IN THE CASE OF:	

		BOARD DATE:	  22 September 2015

		DOCKET NUMBER:  AR20140017427 


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 reconsideration of his previous request for award of combat-related special compensation (CRSC) for injuries/conditions not previously considered qualifying.  In addition, he requests a personal appearance hearing. 

2.  The applicant states he is thankful for the Army Board for Correction of Military Records (ABCMR)'s prompt examination of his request.  However, he believes that crucial information substantiating his case has been overlooked in denying his claim and he would like the opportunity to rebut the findings, specifically points 1 through 3 in the discussion and conclusions section of the Board's Record of Proceedings.  

3.  He has proof that his injuries were caused by combat and these same injuries are those for which he receives treatment and disability compensation from the Department of Veterans Affairs (VA).  Therefore, he would like the opportunity to appear at a personal hearing to present any and all substantiating information needed to satisfy the CRSC guidelines as directed by Title 10, U.S. Code (USC), section 1413a.  

4.  He specifically rebuts paragraphs 1 through 3 of the discussion and conclusions section of the Board's Record of Proceedings in ABCMR Docket Number AR20130020219, dated 31 July 2014:

	a.  Paragraph 1 of the discussion and conclusions:  

		(1)  Paragraph 1 states "The applicant's requests for CRSC were denied because the available evidence failed to show his medical conditions were combat related.  He has not provided any additional documentary evidence to indicate otherwise."

		(2)  The applicant rebutted this paragraph by stating he provided the VA medical center's doctor report stating he has PTSD with guidance on how to file a VA claim for compensation.

	b.  Paragraph 2 of the discussion and conclusions:  

		(1)  Paragraph 2 states "The 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 the disability was incurred while engaged in combat or while performing duties simulating war."

		(2)  The applicant rebutted this paragraph by stating he served in a named combat zone where he sustained injuries that are the basis of his request.  Award of the Combat Action Badge would have been sufficient to show he sustained his injuries in a named combat zone and this is the basis for his request.  Additionally, the applicant posed the following questions to the Board:

			(a)  In effect, if serving and sustaining injuries in a named combat zone and receiving the Combat Action Badge are considered insufficient documentation to prove entitlement to CRSC, what document was used prior to 2005?

			(b)  What documentation did other veterans who were awarded CRSC provide to prove entitlement to CRSC prior to 2005?

			(c)  Is this personal, and like most other things in the military based upon the premise that rank has it privileges?

	c.  Paragraph 3 of the discussion and conclusions:

		(1)  Paragraph 3 states "Without evidence to establish a direct, causal relationship of the applicant's VA-rated disabilities to war or the simulation of war, there is an insufficient basis on which to grant his request."

		(2)  The applicant rebutted this paragraph by stating he provided a copy of the accident report related to the incident in 1991.  This report stated the location where he sustained his injuries in the Gulf War.
5.  The applicant provides the following new evidence:

* self-authored statement/rebuttal, dated 1 October 2014
* letter from the ABCMR, dated 6 August 2014
* ABCMR Docket Number AR20130020219, dated 31 July 2014
* DA Form 638-1 (Recommendation for Award (For Other than Valor) of the Army Achievement Medal, Army Commendation Medal, and the Meritorious Service Medal), dated 8 April 1991
* Certificate for Award of the Army Commendation Medal, dated 28 June 1991
* Certificate and citation for Award of the Meritorious Unit Commendation, dated 27 May 1992
* Combat Action Badge Information, dated 4 January 2011
* letter from the Disabled American Veterans (DAV), dated 3 January 2014
* VA rating decision, dated 29 August 2013

6.  The applicant provides the following previously considered evidence:

* U.S. Army Mishap Report Information, dated 14 December 2005
* Emergency Care and Treatment Record, dated 5 March 1991
* May 2008 edition of the Gulf War Review, published by the VA

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 AR20130020219, on 31 July 2014.

2.  The applicant provides new evidence and argument that was not previously considered by the Board.  Therefore, it warrants consideration by the Board.

3.  The applicant enlisted in the Regular Army on 21 June 1983 and served through numerous reenlistments and extensions in a variety of stateside and overseas assignments.  He held military occupational specialties 77F (Petroleum Supply Specialist) and 71L (Administrative Specialist) and attained the rank/grade of sergeant first class (SFC)/E-7.  

