IN THE CASE OF:	  

		BOARD DATE:	  12 February 2015

		DOCKET NUMBER:  AR20140009832 


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:

	a.  He was injured twice in Grafenwoehr, Germany during his units Army Field Artillery certification.

	b.  He sustained a sprained ankle that turned into tendonitis on 11 May 1969.

	c.  He sustained a broken fingertip that could not be fixed on 13 March 1982.  

	d.  The two injuries occurred during training that was simulating war; therefore he believes they should have been classified as combat-related.

	e.  He believes the unit failed to submit the right paperwork with medical documentation at the time the injuries occurred.  

3.  He provides 4 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 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.  After retiring with 20 years of active duty service, the applicant was recalled to active duty on 22 February 2009.

3.  The applicant submitted 4 pages of his medical records and allied documents, dated between11 May 1979 and 7 July 1983 that show he sought treatment on:

	a.  11 May 1979, for a sprained ankle that he indicated occurred when he stepped into a hole; and

	b.  13 March 1983, for pain and swelling of his left index finger that he indicated started when a projectile was dropped on his finger. 

4.  Effective 21 February 2010, he was honorably released from active duty after serving 1 year and reverted to retired status on the date following release.

5.  On 5 August 2013, the U.S. Army Human Resources Command (HRC), CRSC Branch informed the applicant they reviewed his claim and were unable to award him CRSC for the conditions listed below in accordance with their program guidance.  The Department of Veterans Affairs (VA) Disability Codes, VA Narrative Descriptions, and corresponding VA Disability Percentages evaluated the following conditions which were determined to be:  unverified as combat-related conditions:

* 7005, Hypertensive Heart Disease, 30 percent
* 5242, Degenerative Arthritis of the Cervical Spine, 20 percent
* 5243, Lumbar Intervertebral Disc Syndrome with Thoracolumbar Degenerative Changes with Erectile Dysfunction, 10 percent
* 5229, Healed Fracture; Left Index Finger, 10 percent
* 6260, Tinnitus, 10 percent
6.  The applicant's record is void of any evidence that shows his injuries were a direct, causal relationship to war or the simulation of war.

7.  On 1 October 2013, the HRC, CRSC Branch reviewed the applicant's claim for CRSC and he was again informed they were unable to verify his Hypertensive Heart Disease, Degenerative Arthritis of the Cervical Spine, Lumbar Intervertebral Disc Syndrome with Thoracolumbar Degenerative Changes with Erectile Dysfunction, Healed Fracture, Left Index Finger, and Tinnitus as combat-related.

8.  On 15 November 2013, the 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.  

9.  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.)

10.  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.

11.  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 Department of Defense 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.  Although the evidence shows the applicant was diagnosed with Hypertensive Heart Disease, Degenerative Arthritis of the Cervical Spine, Lumbar Intervertebral Disc Syndrome with Thoracolumbar Degenerative Changes with Erectile Dysfunction, Healed Fracture; Left Index Finger, and Tinnitus 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)                                         AR20140009832



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ABCMR Record of Proceedings (cont)                                         AR20140009832



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