IN THE CASE OF:	  

		BOARD DATE:	  26 February 2015

		DOCKET NUMBER:  AR20140010463 


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 U.S. Army Human Resources Command (HRC) decision denying him combat-related special compensation (CRSC).

2.  The applicant states, in effect:

	a.  He lacked sufficient proof when he submitted his earlier claims for CRSC.  He now believes he has the required medical records, military documents, and paperwork from the Department of Veterans Affairs (VA).  Additionally, a VA representative looked at his documents and said he should appeal.

	b.  The 2008 National Defense Authorization Act (NDAA) expanded CRSC.  Based upon this NDAA, he contends the injury to his lower back should be found to be combat-related because, at the time of the injury, he jumped off a combat vehicle (5 ton truck) while simulating combat during a field training exercise.  Additionally, his left shoulder injury should be found to be combat-related because it was incurred while negotiating an obstacle course.

3.  The applicant provides:

* denial letter from HRC, dated 24 March 2014
* webpage from Military.Com explaining CRSC
* printout showing eligibility requirements for CRSC
* DD Form 2860 Test (Application for CRSC), dated 10 June 2014
* two DD Forms 214 (Certificate of Release or Discharge from Active Duty)
* Order removing him from the Temporary Disability Retired List (TDRL) and permanently retiring him
* Notification of Eligibility for Retired Pay at Age 60 (20-year letter)
* service computation for separation
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings) with a convene date of 27 July 2011
* letter from the VA, dated 23 December 2009
* MCXM-THP-PA Form 711 (Authorization for Treatment of Reserve and National Guard Personnel not on Active Duty), dated 7 May (no year)
* two DD Forms 689 (Individual Sick Slip), dated in June 1994
* two DA Forms 2173 (Statement of Medical Examination and Duty Status), dated 2 January 1996 and 1 December 2007, respectively
* order to active duty for training
* selected health records
* United States Uniformed Services Identification Card
* AHRC Form 4143 (Enlisted Record Brief - Active Guard Reserve (AGR))

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 4 December 1984.  After initial training, he was awarded military occupational specialty (MOS) 55R (Interior Electrician).  He was honorably released from active duty on 21 December 1987.  His DD Form 214 shows he served a total of 3 years and 18 days of net creditable active service this period.  

2.  Records show he was in an inactive Reserve status until 27 September 1989, when he is shown as being in the U.S. Army Reserve (USAR) in the MOS of 19D (Cavalry Scout).  He served in various positions until, on 5 November 2000, he became an AGR Army Reserve Career Counselor (MOS 79V).  He served in this MOS until 27 May 2009.  His DD Form 214 for this period of service shows he was retired by reason of temporary disability with 8 years, 6 months, and 23 days of total net creditable active service this period.  

3.  His records contain a line of duty investigation regarding the injury of the applicant's left shoulder occurring in June 1994.  The DA Form 2173 was completed on 2 January 1996 and states the applicant injured his left shoulder during physical training.  In a cover indorsement, issued by Headquarters, U.S. Army Armor Center and Fort Knox, dated 19 March 1996, the injury is found to be "in line of duty."



4.  On 20 July 2007, HRC notified the applicant he had completed the required years of qualifying Reserve service to be eligible for retired pay at age 60.

5.  As a result of a PEB, the applicant was placed on the TDRL effective 28 May 2009 with a total disability rating of 40 percent.  The PEB found the following conditions unfitting for continued military service and not as a result of a combat-related injury:

* rheumatoid arthritis in both hips, both knees, and both ankles
* degenerative arthritis of the cervical spine
* right rotator cuff disease resulting from a motor vehicle accident in 2005

6.  The PEB also determined the following medical conditions, previously identified by a medical evaluation board, were not unfitting:

* left shoulder pain, rotator cuff disease resulting from a physical training injury
* low back pain, degenerative disc disease a the lumbosacral spine resulting from jumping off a truck in 1986
* right carpal tunnel syndrome
* diabetes mellitus
* headaches

7.  In a 20 August 2010 rating decision, the VA recognized a service-connection for 21 medical conditions.  The following conditions were included:

* cervical spine degenerative joint disease, previously denied in 1999 and determined to be a result of an automobile accident in 2005 which was found to be in line of duty
* lumbar spine degenerative joint disease, previously denied in 1999 and resulting from the automobile accident in 2005 
* post-traumatic stress disorder, resulting from the 2005 automobile accident
* left (minor) shoulder degenerative arthritis, resulting from physical training in 1994

8.  On 27 October 2010, the applicant submitted his first claim for CRSC, requesting compensation for the following conditions:

* cervical spine degenerative joint disease
* lumbar spine degenerative joint disease
* post-traumatic stress disorder

9.  On 14 December 2010, HRC informed the applicant, while the documents submitted showed a service-connection, he had not provided evidence linking those conditions to a combat-related event.

10.  The applicant resubmitted his claim, adding "left (minor) shoulder degenerative arthritis), and offering the DA Form 2173 showing a left shoulder injury resulting from physical training.  On 27 January 2011, HRC responded by stating the applicant had not provided the necessary evidence to support the award of CRSC.  Additionally, in regard to the left shoulder injury, HRC cited Department of Defense (DOD) guidance which said physical training injuries did not qualify as being combat-related.