4.  His DA Form 2-1 (Personnel Qualification Record - Part II) shows he was assigned to:

* Korea, from 22 November 1983 to 21 November 1984
* Germany, from 23 April 1987 to 17 December 1990
* Saudi Arabia, from 18 December 1990 to 25 May 1991
* Germany, from 26 May 1991 to 23 June 1993
* Germany, from 16 February 1999 to 31 March 2003

5.  The applicant previously provided a U.S. Army Mishap Report Information sheet which shows, on 5 March 1991 at 1045 hours, he was involved in a motor vehicle accident at an undetermined training area.  

6.  He previously provided an Emergency Care and Treatment Record and a Standard Form (SF) 600 (Chronological Record of Medical Care), dated 5 March 1991, which show he was treated at the 148th Medical Evacuation Hospital on     5 March 1991 for complaints of right hip pain resulting from an automobile crash and a headache. The medical notes show he sustained a laceration to the middle finger of his left hand, abrasions and lacerations on the posterior side of his right elbow, abrasions to his right shoulder and right hip, and a large bruise on his right thigh.

7.  He provided a DA Form 638-1 (front page only), dated 8 April 1991, which shows he was recommended for award of the Army Commendation Medal for achievement while serving in support of his unit's mission in Operations Desert Shield and Desert Storm during pre-deployment, deployment, and re-deployment phases.

8.  He provided an Army Commendation Medal Certificate, dated 28 June 1991, annotated with Permanent Orders Number 23-8, which awarded him the Army Commendation Medal for achievement while assigned as an assistant Noncommissioned Officer in Charge (NCOIC) during Operations Desert Shield and Desert Storm, during the period 14 February 1991 to 23 February 1991.

9.  He provided a Meritorious Unit Commendation and certificate, dated 27 May 1992, which shows his unit was cited for the Meritorious Unit Commendation for the period 16 December 1990 to 6 May 1991.

10.  He previously provided a letter from a German doctor, dated 22 February 2001, which states the doctor diagnosed him with depressed mood, hyperalgesia (abnormally heightened sensitivity to pain), fibromyalgia, medial shin bone syndrome, and pes plano-valgus (flatfoot).  

11.  He previously provided an SF 600, dated 5 February 2003, which shows he was seen at the Landstuhl Regional Hospital for complaints of right eye pain and sensitivity.  The applicant noted he had been hit in the right eye 7 years prior and had recently been poked in that eye with something that had caused an abrasion.

12.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably retired on 30 June 2003 by reason of sufficient service for retirement.  His DD Form 214 does not list any awards typically associated with participation in active ground combat, such as the Combat Action Badge or the Purple Heart.

13.  He previously provided a VA PTSD stressor decision, dated 3 August 2010, wherein the applicant's claimed stressor shows he stated he was in fear for his life while providing intelligence information while serving in the Kingdom of Saudi Arabia in support of Operations Desert Shield and Desert Storm.  The VA decided he was likely to have feared for his life during Operation Desert Storm/Shield; therefore, the VA considered his PTSD to be service-connected.

14.  In a letter, dated 22 December 2010, the U.S. Army Human Resources Command (HRC), CRSC Branch informed the applicant:

	a.  The HRC, CRSC Branch denied his request for the medical conditions below because they were unable to verify the conditions were combat-related disabilities. 

* eczema
* hypertension
* hypertensive heart disease
* PTSD
* obstructive sleep apnea

	b.  This letter also included the statement below:

IMPORTANT INFORMATION TO RETIREE FROM THE CRSC ANALYST:  Your claim for [CRSC] did not provide us with the necessary evidence to award CRSC at this time for… [your conditions of eczema, hypertension, hypertensive heart disease, and obstructive sleep apnea].  The VA rating decision you provided did not indicate that these were combat-related conditions.  The evidence does prove that these conditions are service-connected, but does not allow us to award them as combat-related.  Additionally, you requested consideration for… PTSD.  Your VA narrative states, "your stressors were related to your fear of hostile military or terrorist activity."  However, this statement is insufficient to link your stressor to a specific combat-related event…


15.  In a letter, dated 23 June 2011, the HRC, CRSC branch informed the applicant:

	a.  The HRC, CRSC branch denied his request for the medical conditions below because they were unable to verify these conditions were combat-related disabilities. 

