IN THE CASE OF:  	  

		BOARD DATE:  21 May 2015	  

		DOCKET NUMBER:  AR20140017438 


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 daughter of a deceased retired former service member (FSM), requests entitlement to Combat Related Special Compensation (CRSC) on behalf of her deceased father.

2.  The applicant states her father was a Vietnam veteran and he was exposed to Agent Orange.  He died from a service-connected disability related to Agent Orange.  The Department of Veterans Affairs (VA) stated they do not owe his estate any entitlements.  She believes the VA (i.e. U.S. Army Human Resources Command's (HRC's)) letter, dated 15 September 2014, is in error since her father was retired and the VA went back several years and determined his condition was combat related.  She wants the Army Board for Correction of Military Records to grant CRSC to the estates of deceased veterans.

3.  The applicant provides a VA Rating Decision and two letters.

CONSIDERATION OF EVIDENCE:

1.  Having had prior active service, the FSM enlisted in the Regular Army on 22 August 1955 and he held military occupational specialty (MOS) 94B (Cook).  He served through multiple reenlistments and/or extensions and was promoted to the rank/grade of staff sergeant (SSG)/E-6 on 14 August 1968.

2.  He served in Vietnam in MOS 94B from 3 October 1967 to 4 May 1968 and from 6 January to 6 April 1969.  

3.  He was honorably retired from active duty on 31 March 1972 in the rank of SSG and he was transferred to the Retired List on 1 April 1972.  He completed a total of 22 years, 7 months, and 15 days of creditable active service.  

4.  The FSM died on 25 November 2006 at the age of 75.  The death certificate shows the cause of death as congestive heart failure

5.  The applicant provides a VA Rating Decision, dated 4 August 2014, wherein it stated VA records indicated the FSM had been granted service-connected disability for ischemic heart disease effective 27 October 2005.  Based on a special review, the VA made the following decision and the FSM was granted service-connected disability rated at 10 percent (%) for arteriosclerotic heart disease effective 3 October 2000 and at 100% effective 27 October 2005.

6.  The applicant provides a letter that she received from the VA, dated 6 August 2014, wherein it stated a special review was conducted on her father's previous VA claim mandated the U. S. District Court's orders in Nehmer versus the VA determined she was entitled to retroactive compensation based on being a recognized class member as outlined in the court order.  

	a.  This letter showed a list of the amounts of the new payment, the previous payment, the amount withheld, the new payment amount, the new payment start date, and the reason for the withholding.  The list showed no new payment was due as it would represent a double payment and stated [the FSM] was not allowed to receive full military retired pay and full VA compensation at the same time. 

	b.  The VA letter also stated "You may be eligible for full or partial concurrent receipt of VA compensation and military retired pay under the CRSC and/or Concurrent Retired and Disability Pay (CRDP) programs.  Your retired pay center (RPC) had bee notified of the award of VA compensation.  If your RPC determines the withholdings from your VA compensation should be retroactively adjusted due to CRSC/CRDP eligibility, VA will be notified and will adjust your VA compensation accordingly."

7.  On 15 August 2014, the applicant filed a claim for CRSC on behalf of her deceased father for his ischemic heart condition based on exposure to Agent Orange in Vietnam.  In her claim, she stated the VA did not owe any retroactive pay since her father had retired and she was his dependent child she was requesting the CRSC entitlement.  

8.  The applicant provides and the FSM's record contains a letter to the estate of the deceased FSM, dated 15 September 2014, from HRC, wherein the claim for CRSC was denied.  The HRC official stated they were unable to approve the claim as CRSC was not subject to any of the survivor benefit provisions of chapter 73,Title 10, U.S. Code (USC), section 636, Public Law 107-314, and section 1413a, Title 10, USC.

9.  Section 636 of the National Defense Authorization Act (NDAA) for Fiscal Year 2003, (enacted by Public Law 107-314, December 2, 2002) provided a new special compensation for certain combat related disabled Uniformed Services retirees.  

	a.  CRSC, as established by section 1413a, Title 10, USC, 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.  Eligible members are those retirees who have 20 years of service for retired pay 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. 

	b.  The law specified the payments were not retired pay.  Payment is made by the Military Department, not the VA, and is tax-free.  Since CRSC is not retired pay, it is not subject to the provisions of section 1408, Title 10, USC, relating to payment of retired or retainer pay in compliance with court orders.  CRSC is also not subject to any survivor benefit provisions of chapter 73, Title 10, USC.  CRSC is subject to a Treasury offset to recover a debt owed to the United States as well as to garnishment for child support or alimony.  

DISCUSSION AND CONCLUSIONS:

1.  CRSC is specifically for those military retirees who have combat-related disabilities.  Incurring disabilities or aggravating medical conditions 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.

2.  Although the VA determined the FSM's ischemic heart disease was service-connected, it does not mean it automatically qualified the FSM for CRSC.  It is not known if the FSM was diagnosed with heart disease while serving on active duty.  It is unclear if the FSM would have been granted CRSC as he never submitted a claim and was not receiving CRSC at the time of his death in 2006.  However, in order to be granted CRSC, he would have had to submit evidence that conclusively showed his heart disease was incurred by a specific event while engaged in combat or was combat-related.  Without evidence to establish a direct causal relationship to the FSM's VA rated disability of ischemic heart disease to war or the simulation of war, there would have been insufficient evidence to support any such claim.

3.  Regardless, CRSC payments made to a qualifying FSM is not considered retired pay and is not made by the VA.  The law authorizing CRSC as enacted by Congress does not contain any provisions for surviving family members of deceased FSM's to submit claims for retroactive entitlement to CRSC and, by law, CRSC payments are not subject for payment to surviving family members. Making changes to any law is beyond the purview of this Board.  

4.  In view of the foregoing, there is no basis to grant 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)                                         AR20140017438



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ABCMR Record of Proceedings (cont)                                         AR20140017438



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