IN THE CASE OF:	  

		BOARD DATE:	  17 March 2015

		DOCKET NUMBER:  AR20140013495 


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 correction of his records to show he is entitled to Combat-Related Special Compensation (CRSC) for the disability of degenerative disc disease (DDD).

2.  The applicant states his treatment for his back condition and the combat action that covered the wreck cannot be located in any military medical record.  His records were lost, filed incorrectly, or just did not get transferred to the hospital that maintained his records.  He trained on the demilitarized zone (DMZ), Korea, working with a separate battalion.  Therefore, they did not have medical services like other units.

3.  The applicant provides:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a letter to himself from the U.S. Army Human Resources Command (HRC), dated 7 May 2014
* DD Form 2860 (Claim for CRSC), dated 3 March 2014
* four pages of mail, dated between 21 January and 26 February 2014
* six Department of Veterans Affairs (VA) letters or rating decisions, dated between 29 September 2005 and 3 September 2013
* two letters, dated 17 November 1993 and 11 March 2007
* a Certificate of Retirement, dated 1 September 1995
* two pages of photographs 


CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 20 August 1975.  He was promoted to the rank/grade of sergeant first class (SFC)/E-7 on 13 September 1987. 

2.  He served in Korea from 7 May 1990 to 17 July 1991 while assigned to the 122nd Signal Battalion, and from 22 May 1993 to 19 May 1994 while assigned to the 44th Engineer Battalion.

3.  He was retired from active duty on 31 August 1995 in the rank of SFC and placed on the Retired List on 1 September 1995.

4.  On an unknown date, the VA granted him service-connected disability for tinnitus with an evaluation of 10 percent (%) effective 1 September 1995.

5.  The applicant provides a VA Rating Decision, dated 29 September 2005, wherein it stated, in part:

	a.  He was granted service-connection for DDD, lumbar spine, status post fusion with an evaluation of 10% effective 2 April 2004.  A review of his service medical records showed treatment for multiple back strains.  He contended service connection for a back condition as a result of a truck accident.  He submitted service records, pictures, articles, and various lay statements which confirmed he was involved in a truck accident while in the service.

	b.  An examination dated 1 September 2005 was reviewed, he had reported a history of low back pain for about 30 years and described the pain as constant with difficulty bending and lifting (emphasis added).  The examiner opined that it was at least as likely as not that his back condition was related to his initial injury in the service.

6.  On an unknown date, he submitted a claim for CRSC.  His claim for CRSC was approved at 10% for tinnitus as they were able to verify it was linked to a combat-related situation.  His claim for CRSC for DDD was denied as there was no evidence provided to show a combat-related event caused the condition.

7.  The VA subsequently increased his evaluation for DDD, lumbar spine, status post fusion, from 10% to 20% effective 7 April 2009.  The applicant subsequently resubmitted his claim for CRSC for DDD.

8.  In a letter dated 27 December 2011, HRC denied his request for reconsideration of his previous request for CRSC for DDD.  The letter stated he was previously awarded 10% CRSC for tinnitus and he was denied CRSC for DDD as documentation he submitted still showed no new evidence to link his condition to a combat-related event.  It also stated the disapproval was considered final and he may appeal the determination to the Army Discharge Review Board.

9.  The applicant provides two emails, dated 24 February 2014 and 26 February 2014, wherein two former unit members stated they thought they remembered an accident that occurred in Korea in 1993 during a military exercise but neither could recall the specific details of the accident.  Neither individual stated that they remembered the applicant had been injured in the accident.

10.  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-percent disabling.  Military retirees who are approved for CRSC must have waived a portion of their military retired pay since CRSC consists of the Military Department returning a portion of the waived retired pay to the military retiree.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he is entitled to CRSC for degenerative disc disease.

2.  CRSC 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 that the disability was incurred while engaged in combat, while performing duties simulating combat conditions, or while performing especially hazardous duties.

3.  The evidence of record does not show and the applicant did not provide any evidence that shows his degenerative disc disease was related to a specific event that was incurred while engaged in combat, while performing duties simulating combat conditions, or while performing especially hazardous duties.  Therefore, it does not meet the criteria for CRSC.

4.  Notwithstanding his contention that he injured his back in a military vehicle accident while in Korea, although he provided emails from two former unit members they stated they remembered there may have been a vehicle accident during an exercise in Korea, neither stated the applicant was injured in the accident.

5.  Regardless, he has not provided any medical evidence that shows he was treated for a back injury as a result of a military vehicle accident while performing especially hazardous duties that directly resulted in his condition of degenerative disc disease.  He provided a VA Rating Decision wherein it showed he was diagnosed with degenerative disc disease and the examiner stated there was a 50/50 probability that his back condition was the result of service-connected truck accident.  However, there was no mention or verification of when or under what conditions the accident may have occurred.

6.  In view of the foregoing, he is not entitled to 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 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)                                         AR20140013495





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ABCMR Record of Proceedings (cont)                                         AR20140013495



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