* acne - face, neck, back, and chest
* hypertension
* hypertensive heart disease associated with hypertension
* PTSD
* obstructive sleep apnea

	b.  This letter also included the below statement:

IMPORTANT INFORMATION TO RETIREE FROM THE CRSC ANALYST:  We have reconsidered your claim for CRSC based on an inquiry from the office of Senator Jim Webb.  After reviewing the documentation you submitted regarding your PTSD, we are still unable to determine that condition to be combat-related.  To award PTSD, Department of Defense guidance requires the CRSC Branch to confirm a combat award, such as but not limited to the Combat Action Badge, or to verify in official documentation a specific combat stressor responsible for the onset of the condition.

The VA awarding service-connection for PTSD based solely on "fear of hostile military or terrorist activity" is an easing standard used only by the VA and cannot be used by the CRSC Branch in combat determinations.  If you can acquire additional documentation that shows your PTSD was caused by a verifiable combat stressor, please forward it to our office with a Reconsideration Request CRSC Form 12e.  In cases like this, such documentation can include unit records, Line of Duty Investigations, and/or Medical Evaluation Board and Physical Evaluation Board proceedings.

16.  He provided a VA rating decision, dated 29 August 2013, that shows the VA awarded him the below percentages of disability for the following conditions (conditions listed below are only those considered but denied for CRSC):

* eczema, contact dermatitis hands and wrists, service connected, peacetime, incurred – 0 percent (%)
* acne - face, neck, back, and chest, service connected, peacetime, incurred - 10%
* hypertension, service connected, gulf war, incurred – 10%
* hypertensive heart disease associated with hypertension, service connected, Gulf War, secondary, static disability – 60%
* obstructive sleep apnea, service connected, Gulf War, incurred – 50%
* PTSD, service connected, Gulf War, incurred – 30%
* right shoulder degenerative joint disease, service connected, peacetime, incurred, static disability – 10%
* excision, benign mass, neck scar, service connected, Gulf War, 
incurred – 0%

17.  He submitted a CRSC Form 12e, dated 11 September 2013, wherein he stated he was requesting reconsideration because he had been awarded the following additional conditions by the VA which may qualify for CRSC:

* right shoulder degenerative joint disease 
* PTSD

18.  In a letter, dated 27 September 2013, the HRC, CRSC branch informed the applicant:

	a.  The HRC, CRSC branch stated that, after reviewing all the documentation in support of the applicant's claim, they were unable to overturn the previous adjudications.  The documentation the applicant submitted still showed no new evidence to link his requested conditions to a combat-related event.   As such they denied his request for the medical conditions below because they were unable to verify these conditions were combat-related disabilities. 

* right shoulder degenerative joint disease
* excision, benign mass, neck scar
* hypertension
* hypertensive heart disease associated with hypertension
* PTSD
* obstructive sleep apnea

	b.  This letter further informed the applicant that this disapproval was now considered final; however, the applicant could choose to appeal to the ABCMR.

19.  The applicant previously provided a series of email traffic ranging in date from 29 October 2013 to 1 November 2013 between himself and the Chief of the CRSC Branch.

	a.  In an email, dated 29 October 2013, to the Chief, CRSC Branch the applicant stated, in effect, everyone he had spoken to using the HRC 1-800 phone number (Sergeant (SGT) M and Ms. KR) gave him a different answer and that was not professional customer service and he would appreciate one knowledgeable point of contact that could assist him in handling and processing his requests.   He stated he received the CRSC's final denial letter, dated 27 September 2013.  However, the post mark date on the envelope was 23 October 2013, which was also the same day he called to speak to SGT M.  He was concerned about the customer service he received and stated that the poor customer service he received led him to "believe that the sole decision [to deny his request] was based on opinion and not [upon the] factual documentation [he provided]."  He also indicated that this was causing him a great deal of undue stress and requiring additional, but unnecessary actions to take place.  He further stated he wondered, "if someone did an audit and compared his record to someone with the same issues what they would find."  

		(1)  The applicant then provided the following series of events:

			(a)  He contacted the HRC 1-800 phone number and was given an email point of contact; he used the emails provided and received no response.

