DEPARTMENT OF THE
   NAVY
                    BOARD FOR CORRECTION OF NAVAL RECORDS


                                2 NAVY ANNEX
                          WASHINGTON DC 20370-5100


                                                        JRE
                                                         Docket No. 02675-05
                                                         17 October 2005














      This is in reference to your application for correction of your naval
      record pursuant to the provisions of title 10 of the United States
      Code, section 1552.

      A three-member panel of the Board for Correction of Naval Records,
      sitting in executive session, considered your application on 6 October
      2005. Your allegations of error and injustice were reviewed in
      accordance with administrative regulations and procedures applicable
      to the proceedings of this Board. Documentary material considered by
      the Board consisted of your application, together with all material
      submitted in support thereof, your naval record and applicable
      statutes, regulations and policies.

      After careful and conscientious consideration of the entire record,
      the Board found that the evidence submitted was insufficient to
      establish the existence of probable material error or injustice. In
      this connection, the Board substantially concurred with the findings
      of the Secretary of the Navy Council of Review Boards, Combat-Related
      Special Compensation Branch, dated 15 March 2005, a copy of which is
      attached. The Board was not persuaded that your disabilities rated
      under Department of Veterans Affairs codes 5010, 5299, 5293 and 9422,
      were caused by armed conflict, an instrumentality of war, or your
      performance of duties under conditions simulating war. Accordingly,
      your application has been denied. The names and votes of the members
      of the panel will be furnished upon request.
It is regretted that the circumstances of your case are such that favorable
action cannot be taken. You are entitled to have the Board reconsider its
decision upon submission of new and material evidence or other matter not
previously considered by the Board. In this regard, it is important to keep
in mind that a presumption of regularity attaches to all official records.
Consequently, when applying for a correction of an official naval record,
the burden is on the applicant to demonstrate the existence of probable
material error or injustice.

                                       Sincerely,





Enclosure
                           DEPARTI~NT OF THE NAVY
               SECRETARY OF THE NAVY COUNCIL OF REVIEW BOARDS
                 COMBAT-RELATED SPECIAL COMPENSATION BRANCH
                          201 12TH STREET SUITE 703
                          ARLINGTON, VA 22202-4357
                                                                   iN REPLY
                                                                   REFER 10

                                                                    1850/I
                                                                    CRSC
                                                                    15 Mar
                                                                    2005












    Subj:   APPROVAL OF CRSC UPON RECONSIDERATION IN THE CASE OF~E~
          qflUIIgIpUUIqqU~MUJP~4~ USN DOCKET NUMBER NCO4—00680

    Ref:    (a) 10 U.S. Code 1413a

    End:    (1) DD Form 149 Application for Correction of Military Record

1.    Your application for has been reconsidered in information you
provided approved, and is amended,
Combat-Related Special Compensation (CRSC) light of the additional,
clarifying, or new with your request. Your application remains as indicated
below.

        COMBAT RELATED:
            •~‘ ~ <~j ~(ASRD VASRD VA% % ~   DETERMINAT!QN
      Dry eye syndrome 6099  6025 20 Combat-related; Instrumentality of War
Gulf
                                  War Service
      Memory loss fatigue and     sleep 8894 9440  10    Combat-related;
Instrumentality of War Gulf
      disturbance      -                -    War Service
      Nausea           8873  7305 10    Combat-related; Instrumentality of
War Gulf
                                  War Service

        NON-COMBAT RELATED:
        a.  The fact that the VA established your diagnoses as service
    connected means they were incurred during your military career; not that
    they are combat-related. VA is not chartered nor authorized to make
    combat-related determinations. Your application package does not
    establish that specific combat-related events caused your diagnoses 5293
    and 9422.
Subj: APPROVAL OF CRSC UPON RECONSIDERATION IN THE CASE OF



    b.     Instrumentality of War Combat-related determinations require a
direct causal relationship between the instrumentality and the disability.
Falling off, slipping, on, running into, tripping over, or attempting to
lift an instrumentality of war does not meet CRSC program criteria. Your
application package does not establish that your diagnosis 5293 resulted
from the operation or mishap of an instrumentality of war.

