RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-01420
		INDEX CODE:  136.00

	XXXXXXX	COUNSEL:  NONE

	XXXXXXX	HEARING DESIRED: NO

MANDATORY CASE COMPLETION DATE:  28 OCT 2005
___________________________________________________________________

APPLICANT REQUESTS THAT:

He be entitled to Combat‑Related Special Compensation (CRSC) benefits.

___________________________________________________________________

APPLICANT CONTENDS THAT:

The disapproval of his CRSC application is not based upon the facts submitted in the application.  It is unjust and unfair and is contrary to the law and facts of the case.  

His application was denied because he is not receiving compensation from the Department of Veterans Affairs (DVA).  He believes it is a fundamental error, as a matter of law, to base his denial on procedural matters as opposed to the applicable substantive law.

Also, his lack of 20 years of active service is an impossible criteria to meet since he was disabled in active service, prior to having 20 years of service, as a result of serving in a combat area.

In support of his appeal, applicant submitted a personal statement and a copy of his CRSC denial package, dated 10 Feb 04.

Applicant’s complete submission, with attachments, is at Exhibit A.

___________________________________________________________________

STATEMENT OF FACTS:

The applicant, a commissioned officer, entered on extended active duty (EAD) on 1 Oct 43.  He served as a pilot flying B-24 bombers in the European Theater during World War II.  A chest x-ray obtained during a routine physical examination in September 1944 disclosed changes in the left upper lobe consistent with tuberculosis.

Applicant was permanently retired for disability effective 17 Jun 1945, with a disability rating of 100%.  He completed 1 year, 8 months, and 18 days of active federal military service.

___________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPD recommends denial of applicant’s request stating, in part, although applicant’s service‑connected medical conditions exceed the required 10 percent rating, he does not meet the eligibility requirement of retirement with 20 or more years of active service.

The Combat-Related Special Compensation (CRSC) program, established by Public Law (PL) 107-314, provides compensation to certain retirees with combat-related disabilities.  A retired member of the Uniformed Services must meet each of the four following conditions to meet the preliminary CRSC criteria:

	a.  Has 20 or more years of active service in the Uniformed Services for the purpose of computing the amount of retired pay, or is entitled to retired pay under section 12731 of Title 10, United States Code, unless such retirement is under section 12731b of that same title.

	b.  Is in retired status.

	c.  Is entitled to retired pay, notwithstanding that such retired pay may be reduced due to receipt of Department of Veterans Affairs (DVA) disability compensation.

	d.  Has qualifying disability ratings (percentages) [retiree must be entitled to compensation for service-connected disabilities under 10 USC 38 by the DVA].

		Qualifying Combat-Related Disability:  Member has combat-related disabilities (which includes any Purple Heart disabilities) that are compensated by the DVA.

The complete evaluation is at Exhibit C.

The BCMR Medical Consultant reviewed this application and is of the opinion that no change in the records is warranted.  The applicant was retired for disability due to pulmonary tuberculosis (under the provisions of the Act of 3 April 1939) on 17 Jun 45, with entitlement to retirement pay.

On 8 May 45, an Army Retiring Board found him incapacitated for active service due to tuberculosis, pulmonary, chronic, active, reinfection type, upper lobe, left lung, minimal, rated 100%.  The Board determined his disability was not incurred in combat nor was it due to an instrumentality of war.

Applicant did not serve for 20 years.  He argues that the 100% disability rating assigned by the Army Retirement Board at the time of his retirement from the Army in 1945 should be equated to a 20‑year length of service retirement and qualifies him for consideration in the program.  The fact that he was disability retired with a 100% rating does not qualify him for compensation under the CRSC program.  

The intent of the CRSC program is to offset the deduction from length of service retired pay for service-connected disability pay received for the DVA under Title 38 for disabilities considered combat-related.  The applicant does not qualify for compensation under the CRSC program because he did not serve 20 years on active duty, he has not received service-connected disability payments from the DVA under Title 38 and no deductions from this disability retired pay have been made for such payments and lastly, his tuberculosis is not directly due to combat, hazardous service or other qualifying circumstances.  Action and disposition in this case are proper and equitable reflecting compliance with Air Force directives that implement the law. 

A complete copy of the evaluation is at Exhibit F.

___________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant reiterated his original contentions and explained his disagreement with the advisory opinions.

Applicant’s complete responses, with attachments, are at Exhibits D and H.

___________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was timely filed.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinions and recommendations of the Air Force offices of primary responsibility and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.
___________________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application.
___________________________________________________________________

The following members of the Board considered AFBCMR Docket Number BC-2004-01420 in Executive Session on 23 June 2005, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 26 Apr 04, w/atchs. 
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, HQ AFPC/DPPD, dated 9 Jul 04.
    Exhibit D.  Letter, SAF/MRBR, dated 16 Jul 04.
    Exhibit E.  Letter, Applicant, dated 30 Jul 04, w/atchs.
    Exhibit F.  Letter, AFBCMR Medical Consultant, dated 28 Feb 05.
    Exhibit G.  Letter, AFBCMR, dated 10 Mar 05.
    Exhibit H.  Letter, Applicant, dated 4 Apr 05, w/atchs.