.

12.  On 25 June 2012, the applicant requested reconsideration of his claim.  The applicant provided a self-authored statement describing his duties as a wing weather officer which subjected him to constant exposure of jet engine noise.

13.  On 10 July 2012, the HRC CRSC Branch reviewed his claim for reconsideration of CRSC and based on the documentation he provided CRSC was once again denied for bilateral hearing loss and tinnitus as the conditions were previously requested and no new evidence was provided to show a combat-related event caused the conditions.  Since this was the final disapproval, his only recourse was to appeal the decision to the Army Review Boards Agency.

14.  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.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The CRSC criteria 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.

2.  The applicant's service medical records, including the complete facts and circumstances surrounding his claimed tinnitus, are unavailable for review with this case.  The available evidence supports that the applicant has a service-connected disability for tinnitus which became progressively worse over time.  However, there is insufficient evidence to support that it was combat- related.

3.  The applicant's contention that his application for CRSC was tainted because he did not submit evidence of his time served in the USAF appears to be without merit.  The evidence of record clearly shows he stated his USAF service in his original application for CRSC and upon reconsideration.

4.  His exposure to military aircraft and crew served weapons throughout his service, are noted.  However, there is insufficient evidence to support that he experienced tinnitus during combat or a tactical combat exercise.  As stated above, the fact that a disability was incurred in a theater of operations or during routine training exercises is insufficient, in and of itself, to warrant approval of CRSC.  It appear he is claiming that while simulating war training supporting the squadron as a wing weather officer he worked with B-52s on a daily basis.  However, there appears to be insufficient evidence to show his hearing loss while working around B-52s would be much different than if he were on a civilian flight line working around 747s (a 4-engine jet).

5.  Without evidence to establish a direct, causal relationship to the applicant's VA rated service-connected disabilities to war or the simulation of war, there is insufficient basis in which to grant his request.



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)                                         AR20140008641



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ABCMR Record of Proceedings (cont)                                         AR20140008641



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