			(b)  Ms. KR called him asking for a code the VA had not put on his current rating decision and she stated she would not process his claim if he failed to provide the information she requested.

			(c)  He faxed the information, emailed the information, and he called her but she never responded to any of his attempts to make contact.

			(d)  On 4 October SGT M called him and left a message stating HRC had a system that could track how many times a person called.  He informed 
SGT M he had provided him with an incorrect spelling of his name.  The applicant wondered why no one called him back or responded to his email if there was a tracking system in place and stated that when SGT M called him he could hear other people laughing in the background about what he was saying.

			(e)  The letter he received, dated 27 September 2013, came in an envelope post marked on 23 October 2013, the same day he spoke with SGT M.

		(2)  The applicant referred to an attached document and stated it was in his file and then stated that if there was a system that tracks and records messages he suggested that the Chief, CRSC Branch review this system.

		(3)  With respect to his claim, the applicant stated that all the documents were in his file unless someone in the CRSC office misplaced them; these documents were all submitted with his first submission.

			(a)  The applicant referred to the denial of his right shoulder injury as a result of a motor vehicle accident 1991, indicating he was in Saudi Arabia, and indicated he provided the CRSC Branch with a copy of the accident report as supporting documentation.
  
			(b)  The applicant referred to his denial for PTSD and indicated a copy of his medical records were attached to show he was diagnosed with depression/mood in dealing with "the issue."

		(4)  He finally stated that he could see, maybe, why his claim for PTSD was denied, but stated the injury to his shoulder was "a no brainer."  He went on to say "it's just wrong for people to make [a] decision [just] because [they feel like it].  There isn't anything wrong with my military record, but someone [is] being unprofessional just because [they feel like it]."

	b.  On 30 October 2013, the Chief, CRSC, Branch responded to the applicant's email and stated that the decision to deny the applicant's claim had nothing to do with customer service, timeliness of processing, or missing documents.  In fact, the Chief, CRSC Branch had reviewed the applicant's file.  The Chief stated, rather than re-adjudicating the applicant's claim or debating the merits of his application via email, he would let the Army Review Boards Agency (ARBA) review the case and render a decision, since the applicant certainly had a right to appeal his decision through ARBA.  Lastly, the Chief wished him luck in his ARBA review.

	c.  On 1 November 2013, the applicant responded to the email from the Chief, CRSC Branch.  The applicant stated that he disagreed with the Chief's opinion that the decision to deny the applicant's claim had nothing to do with customer service, timeliness of processing, or missing documents.  The applicant referred to the Chief's statement indicating the applicant had a right to appeal to ARBA, but asked what he would be appealing and stated that his records were correct.  The applicant went on to say that the VA, the issues, and the documents he provided show the environment and location of his injury.  Lastly, he stated "instead of giving me the run around, what are the other possible [avenues] to have my record adjudicated without a bias[ed] opinion.  I also wonder if there are other cases like [mine] that were approved.  Let me know if there are other approaches to take, because I don't believe… [this is an issue for]… ARBA, but if this is the only [possibility] let me know."

20.  The applicant applied to the ABCMR on 29 October 2013 and requested award of CRSC for injuries/conditions not previously considered qualifying.  His request was denied in ABCMR Docket Number AR20130020219, dated 31 July 2014.

21.  The applicant requested the ABCMR reconsider his previous request and provided a document entitled Combat Action Badge Information.  This document outlines the eligibility criteria for this award.  

22.  The Office of the Under Secretary of Defense for Military Personnel Policy provided guidance for the processing CRSC appeals.  This guidance stipulated 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.

