IN THE CASE OF:	  MAGEE, TERRANCE E.

		BOARD DATE:	  14 January 2015

		DOCKET NUMBER:  AR20140007503 


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, in effect, correction of his record to show he is eligible for Combat-Related Special Compensation (CRSC).  

2.  The applicant states he had a veterans' representative doing his application for CRSC, each time getting denied for lack of evidence, not realizing the veteran's representative was only sending the disability codes from the Department of Veterans Affairs (VA) each time.  He states he then called the CRSC Branch and he was informed to send in evidence himself.  He was then told he already had three denials; therefore, he had to appeal to the Army Board for Correction of Military Records.  His VA rating is 100 percent.  He has 14 years of service and he receives no retirement pay.

3.  The applicant provides:

* two VA Rating Decisions
* a request for reconsideration of the CRSC claim he submitted to the CRSC Branch
* CRSC application and related documents
* correspondence from the CRSC Branch, U.S. Army Human Resources Command, Fort Knox, KY
* documents related to his Physical Evaluation Board (PEB) processing
* three DD Forms 214 (Certificate of Release or Discharge from Active Duty)
* memorandum, subject:  Burn Pit Health Hazards
* documents from his service medical record
CONSIDERATION OF EVIDENCE:

1.  With prior service, on 5 November 2007, the applicant enlisted in the Regular Army. 

2.  His record includes a DD Form 214 showing he was retired from active duty on 27 June 2012 due to permanent disability (enhanced) with service in Iraq from 4 December 2008 to 7 November 2009.  He served in military occupational specialty 92Y (Unit Supply Specialist) during this period of service.

3.  He provides a physician discharge summary, dated 12 January 2011, related to a diagnosis of pulmonary embolism.

4.  On 23 April 2012, a PEB convened to consider his condition.  The PEB found he was unfit based on MEB diagnoses 4 (major depressive disorder) and 1 (asthma).  MEB diagnosis 3 (recurrent pulmonary embolism) was found unfitting and assigned a 0% disability percentage.  Diagnoses 2 and 5 through 15 were found to have met retention standards.  The PEB recommended permanent disability retirement with a combined disability rating of 50%.

5.  He concurred with the PEB findings and waived his right to a formal hearing.

6.  On 16 May 2012, the PEB findings and recommendations were approved for the Secretary of the Army.  

7.  On 27 June 2012, he was retired from active duty by reason of disability, permanent (enhanced).

8.  In support of his application to the CRSC Branch, he provided a VA Rating Decision, dated 23 July 2012, showing he was granted the following service-connected disability ratings effective 28 June 2012:

* obstructive sleep apnea – 50%
* asthma – 30%
* major depressive disorder – 30%
* dermatitis – 30%
* diabetes mellitus, type II with erectile disorder – 20%
* degenerative bipartite right patella, right knee (claimed as osteoarthritis, right knee) – 10%
* right wrist sprain – 10%
* thoracolumbar strain (claimed as degenerative changes, thoracolumbar spine) – 10%
* left knee sprain (claimed as osteoarthritis, left knee) – 10%
* hypertension – 0%
* pulmonary embolism with deep vein thrombosis, bilateral legs – 0%

9.  The rating decision provided reasons for granting service connection for the above conditions. 

	a.  With respect to the medical condition of major depressive disorder it was noted that a review of his MEB proceedings showed the applicant reported onset of depression in approximately 2006 after incurring pulmonary embolism and discovering that his wife had begun living with another man.  He had reported that he was not involved in combat.  He reported seeing wounded American Soldiers but did not witness anyone die and did not witness any dead bodies.    

	b.  Regarding the other diagnoses, the Rating Decision made no mention of a combat-related event.

10.  On 26 March 2013, the CRSC Branch informed him they were unable to overturn previous adjudications of his CRSC claim.  The documentation which he had submitted still showed no new evidence to link his requested conditions to a combat-related event.  He was informed that this disapproval was final and he could appeal to this Board.  The letter informing him of the decision includes a summary of his final decision under CRSC.  He was given final disapproval on the seven conditions listed below because no new documentation was provided to show a combat-related event caused the conditions:

* diabetes mellitus, type II with erectile disorder
* dermatitis of the face, neck, arms, and legs with dermatophytosis and onychomycosis, bilateral foot
* degenerative bipartite right patella, right knee
* left knee sprain
* right wrist sprain
* thoracolumbar strain
* major depressive disorder

11.  The applicant provides a VA letter, dated 22 August 2013, stating he was entitled to receive service-connected compensation at the 100 percent rate effective 28 June 2012.