    c.     Degenerative disc disease is normally caused by age, sports-
related repetitive activities such as golf, soccer, tennis, etc.,
occupational repetitive motions such as lifting or assembly line work,
trauma, disease, or congenital abnormalities. Your application package does
not establish that specific combat-related events caused your diagnosis
5293.

    d.     Depression/Dysthymic disorder is normally caused by genetic
predisposition, low self esteem, maladaptive coping mechanisms, serious
loss, chronic illness, relationship problems, etc. Your application package
does not establish that specific combat-related events caused your
diagnosis 9422.

    e.     In response to your concern regarding page 8 of reference (a),
“VA ratings are the sole discretion of the VA and not subject to challenge
through the CRSC program.” This refers to the diagnosis, VASRD Code,
percentage assigned, and service connection status. The CRSC branch does
not dispute that you are service connected for codes 5293, 9422, 5299-5203,
and 5010-5201 as noted in the Non-CR table. However, as noted in previous
correspondence and reiterated in this document, those diagnoses have not
been found to be combat-related.

2.    The following information is being provided to the Defense Finance
and Accounting Service (DFAS) for their internal processing of your CRSC.
No further action is required on your part to effect payment.

The effective date of this CRSC is 1 January 2004.
Total Purple Heart Disability: NONE
Total Combat-Related Disability: 40%

Records reviewed by the CRSC Branch indicate that the applicant:
    IS NOT receiving Combat Related Special Monthly Compensation (SMC); IS
    NOT receiving Individual Unemployability (IU).

3.    DFAS will effect CRSC payment within 60 days of receipt of this
letter. Please be aware that, since DFAS bases CRSC payments on VA
disability ratings only, you will not receive CRSC unless you previously
elected to waive part of your retirement pay in favor of VA disability
compensation. CRSC payments will be made in the same manner as your retired
pay (i.e., EFT or check). The CRSC Branch does not effect or compute CRSC
payments. Pay inquiries should be addressed to the DFAS Retired and Annuity
Pay Contact Center at 1-800-321-1080 or write:

        DFAS Cleveland
        Anthony J. Celebrezze Federal Building
        1240 9th Street
        Cleveland, OH 44199-2055
Subj: APPROVAL OF CRSC UPON RECONSIDERATION IN ThE CASE OF



4.    If you have multiple disability ratings then the VA Combined Ratings
Table, as set forth in Title 38 of the Code of Federal Regulations (CFR),
Chapter I, Part 4, Section 4.25, is used to calculate your combined combat-
related disability rating. The Combined Ratings Table can be obtained from
the VA or from the Veterans Benefits Administration (VBA) Web Automated
Reference Materials System (WARMS) at the following website:
  http://www.warms.vba.va.gov/regs/38cfr/bookc/part4/s4%5F25.doc

5.    Appeal to the Board for Correction of Naval Records (BCNR). Under 10
U.S.C. § 1552 the Secretary of the Navy (SECNAV) has designated BCNR to
review CRSC decisions. If you wish to appeal your CRSC decision then you
must submit a request (petition) to BCNR. The BCNR website,
http://www.hq.navy.mil/bcnr/bcnr.htm, offers an overview of the application
procedure, an application form (DD Form 149), and assistance in filling out
the application. You may use the enclosed DD Form 149 or download a copy
from the website and submit it to the following address:

        Board for Correction of Naval Records
        Department of the Navy
        2 Navy Annex
        Washington, DC 20370-5100

A copy of the form may also be requested from BCNR at 703-614-1402 between
7:30am and 4:00pm Eastern Time, Monday through Friday.

6.    For more information, including answers to frequently asked
questions, please visit the CRSC Branch website at:
  http: //www.hq.navy.mil/ncpb

7.    Thank you again for your service to our nation.






Copy to:
DFAS