23.  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 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.  The term "combat-related disability" means a disability that is compensable under the laws administered by the Secretary of Veterans Affairs and that is attributable to an injury for which the member was awarded the Purple Heart; or was incurred (as determined under [the below] criteria prescribed by the Secretary of Defense):

* as a direct result of armed conflict;
* while engaged in hazardous service;
* in the performance of duty under conditions simulating war; or
* through an instrumentality of war

24.  Army Regulation 600-8-22 (Military Awards) states the requirements for award of the Combat Action Badge are branch and MOS immaterial.  Assignment to a combat arms unit or a unit organized to conduct close or offensive combat operations or performing offensive combat operations is not required to qualify for the Combat Action Badge.  However, it is not intended to award the Combat Action Badge to all Soldiers who serve in a combat zone or imminent danger area.  The Soldier must be performing assigned duties in an area where hostile fire pay or imminent danger pay is authorized.  The Soldier must be personally present and actively engaging or being engaged by the enemy and performing satisfactorily in accordance with the prescribed rules of engagement.  The Soldier must [not] be assigned or attached to a unit that would qualify the Soldier for the Combat Infantryman Badge or the Combat Medical Badge.  Award of the Combat Action Badge is authorized from 18 September 2001 to a date to be determined.  Only one Combat Action Badge may be awarded during a qualifying period.

25.  Army Regulation 600-8-22 states the Purple Heart is awarded for a wound sustained while in action against an enemy or as a result of hostile action.  Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record.

26.  Army Regulation 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record. The ABCMR will decide cases on the evidence of record.  It is not an investigative body. The ABCMR may, in its discretion, hold a hearing.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for reconsideration of his previous request for award of CRSC for injuries/conditions not previously considered qualifying and a personal appearance hearing was carefully considered.

2.  The applicant's request for a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the ABCMR.  Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.


3.  The CRSC criteria are specifically for military retirees who have combat-related disabilities.  Incurring disabilities while in a theater of operations 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.

4.  The VA stated his condition of eczema, contact dermatitis hands and wrists, was service-connected but peacetime incurred.  The VA awarded him a 0% disability rating for this condition.  However, this condition did not qualify for CRSC because it did not meet the criteria stated in Title 10, USC, section 1413a in that the VA rated this condition as less than 10% disabling and the condition was incurred during peacetime.

5.  The VA stated his condition of acne, face, neck, back, and chest, was service-connected but peacetime incurred.  The VA awarded him a 10% disability rating. However, this condition did not qualify for CRSC because it did not meet the criteria stated in Title 10, USC, section 1413a in that, while the VA did rate this condition as 10% disabling, this condition was incurred during peacetime, and not as a result of a specific incident that occurred on a specific date in time as a direct result of armed conflict, being engaged in a specific and especially hazardous military duty, being engaged in a training exercise that simulated war conditions, or by an instrument of war. 

6.  The VA stated his condition of hypertension was service-connected, Gulf War incurred, meaning the condition was identified as having begun during or near the time of his Gulf War service.  The VA awarded him a 10% disability rating.  However, this condition did not qualify for CRSC because it did not meet the criteria stated in Title 10, USC, section 1413a in that, there was no documentary evidence, medical or otherwise to show that this condition resulted from a specific incident that occurred on a specific date in time as a direct result of armed conflict, being engaged in a specific and especially hazardous military duty, being engaged in a training exercise that simulated war conditions, or by an instrument of war. 

7.  The VA stated his condition of hypertensive heart disease associated with hypertension was service-connected, Gulf War incurred, secondary, static disability, meaning this condition was incurred as a result of or secondary to his condition of hypertension, which was identified as having begun during or near the time of his Gulf War service. The VA awarded him a 60% disability rating.  However, this condition did not qualify for CRSC because it did not meet the criteria stated in Title 10, USC, section 1413a in that, there was no documentary evidence, medical or otherwise to show that this condition resulted from a specific incident that occurred on a specific date in time as a direct result of armed conflict, being engaged in a specific and especially hazardous military duty, being engaged in a training exercise that simulated war conditions, or by an instrument of war.  

8.  The VA stated his condition of obstructive sleep apnea was service-connected, Gulf War incurred, meaning the condition was identified as having begun during or near the time of his Gulf War service.  The VA awarded him a 50% disability rating.  However, this condition did not qualify for CRSC because it did not meet the criteria stated in Title 10, USC, section 1413a in that, there was no documentary evidence, medical or otherwise to show that this condition resulted from a specific incident that occurred on a specific date in time as a direct result of armed conflict, being engaged in a specific and especially hazardous military duty, being engaged in a training exercise that simulated war conditions, or by an instrument of war.  