11.  The applicant requested reconsideration of HRC's decision, and offered additional documentation, which included an orthopedic report dated 5 February 1996 which noted the applicant's left shoulder injury as having resulted from participation in an obstacle course 1 1/2 years prior.  On 18 March 2011, HRC responded saying the additional documentation still did not establish a link between the conditions identified and a combat-related event.  It was also stated, participation in an obstacle course was considered to be physical training, which as previously noted, did not qualify as being combat-related.

12.  Order 269-12, dated 26 September 2011, issued by U.S. Army Physical Disability Agency, shows the applicant was removed from the TDRL and permanently retired with a disability rating of 60 percent.  His Service Computation for Separation form, dated 2 April 2009, shows a total of 24 years, 8 months, and 16 days service for basic pay purposes.

13.  On November 2011, HRC sent their final decision on the applicant's claim.  For each condition identified by the applicant, HRC found no new evidence was provided to support the award of CRSC.

14.  The applicant sent in a second request for reconsideration.  On 24 March 2014, HRC notified him they would not act upon his request, noting their 18 November 2011 decision was final.  He was referred to the Army Board for Correction of Military Records to resolve his claim.

15.  The applicant provides:

* a completed DD Form 2860 TEST, dated 10 June 2014, wherein he requests CRSC payment for his left shoulder and lower back injuries
* a TDRL narrative summary, dated 21 April 2011, in which the examining physician notes the applicant's explanations for his lower back (from jumping from a 5 ton truck) and left shoulder pain (from participating in an obstacle course)
* two DD Forms 689, both dated 16 June 1994, one of which prescribes soft shoes and no physical training, the other notes blisters on both feet and hurt left shoulder
* one MCXM-THP-PA Form 711, with a date of 7 May (no year) shows an authorization to receive treatment for shoulder pain
* an automated version of Standard Form 600 (Medical Record - Chronological Record of Medical Care), dated 5 February 1996, completed by a physician at the Ireland Army Hospital Orthopedic Clinic, Fort Knox, KY, stating the applicant injured his left shoulder in an obstacle course 1 1/2 years prior; no source for this comment is cited

16.  CRSC, as established by Title 10, USC, section 1413a, and 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 weren'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 cause by an instrumentality of war.  Such disabilities must be compensated by the VA and rated at least 10% disability.  Military retirees who are approved for CRSC must have waived a portion of their military retired pay because CRSC requires the Military Department to return a portion of the waived retired pay to the military retiree.

17.  In program guidance provided by DOD on 15 April 2004, a combat-related disability is defined as having been incurred:

	a.  as a direct result of armed conflict;

	b.  while engaged in hazardous service, such as aerial flight, parachute duty, demolition duty, or diving duty;

	c.  from an instrumentality of war, such as an armored vehicle designed primarily for military service; or

	d.  in the performance of duty under conditions simulating war; where the injury resulted from military training such as war games, practice alerts, tactical exercises, leader-reaction courses, and obstacle courses.  It does not include physical training activities.

18.  Effective 1 January 2008, DOD implemented supplemental guidance as a result of the enactment of the NDAA for Fiscal Year 2008.  This change provided special rules for CRSC eligible retirees with fewer than 20 years of service who retired under chapter 61 (Retirement or Separation for Physical Disability) of Title 10, U.S. Code, and for Temporary Early Retirement Authority (more than 15 but less than 20 years of total active service) retirees.  Applicants who were previously determined to be ineligible because they had not completed 20 years of creditable service could now be eligible and should reapply.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should receive CRSC for his left shoulder and lower back injuries.  He asserts:

	a.  The left shoulder injury is eligible because the injury was incurred while participating in an obstacle course.  Participation in obstacle courses is specifically identified as qualifying in DOD guidance.

	b.  The lower back injury is eligible because the injury was incurred while exiting a 5 ton military vehicle during simulated combat as part of a field training exercise.  

2.  As part of the CRSC eligibility criteria, the applicant must have disabilities that are the direct result of armed conflict, hazardous military duty, training exercises that simulate war, or caused by an instrumentality of war.  

3.  The evidence offered is almost sourced entirely from the applicant; no independent evidence has been submitted.

	a.  The applicant claims his lower back injury was incurred during a field training exercise wherein combat was simulated.  His records are void of any reference to this incident, and the applicant provides no other evidence.

	b.  The orthopedic clinic note states the left shoulder injury resulted from the applicant's participation in an obstacle course; but no source (such as medical records) is cited.  It is likely the applicant gave the physician this information when asked to provide a history of his injury.

	c.  The TDRL narrative summary addresses both the applicant's shoulder and lower back injuries, and the applicant is the source as to how these injuries were incurred.


4.  The injury to his left shoulder does not meet CRSC criteria.  The LOD investigation conducted in 1996 states the left shoulder injury was incurred during a physical training event.  DOD guidance states physical training is not considered to be combat-related. 

5.  Without evidence to establish a direct, causal relationship of the applicant's disabilities to direct armed conflict 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)                                         AR20140010463



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ABCMR Record of Proceedings (cont)                                         AR20140010463



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