IN THE CASE OF:  

		BOARD DATE:  6 March 2015

		DOCKET NUMBER:  AR20140012318


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, reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision in Docket Number AR20130011899 on 10 April 2014.  Specifically, he requests reversal of the Army's decision to discontinue his entitlement to combat-related special compensation (CRSC) for multiple conditions.    

2.  The applicant states, in effect, there were errors, omissions, and inaccuracies in the way the ABCMR made their decision:

* his prior service was inaccurately stated
* he enlisted in the Army National Guard (ARNG) on 19 October 1973 for 
4 months and 1 day and he enlisted in the Regular Army on 11 November 1974
* he was an 11B50 (Infantryman) Chief Instructor during his last assignment vice a 79S50 (Career Counselor); he was not a small group leader, he was responsible for training Soldiers - this error was administrative
* there was a total disregard for his military and medical records, which clearly show his injuries predate his falling off a ladder as the CRSC Office attributes some of his disabilities to, resulting in their reversal decision
* during half of his career he trained for combat or trained others for combat; thus, his injuries should be classified as "Under Conditions Simulating War" as outlined in Department of Defense Instruction (DODI) 1332.38 (Physical Disability Evaluation (PDE)), dated 14 November 1996


3.  The applicant provides:  

* a personal three-page letter 
* the Army Board for Correction of Military Records (ABCMR) Record of Proceedings (ROP), dated 10 April 2014 and a denial letter, dated 16 April 2014
* 2 DD Forms 214 (Certificate of Release or Discharge from Active Duty)
* a DA Form 2166-7 (NCO Evaluation Report (NCOER)), covering the period 199909–200009
* a copy of Orders 218-004, from the State of New Mexico, Department of Military Affairs, Military Division, Santa Fe, NM, dated 6 August 1997
* Orders 067-003, from the State of New Mexico, Department of Military Affairs, Military Division, Santa Fe, NM, dated 8 March 2001 
* SF 600 (Chronological Record of Medical Care), dated 2 July 1998
* a three-page document titled Combat Related Special Compensation
* an extract of DODI 1332.38 (PDE) 

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20130011899 on 10 April 2014.  

2.  The applicant provides a new argument that errors, omissions, and inaccuracies occurred and medical records were disregarded during the review of his case and his specific Department of Veterans Affairs (VA) rated disabilities; therefore, this new argument warrants consideration by this Board.

3.  A review of the applicant's records reveals the following:

* he had prior service in the ARNG from 19 June 1973 to 19 October 1973
* he enlisted in the Regular Army on 12 November 1974 and he reenlisted in the Regular Army on 31 October 1977
* he was separated from the Regular Army on 30 October 1980
* he enlisted in the ARNG on 12 November 1980
* he reenlisted in the ARNG on 15 December 1982 for service in military occupational specialty (MOS) 00E (Production Recruiter) 
* he was released on 14 December 1982 at the completion of his service
* he reenlisted in the ARNG on 15 December 1982 and served in MOSs 79R (Recruiter) and 79S (Career Counselor)


4.  The applicant retired on 31 July 2001; he was placed on the Retired List in his retired rank/grade of MSG/E-8 on 1 August 2001.   

5.  In March 2005, he was approved for his initial award of CRSC.  He continued to receive CRSC until his entitlement was terminated in or around March 2013.

6.  The applicant provides: 

	a.  Orders 218-004, which reassigned him from an excess status to a Chief Instructor/Writer (11B50) position within the 2nd Battalion, 515th Regiment;  

	b.  An NCOER in which he was rated for his performance of duty as a Small Group Leader (Advanced Noncommissioned Officer Course) (11B50);  

	c.  Orders 067-003, dated 8 March 2001, which assigned him as an instructor, from training sergeant, as a result of "excess, due to retirement";

	d.  An SF 600, dated 2 July 1998, which documents his fall from a ladder at his house;

	e.  A three-page document titled Combat Related Special Compensation that outlines eligibility, definitions and addresses for the program; and

	f.  An extract of DODI 1332.38, which highlights the definition of "under conditions simulating war." 

7.  CRSC, as established by Title 10, U.S. Code, section 1413a, 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 was not 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 percent disabling.

8.  The Under Secretary of Defense, Military Personnel Policy has provided policy guidance on the processing of CRSC appeals.  This guidance 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 or caused by an instrumentality of war.
9.  Title 26, U.S. Code, section 104, states the term "combat-related injury" means personal injury or sickness that is incurred as a direct result of armed conflict; while engaged in extra hazardous service, under conditions simulating war; or which is caused by an instrumentality of war.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for reversal of the Army's previous decision to discontinue his entitlement to CRSC was carefully considered.  

2.  It is understandable that the applicant wants his military service depicted accurately; however, his correct enlistment and reenlistment time periods have no bearing on the classification of his injuries or how either the VA or the CRSC program office awards ratings and entitlements. 

3.  He contends his last assignment was as a Chief Instructor, not Small Group Leader; however, due to an administrative error, his NCOER improperly reflected his duty title.  His principle duty title would have no bearing on the evaluation process used by the VA or the CRSC Program office to determine disability ratings through medical records.  Additionally, service as a Chief Instructor does not, in and of itself, equate to operating in "conditions simulating war." 

4. CRSC exists as an entitlement for those military retirees who have combat-related disabilities, as determined by the Military Department.  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.

5.  The applicant was awarded CRSC in 2005.  Later, after his records were re-reviewed, it was determined that his disabilities were not combat-related.  The CRSC Program office found no evidence of a direct, causal relationship between his VA-rated disabilities and war or the simulation of war.  Without this direct causal relationship, his entitlement to CRSC was stopped.

6.  While it is clear that he disagrees with the ABCMR's earlier decision, he has not provided a convincing argument to sufficiently mitigate the decision of the CRSC Program office.  In view of the above, there is an insufficient basis to grant the 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 to amend the decision of the ABCMR set forth in Docket Number AR20130011899, dated 10 April 2014.



      ____________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)                                         AR20120019431



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ABCMR Record of Proceedings (cont)                                         AR20140012318



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