9.  The VA stated his condition excision, benign mass, neck scar, was service-connected, Gulf War incurred, meaning the condition was identified as having begun during or near the time of his Gulf War service.  The VA awarded him a 0% disability rating for this condition.  However, this condition did not qualify for CRSC because it did not meet the criteria stated in Title 10, USC, section 1413a in that the VA rated this condition as less than 10% disabling.

10.  The VA stated his condition of PTSD was service-connected, Gulf War incurred, meaning the condition was identified as having begun during or near the time of his Gulf War service.  The VA awarded him a 30% disability rating, stated his PTSD stressor was related to his fear of hostile military or terrorist activity, and decided to rate him for PTSD because he "mostly likely feared for his life."  However, this condition did not qualify for CRSC because it did not meet the criteria stated in Title 10, USC, section 1413a in that, there was no documentary evidence, medical or otherwise to show that this condition resulted from a specific incident that occurred on a specific date in time as a direct result of armed conflict, being engaged in a specific and especially hazardous military duty, being engaged in a training exercise that simulated war conditions, or by an instrument of war.  

	a.  More specifically, the reason the VA rated him for PTSD is because he most likely feared for his life during his deployment.  This is a very broad and general reason.  To qualify for CRSC there would have to be a specific traumatic event or incident that caused this stressor that resulted in his PTSD and the incident or event would have to have been documented.  For example, a Soldier was involved in active ground combat, an especially hazardous duty, or a training exercise simulating war on a specific date and experienced a traumatic event like witnessing a fellow Soldier's death or perhaps some other specific traumatic event which caused them to fear for their life.  If the event in question was documented, and the later diagnosis of PTSD can be shown to have been caused by that event, the Soldier may qualify for CRSC.

	b.  When a Solder has been awarded a Combat Action Badge, it may help make a determination for CRSC but only if that person is later diagnosed with PTSD as a direct result of the incident for which the award was given.  However, a veteran would not automatically be entitled to CRSC simply because they were awarded the Combat Action Badge.  

11.  The VA stated his condition of right shoulder degenerative joint disease was service-connected, but also that this was a peacetime incurred, static disability.  The VA awarded him a 10% disability rating.  However, this condition did not qualify for CRSC because it did not meet the criteria stated in Title 10, USC, section 1413a in that, while the VA did rate this condition as 10% disabling, this condition was incurred during peacetime, and not as a result of a specific incident that occurred on a specific date in time as a direct result of armed conflict, being engaged in a specific and especially hazardous military duty, being engaged in a training exercise that simulated war conditions, or by an instrument of war.  

	a.  However, a thorough review the documents he submitted to the ABCMR for this and his previous consideration shows the applicant ties this particular condition to the motor vehicle accident he was involved in during his deployment to Saudi Arabia.  

	b.  There are four pieces of evidence that are pertinent; the U.S. Army Mishap Report Information, the Emergency Care and Treatment Record, his SF 600, and the VA rating decision, dated 29 August 2013:

		(1)  The U.S. Army Mishap Report Information sheet shows he was involved in a motor vehicle accident during Desert Storm non-tactical training in an off-post training site at 1045 hours on 5 March 1991.

		(2)  The Emergency Care and Treatment Record and an SF 600 show he received medical treatment on 5 March 1991 after being involved in an automobile accident.  He complained of right hip pain and a headache.  The medical notes show he sustained a laceration to the middle finger of his left hand, abrasions and lacerations on the posterior side of his right elbow, abrasions to his right shoulder and right hip, and a large bruise on his right thigh.

		(3)  The VA decision rating stated this was a peace time incurred static disability.
	c.  The evidence shows he was treated for a simple shoulder abrasion, not for anything dealing with his shoulder joint.  Further, there is not even a record to show he complained of shoulder pain.  The incident report he provided indicates the accident occurred during non-tactical training, meaning the training was not simulating a war-like combat environment.  Additionally, the applicant and the record indicate he was involved in an automobile accident, but there is not a true indication of what type vehicle he was in (Ford truck, Humvee, etc.).  As such, it shows:

		(1)  The injury he is claiming, right shoulder degenerative joint disease, is vastly divergent from the injury for which he was treated on the day of the incident, a shoulder abrasion.  One involves damage to a joint, the other an abrasion of the soft tissue on his shoulder.

