IN THE CASE OF:	  

		BOARD DATE:	  7 May 2015

		DOCKET NUMBER:  AR20140013845 


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, the former spouse of a deceased former service member (FSM), requests Combat-Related Special Compensation (CRSC) or Concurrent Retirement and Disability Payments (CRDP). 

2.  The applicant states according to the attached Department of Veterans Affairs (VA) Rating Decision, dated 22 February 2014, her ex-husband was awarded retroactive benefits (100 percent for coronary artery disease) due to a Federal court case. 
 
3.  The applicant provides:

* Designation of Beneficiary Information
* Claim for Unpaid Compensation of Deceased Member of the Uniformed Services
* FSM's death certificate
* marriage record
* VA Form 21-4138 (VA Statement in Support of Claim)
* letter from U.S. Army Human Resources Command, Fort Knox, KY
* VA letter to her son, dated 3 March 2014
* VA Rating Decision, dated 22 February 2014





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.  On 30 April 1982, the FSM retired in the rank of sergeant first class.

3.  The FSM married the applicant in 1991. 

4.  The FSM died on 1 October 2005.

5.  The applicant provided a VA Rating Decision, dated 22 February 2014, which states:

	a.  The FSM served in the Army from 23 August 1961 to 30 April 1982.  

	b.  The Secretary of the Department of Veterans Affairs established that ischemic heart disease, Parkinson's disease, hairy cell leukemia and other chronic B-cell leukemias warrant presumptive service connection based on the association between exposure to herbicides used in Vietnam and the subsequent development of these conditions.

	c.  Entitlement to an earlier effective date for service connection for coronary artery disease, status post-coronary artery bypass grafting, and automatic implantable cardioverter-defibrillator (AICD) is granted with a 100-percent evaluation effective 25 July 2001 for purposes of entitlement to retroactive benefits. 

	d.  Service connection for scar, residuals of coronary artery bypass graft, and AICD is granted with an evaluation of 0 percent effective 25 July 2001 for purposes of entitlement to retroactive benefits. 


6.  The applicant provided a letter from the VA to her son, dated 3 March 2014, which states:

	a.  The Secretary of the Department of Veterans Affairs recently established that ischemic heart disease, Parkinson's disease, hairy cell leukemia, and other chronic B-cell leukemias warrant presumptive service connection based on the association between exposure to herbicides used in Vietnam and the subsequent development of these conditions.

	b.  The FSM previously filed a claim for coronary artery disease during his lifetime.

	c.  That office conducted a special review of the FSM's claims file mandated by the U.S. District Court's orders in Nehmer v. U.S. Department of Veterans Affairs.

	d.  That office determined that the FSM's son was entitled to retroactive compensation based on being a recognized class member as outlined in the above court order.    

	e.  The applicant was added to the FSM's monthly compensation award effective 25 July 2001, the date he became entitled to an additional allowance for dependents.  The applicant was removed from his award effective 30 November 2002, the last day of the month in which their divorce was final.

	f.  The FSM's son may be entitled to additional accrued benefits based on full or partial concurrent receipt of VA compensation and military retired pay under the CRSC and/or CRDP programs.  The FSM's retired pay center has been notified of this award of VA compensation.  If the FSM's retired pay center determined the withholding from his VA compensation should be retroactively adjusted due to CRSC/CRDP eligibility; the VA will be notified and will adjust his VA compensation accordingly.

	g.  The FSM's son may be entitled to additional accrued benefits based on CRSC for the FSM's service-connected coronary artery disease.  CRSC provides monthly payments to eligible veterans with combat-related disabilities, and is a benefit administered by the Department of Defense.  Entitlement to CRSC is not automatic.  Accordingly, to receive CRSC for the FSM's service-connected coronary artery disease, he must specifically apply for CRSC for that disability, even if he has already been awarded CRSC for disabilities previously connected by VA.

7.  The applicant also provided a letter from U.S. Army Human Resources Command, CRSC, Fort Knox, KY, dated 14 April 2014, to the FSM's estate which states:

	a.  The claim for CRSC was received by that office, but that office is unable to approve the claim for CRSC.

	b.  CRSC is not subject to any of the survivor benefit provisions of Chapter 73, Title 10, U.S. Code according to CRSC, section 636, Public Law 107-314, dated 2 December 2002, section 1413a, Title 10, U.S. Code Program Guidance, dated 21 May 2003.  

8.  The Fiscal Year 2004 National Defense Authorization Act provided a 10-year phase-out of the offset to military retired pay due to receipt of VA disability compensation for members whose combined disability rating is 50 percent or greater.  This provision is referred to as CRDP.  Members retired under disability provisions (Title 10, U.S. Code, chapter 61) must have 20 years of service.

9.  CRSC and CRDP are programs created by Congress in Public Law 108-136 to allow eligible military retirees to receive monthly entitlements in addition to retired pay.  The purpose of these entitlements is to recover some or all of the retired pay that military retirees waive for VA disability compensation.

* CRSC is a special compensation for combat-related disabilities; it is non-taxable and retirees must apply to their Branch of Service to receive it
* CDRP is a restoration of retired pay for retirees with service-connected disabilities and it is taxable; no application is required; eligible retirees receive CRDP automatically

10.  CRDP allows military retirees to receive both military retired pay and VA compensation.  This was prohibited until the CRDP program began on 1 January 2004.  CRDP is a "phase in" of benefits that gradually restores a retiree's VA disability offset.  This means that an eligible retiree's retired pay will gradually increase each year until the phase in is complete in 2014.  If qualified, a member is enrolled automatically.  To be eligible, a member must be eligible for retired pay to qualify for CRDP.  If the member was placed on a disability retirement, but would be eligible for military retired pay in the absence of the disability, the member may be entitled to receive CRDP.  Under these rules, a member may be entitled to CRDP if:

	a.  a regular retiree with a VA disability rating of 50 percent or greater;

	b.  retired under the Temporary Early Retirement Act (TERA) and have a VA disability rating of 50 percent or greater; or

	c.  a disability retiree who earned entitlement to retired pay under any provision of law other than solely by disability, and has a VA disability rating of 
50 percent or greater.  The member might become eligible for CRDP at the time the member would have become eligible for retired pay. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests retroactive CRSC or CRDP associated with the FSM's retired pay.  

2.  Her contentions were carefully considered.  However, since CRSC is not subject to any of the survivor benefits, there is insufficient evidence on which grant her request for CRSC.

3.  By law, eligible retirees receive CRDP automatically.  Therefore, there is no basis for granting her request for CRDP. 

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)                                         AR20140013845





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ABCMR Record of Proceedings (cont)                                         AR20140013845



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