BOARD DATE:	  29 September 2015

		DOCKET NUMBER:  AR20150003688 


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, reversal of the U.S. Army Human Resources Command (HRC) decision denying him combat-related special compensation (CRSC) for his knees and shoulder. 

2.  The applicant states his DD Form 214 (Certificate of Release or Discharge from Active Duty) does not indicate combat simulation training.  As a combat signaler (31K), he performed training that included combat simulation during Operations Desert Shield/Storm.  Although this was indicated on his original [Department of Veterans Affairs (VA)] rating decision and although his DD Form 214 indicates he completed the Combat Lifesaver Course, HRC indicates that he did not participate in combat simulations and his injuries are not combat-related. 

3.  The applicant provides his DD Form 214 and VA rating decision. 

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army on 17 July 1979 and he held military occupational specialties 31U (Signal Support Systems Specialist), 36K (Senior Field Switchboard Operator), 31K (Combat Signaler), and 31G (Tactical Communications Channel Operator). 

2.  He served through multiple reenlistments or extensions in a variety of stateside or overseas assignments and he attained the rank of staff sergeant (SSG)/E-6.  He also completed multiple training courses, including the Combat Lifesaver Course. 
3.  He retired on 31 July 1999 and he was placed on the retired list in his retired rank/grade of SSG/E-6 on 1 August 1999.  His DD Form 214 shows he completed over 20 years of active service. 

4.  In December 2007, he submitted his first CRSC application.  He claimed: 

* chronic pain, swelling, and stiffness in his shoulder; the condition is directly related to the performance of his duties while in physical training
* chronic pain, swelling and stiffness in his right knee; it is difficult to do daily activities with family and friends and when the weather changes, he has flare ups which limit his range of motion and cause chronic pain
* chronic pain, swelling and stiffness in his left knee; it is difficult to do daily activities with family and friends and when the weather changes, he has flare ups which limit his range of motion and cause chronic pain

5.  On 12 February 2008, by letter, the CRSC Branch at HRC informed him that there was no evidence in his claim to show that a combat-related event caused his conditions.  He was asked to provide evidence on how these conditions occurred, such as a line of duty investigation, medical documentation, and/or VA rating decision: 

* VASRD Code 5009, Arthritis, left knee, No evidence in his claim to show that a combat-related event caused this condition
* VASRD Code 5099, Bone Condition, right knee, No evidence in his claim to show that a combat-related event caused this condition
* VASRD Code 5201, Limited motion of arm, right shoulder, No evidence in his claim to show that a combat-related event caused this condition

6.  On 10 January 2012, following his request for reconsideration, the Army reconsidered his claim for CRSC and denied his request.  The letter informed him that the documentation he provided did not show a relationship between an injury and a combat event.  The CRSC Office at HRC was unable to verify as combat-related disabilities: 

* VASRD Code 5019, Chondromalacia Patella, Right Knee, previously requested, no new evidence provided to show combat-related event caused condition
* VASRD Code 5019, Chondromalacia Patella, Left Knee, previously requested, no new evidence provided to show combat-related event caused condition
* VASRD Code 5201, Impingement Syndrome, Right Shoulder, previously requested, no new evidence provided to show combat-related event caused condition
7.  On 5 April 2012, the Army reconsidered his claim for CRSC and denied his claim.  By letter, HRC informed him that the CRSC Office was unable to overturn the previous adjudication.  The documentation he submitted did not show any new evidence to link his requested condition to a combat-related event.  This disapproval is now final.  The CRSC Office at HRC was unable to verify as combat-related disabilities: 

* VASRD Code 5019, Chondromalacia Patella, Right Knee, previously requested, no new evidence provided to show combat-related event caused condition
* VASRD Code 5019, Chondromalacia Patella, Left Knee, previously requested, no new evidence provided to show combat-related event caused condition
* VASRD Code 5201, Impingement Syndrome, Right Shoulder, previously requested, no new evidence provided to show combat-related event caused condition

8.  On 29 May 2012, HRC informed the applicant that they received his application for reconsideration.  However, their records indicated he had already received a final CRSC determination letter, dated 5 April 2012.  That decision was final and CRSC could not process any reconsideration requests. 