		(2)  However, despite the nature of his injury, he was in Saudi Arabia when the accident occurred.  Nevertheless, this condition did not qualify for CRSC because it did not meet the criteria stated in Title 10, USC, section 1413a in that he was not engaged in combat, an especially hazardous military duty, or a training exercise that simulated war conditions.  Additionally, the evidence of record only shows he was involved in a motor vehicle but does not specify what kind of vehicle.  As such, it cannot be determined that his injuries were caused by in instrument of war.  

12.  The applicant specifically presented three questions to the board.  First, in effect, if serving and sustaining injuries in a named combat zone and receiving the Combat Action Badge is considered insufficient documentation to prove entitlement to CRSC, what document was used prior to 2005?  Second, what documentation did other veterans who were awarded CRSC provide to prove entitlement to CRSC prior to 2005?  Third, is this personal and just like most other things in the military, based upon the premise that rank has its privileges?

	a.  First, serving and sustaining injuries in a named combat zone is not sufficient to justify award of CRSC.  The injuries must meet the criteria outlined in Title 10, USC, section 1413a.  This means that in order to qualify for award of CRSC the veteran must have been awarded a percentage of disability rating of 10% or greater from the VA for a specific condition, and it must also be proven that:

		(1)  The condition was incurred as a direct result of armed conflict.  More precisely, this means that it was documented that a Soldier was actively engaged in combat with an enemy on X day, and X month, in X year and the combat action and the injuries sustained were documented in unit and/or medical records, and these records specifically show/state the injuries the Soldier incurred were in fact incurred as a result of this combat.  For example:

			(a)  If a Soldier serving in combat receives a shrapnel wound to his leg as a result of an improvised explosive device or because he is shot in the leg by the enemy, this Soldier would receive medical treatment and be awarded the Purple Heart.  The award of the Purple Heart would be a clear indication that he was wounded in combat, because of the criteria necessary to support awarding the Purple Heart.  As such, if a Soldier has been awarded the Purple Heart and has been awarded a percentage of disability rating of 10% or greater from the VA, he or she would qualify for award of CRSC.  

			(b)  Likewise, if a Soldier actively engaging or being engaged by the enemy and experiencing a traumatic event during said engagement is later awarded the Combat Action Badge, and that Soldier is later diagnosed with PTSD as a result of the traumatic event they experienced that day and were awarded a percentage of disability rating of 10% or greater from the VA, he or she would qualify for award of CRSC.  However, this would be primarily due to the fact that the Soldier's engagement with the enemy would have been well documented as part of the criteria for award of the Combat Action Badge.  

		(2)  The condition was incurred as a direct result of being engaged in a specific and especially hazardous military duty [for example, while serving as a military diver, or repelling down the face of a cliff or mountain].  More precisely, this means that it was documented that a Soldier was engaged in a specific and especially hazardous duty military event on a specific date and was injured.  

		(3)  The condition was incurred as a direct result of being engaged in a training exercise that simulated war conditions, [for example, Airborne Soldiers conducting night jumps, with full combat gear, or combat cold weather training].  More precisely, this means that it was documented that a Soldier was engaged in a training exercise that simulated war conditions on a specific date and was injured.  

		(4)  The condition was incurred through an instrumentality of war.  An example of such an injury would be a Solder who had a foot crushed by the tracks of a tank, or having a limb cut off by the rotor blades of a helicopter on a specific date.  

	b.  Second, other veterans, those who were awarded CRSC, first had conditions that were rated by VA with a 10% or greater disability rating, and then provided medical or unit records that specifically show/state their injury or condition resulted from a specific incident that occurred on a specific date in time as a direct result of armed conflict, being engaged in a specific and especially hazardous military duty, being engaged in a training exercise that simulated war conditions, or by an instrument of war.  The types of records are varied, but they must be official documents and clearly meet the statutory criteria.  

	c.  Third, the Board makes decisions based upon the individual set of  circumstances, available evidence, and arguments presented.  Each case is considered on its own merits, and the applicable regulatory and/or statutory guidance without regard to personal factors such as rank, age, gender, race, color, creed, religion, or sexual orientation.

13.  Based on the foregoing, there is an insufficient basis for granting 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 AR20130020219, dated 31 July 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)                                         AR20140017427



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ABCMR Record of Proceedings (cont)                                         AR20140017427



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