RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 28 June 2005 DOCKET NUMBER: AR20050001053 I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. Mr. Carl W. S. Chun Director Mr. Edmund P. Mercanti Analyst The following members, a quorum, were present: Mr. Joe R. Schroeder Chairperson Mr. Lawrence Foster Member Ms. Jeanette R. McCants Member The Board considered the following evidence: Exhibit A - Application for correction of military records. Exhibit B - Military Personnel Records (including advisory opinion, if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests that all of his Department of Veterans Affairs (VA) rated disabilities be approved for Combat-Related Special Compensation (CRSC). 2. The applicant states, in effect, that the medical records of his injuries during the attack in Iraq were not returned back to the United States and are now not locatable. The applicant adds that all of his disabilities were incurred in combat, either in the Persian Gulf War or in the Korean War. 3. The applicant provides the denial of his CRSC application, his VA disability rating, and documents which show that military records chronicling any incident in which chemical or biological agents had been detected had not been taken back to the United States and the whereabouts of those records are now unknown. CONSIDERATION OF EVIDENCE: 1. The applicant entered on active duty in his status as a reservist on 5 July 1987, he served as an allied trades technician and military personnel technician, he served in Southwest Asia from 30 September 1990 to 27 April 1991, and he was honorably released from active duty as a Chief Warrant Officer 4 on 31 December 1991 and transferred to the Retired Reserve the following day. 2. Combat-Related Special Compensation (CRSC), as established by Section 1413a, Title 10, United States Code, as amended, states that 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% disabling. For periods before 1 January 2004 (the date this statute was amended), members had to have disabilities for which they have been awarded the Purple Heart and are rated at least 10% disabled or who are rated at least 60% disabled as a direct result of armed conflict, specially hazardous duty, training exercises that simulate war, or caused by an instrumentality of war. CRSC benefits are equal to the amount of VA disability compensation offset from retired pay based on those disabilities determined to be combat-related. 3. Concurrent Retirement and Disability Payment (CRDP), as established by the Fiscal Year (FY) 2004 National Defense Authorization Act (NDAA), provides a 10-year phase-out of the offset to military retired pay due to receipt of VA disability compensation for members whose combined disability rating is 50% or greater. 4. In the processing of similar cases, advisory opinions were obtained from the Office of the Under Secretary of Defense (OUSD), Military Personnel Policy. The OUSD has maintained in these opinions that in order for a condition to be considered combat related, there must be evidence of the condition having a direct, causal relationship to war or the simulation of war. DISCUSSION AND CONCLUSIONS: 1. CRSC was passed into law as the first stage of an ongoing legislative initiative to eliminate the prohibition of military retirees from receiving VA disability benefits. Due to cost constraints, while all military retirees will eventually receive concurrent receipt of VA disability compensation, only those military retirees who have disabilities incurred in combat, or in conditions simulating combat (which includes hazardous duties), are eligible for CRSC. 2. As stated above, the CRSC criteria is specifically for those military retirees who have combat related disabilities. Incurring disabilities while in a theater of operations is not, in and of itself, sufficient to grant a military retiree CRSC. The military retiree must show that the disability was incurred while engaged in combat, while performing duties simulating combat conditions, or while performing specially hazardous duties such as parachuting or scuba diving. 3. While wounds incurred in combat would certainly be considered combat related for CRSC purposes, the applicant has not submitted any documentation to support his contention. 4. The applicant states that he was injured in combat in the Korean War, but does not submit any evidence that he was treated for any wounds or combat related injuries during that time. 5. The applicant states that his Persian Gulf War medical records were never returned to the United States, and provides documents which show that the Army acknowledged that records were lost in the Persian Gulf. However, those documents only show that records of suspected chemical and biological incidents were lost; not medical treatment records. 6. As such, there should be no reason the applicant would not have medical records on any wounds or injuries he received while serving in Korea or the Persian Gulf. 7. The denial of the applicant’s request does not mean he will not be compensated for his service related disabilities. The denial means that he will not be compensated for his disabilities in the first group of military retirees being given this compensation. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __JRS __ __JRM _ __LF____ 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. ____Joe R. Schroeder___ CHAIRPERSON INDEX CASE ID AR20050001053 SUFFIX RECON YYYYMMDD DATE BOARDED 20050628 TYPE OF DISCHARGE (HD, GD, UOTHC, UD, BCD, DD, UNCHAR) DATE OF DISCHARGE YYYYMMDD DISCHARGE AUTHORITY AR . . . . . DISCHARGE REASON BOARD DECISION (NC, GRANT , DENY, GRANT PLUS) REVIEW AUTHORITY ISSUES 1. 2. 3. 4. 5. 6.