9.  On 6 October 2014, HRC again informed the applicant that they received his application for reconsideration.  However, their records indicated he had already received a final CRSC determination letter, dated 5 April 2012.  That decision was final and CRSC could not process any reconsideration requests.

10.  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 weren'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. 


11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the physical disability system.  The regulation in effect at the time stated:

	a.  Armed conflict and instrumentality of war.  A member whose retirement or separation from the service is based on disability resulting from injury or disease received in line of duty as a direct result of armed conflict, or caused by an instrumentality of war and incurred in line of duty during a period of war will have the block "is" checked in item 10 of the DA Form 199 (Physical Evaluation Board Proceedings). 

		(1)  Armed conflicts.  A disability may be considered a direct result of armed conflict (Appendix A) if (a) It was incurred while the member was engaged in armed conflict or an operation or incident involving armed conflict or the likelihood of armed conflict, or while interned as a prisoner-of-war or detained against his will in the custody of a hostile or belligerent force or while escaping or attempting to escape from such prisoner-of war or detained status, and (b) A direct causal relationship exists between the armed conflict or the incident or operation and the disability.  A determination that a disability resulted from injury or disease received in line of duty as a direct result of armed conflict will be appropriate only when it is also determined that the disability so incurred in itself renders the member physically unfit.

		(2)  Instrumentality of war.  A determination that a disability was caused by an instrumentality of war (Appendix A) and incurred in line of duty will be appropriate only when it is also determined that the disability so incurred in itself renders the member physically unfit and was incurred during one of the periods of war as defined by law, i.e., (World War II, 7 December 1941 to 31 December 1946); any period of continuous service performed after 31 December 1946 and before 26 July 1974, if such period began before 1 January 1947; Korean War (27 June 1950 to 31 January 1955); and Vietnam Era (5 August 1964, and ending on such date as shall thereafter be determined by Presidential proclamation or concurrent resolution of the Congress.

	b.  Appendix A makes further definitions as follows: 

		(1)  Instrumentality of war.  A device primarily designed for military service and intended for use in such service at the time of the occurrence of the injury or a device not designed primarily for military service, but the use of or occurrence involving such device subjects the individual to a hazard peculiar to military service as distinguished from such use or occurrence under similar circumstances in civilian pursuits. 

		(2)  Armed conflict.  An armed conflict may include a war, expedition, occupation, battle, skirmish, raid, invasion, rebellion, insurrection, guerrilla action or insurgency, etc., in which American military personnel are engaged with a hostile or belligerent nation, faction or force.

12.  Title 26 U.S. Code, section 104, states for purposes of this subsection, the term "combat-related injury" means personal injury or sickness which is incurred as a direct result of armed conflict, while engaged in extra hazardous service, or under conditions simulating war; or which is caused by an instrumentality of war.

DISCUSSION AND CONCLUSIONS:

1.  CRSC is a form of concurrent receipt which is paid monthly.  It restores military retired pay that is offset when a military retiree accepts compensation from the VA for a disability or condition that can be attributed to a combat-related event as defined by the Department of Defense program guidance.  This allows eligible retirees to concurrently receive an amount equal to or less than their length of service retirement pay and their VA disability compensation, if the injury is combat-related.

2.  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, while performing duties simulating combat conditions, or while performing especially hazardous duties such as parachuting or scuba diving.

3.  The available evidence shows the applicant has submitted multiple applications claiming CRSC for three conditions that may be subject to compensation.  None qualified for CRSC because there was no evidence to link his claimed conditions to a combat-related event.  He submitted evidence showing these conditions are service-related.  However, he has not submitted any evidence that shows these conditions are combat-related.  Nowhere in his available records is there confirmation that they were incurred during combat or under conditions simulating war.  

4.  Without evidence to establish a direct, causal relationship between his VA-rated disabilities and war or the simulation of war, there is an insufficient evidentiary basis for granting 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)                                         AR20150003688





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ABCMR Record of Proceedings (cont)                                         AR20150003688



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