IN THE CASE OF:	  

		BOARD DATE:	  27 August 2015

		DOCKET NUMBER:  AR20140019509 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests payment of Combat-Related Special Compensation (CRSC) for the period 30 September 1971 to 6 November 2000 to the widow of a deceased former service member (FSM).

2.  Counsel states:

	a.  The FSM's surviving spouse/estate are entitled to receive CRSC for the period during his life that he qualified.

	b.  The FSM's widow completed an application for CRSC on behalf of the FSM in November 2012 and her claim was denied.  The stated reason for denial was that she was not retired and thus she was not eligible for CRSC.  However, the sender misinterpreted the application.  The applicant was not applying for herself, but for her deceased husband.

	c.  Subsequently, she filed a request for reconsideration and her request was denied.  The stated reason for denial was that CRSC is not subject to any of the survivor benefit provisions.  In order to be eligible to receive CRSC, an applicant must establish that he or she is receiving military retired pay; he or she is receiving compensation for a 10-percent or greater Department of Veterans Affairs (VA) rated injury; his or her military retired pay must be reduced by his or her VA disability payments; and he or she must have at least 20 years of service for retired pay computation.  The FSM met all of these criteria and thus was eligible to receive CRSC.  The documentation the applicant provided was more than sufficient to establish the FSM's eligibility to receive CRSC.  Therefore, the applicant respectfully appeals the denial of her husband's application to receive CRSC benefits.

	d.  The applicant acknowledges the law regarding CRSC did not exist prior to the FSM's passing.  She further acknowledges the law regarding CRSC is not subject to any survivor benefits.  However, the stated purpose of the law supports compensating the veteran and/or his or her estate for the specific period of time during which he or she would have qualified had he or she applied.  This is especially the case given that veterans who are otherwise qualified to receive CRSC benefits will receive said benefits retroactively for any month after May 2003 for which all conditions of eligibility were met.

	e.  To be clear, the applicant is not asking to be paid compensation for the remainder of her life based upon the FSM's qualifications for CRSC.  Instead, she asserts that she and/or her late husband's estate are entitled to compensation for the time period during the FSM's life that he would have been qualified to receive CRSC benefits.

	f.  The FSM enlisted in the Army in 1947 and he served in Vietnam from 1966 to 1967.  During this time, he was exposed to Agent Orange.  He retired in September 1971.  Later, he received military retired pay.  He also received compensation for a 10-percent or greater combat-related injury.  His military retired pay was reduced by his disability compensation payments.  Additionally, he had more than 20 years of service for retired pay computation.  Finally, the FSM passed away on 6 November 2000.  Thus, the specified time period during which the FSM would have been qualified to receive CRSC benefits had they existed is from 30 September 1971 to 6 November 2000.

	g.  These facts support the applicant's assertions that her late husband was eligible to receive CRSC.  Moreover, the documentation she provided with her application was sufficient to establish the FSM's eligibility to receive CRSC.

3.  Counsel provides:

* FSM's death certificate
* FSM's military identification card
* applicant's CRSC application, dated 7 November 2012
* CRSC denial letter, dated 3 December 2012
* applicant's request for reconsideration, dated 3 December 2013
* CRSC denial letter, dated 18 December 2013
* FSM's service personnel records 
 
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 September 1971, the FSM retired in the rank of sergeant first class.

3.  The FSM's death certificate shows he died on 6 November 2000 of coronary artery disease.

4.  In November 2012, the applicant submitted an application for CRSC.  Her request was denied in December 2012.

5.  Counsel submitted a request for reconsideration in December 2013.  On 18 December 2013, the U.S. Army Human Resources Command (HRC) CRSC Branch disapproved the request for reconsideration for CRSC.  The letter stated:

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

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

6.  CRSC, enacted by Congress on 2 December 2002, as established by Title 10, U.S. Code, section 1413a, as amended, states 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, specially 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.  CRSC benefits are equal to the amount of VA disability compensation offset from retired pay based on those disabilities determined to be combat-related.  Retroactive payment may be made as far back as 1 June 2003, but can be limited based on:

* overall CRSC starting date as awarded by the retiree's branch of service
* Purple Heart eligibility
* retirement date
* retirement law (disability or non-disability)
* 6-year barring statute

DISCUSSION AND CONCLUSIONS:

1.  Counsel requests retroactive CRSC associated with the FSM's retired pay for the period 30 September 1971 to 6 November 2000.

2.  The HRC CRSC Branch disapproved the applicant's request for CRSC because that office cannot process requests for CRSC that were submitted subsequent to the date of the veteran's death.

3.  The FSM died on 6 November 2000 prior to enactment of CRSC.  As a result, he was not drawing retired pay on or after 1 June 2003 as required by law and he did not meet the eligibility for CRSC.

4.  Regrettably, there is no basis on which grant the applicant's requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _________________________
                  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)                                         AR20140019509



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140019509



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1