12.  On 18 February 2014, the CRSC Branch informed him they had received his application for reconsideration.  However, he had already received a final CRSC determination and CRSC could not process his request.

13.  Title 10, U.S. Code, Section 1413a provides the statutory authority for CRSC.

	a.  It states the Secretary of Defense shall prescribe procedures and criteria under which a disabled uniformed services retiree may apply to the Secretary of a military department to be considered to be an eligible combat-related disabled uniformed services retiree.

	b.  It defines combat-related disability as 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 criteria prescribed by the Secretary of Defense):

		(1)  as a direct result of armed conflict;

		(2)  while engaged in hazardous service;

		(3)  in the performance of duty under conditions simulating war; or

		(4)  through an instrumentality of war.

14.  DOD guidance on CRSC states a combat-related disability is a disability with an assigned medical diagnosis code from the VA Schedule for Rating Disabilities that was incurred:

	a.  as a direct result of armed conflict;

	b.  while engaged in hazardous service;

	c.  in the performance of duty under conditions simulating war; or

	d.  through an instrumentality of war.

15.  The DOD guidance states the burden of proof that a disability is combat-related rests with the applicant and members will be required to provide copies of documents in their possession to the best of their ability.  The Military Departments will determine whether a disability is combat-related under a, b, c, or d, above, using the definitions and criteria set forth in Attachment 1-1.  

16.  Attachment 1-1 states the following criteria, terms, definitions, and explanations will apply to making combat-related determinations in the CRSC program. 

	a.  Direct Result of Armed Conflict - The disability is a disease or injury incurred in the line of duty as a direct result of armed conflict.  The fact that a member incurred the disability during a period of war or in an area of armed conflict or while participating in combat operations is not sufficient to support a combat-related determination.  There must be a definite causal relationship between the armed conflict and the resulting disability. 

		(1)  Armed conflict includes a war, expedition, occupation of an area or territory, battle, skirmish, raid, invasion, rebellion, insurrection, guerilla action, riot, or any other action in which Service members are engaged with a hostile or belligerent nation, faction, force, or terrorists. 

		(2)  Armed conflict may also include such situations as incidents involving a member while interned as a prisoner of war or while detained against his or her will in custody of a hostile or belligerent force or while escaping or attempting to escape from such confinement, prisoner of war, or detained status. 

	b.  While Engaged in Hazardous Service - Such service includes, but is not limited to, aerial flight, parachute duty, demolition duty, experimental stress duty, and diving duty.  A finding that a disability is the result of such hazardous service requires that the injury or disease be the direct result of actions taken in the performance of such service.  Travel to and from such service, or actions incidental to a normal duty status not considered hazardous are not included.

	c.  In the Performance of Duty Under Conditions Simulating War - In general this covers disabilities resulting from military training, such as war games, practice alerts, tactical exercises, airborne operations, leadership reaction courses, grenade and live fire weapons practice, bayonet training, hand-to-hand combat training, rappelling, and negotiation of combat confidence and obstacle courses.  It does not include physical training activities such as calisthenics and jogging or formation running and supervised sport activities. 

	d.  Instrumentality of War - Incurrence during an actual period of war is not required.  However, there must be a direct causal relationship between the instrumentality of war and the disability.  The disability must be incurred incident to a hazard or risk of the service.







DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not show nor has the applicant provided evidence showing an error in the CRSC Branch's decision to deny his CRSC claim.  

2.  The fact that a member incurred a disability during a period of war or in an area of armed conflict or while participating in combat operations is not sufficient to support a combat-related determination for the purpose of awarding CRSC.  There must be a definite causal relationship between the armed conflict and the resulting disability.  Documentary evidence is required.

3.  Neither his service records nor the records he provides contain documentary evidence showing a definite causal relationship between armed conflict and any of his VA-rated disabilities.  Without such evidence, there is no basis for awarding him CRSC.  

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)                                         AR20140007503



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ABCMR Record of Proceedings (cont)                                         AR20140007503



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