RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 26 July 2005 DOCKET NUMBER: AR20050001673 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: Ms. Linda D. Simmons Chairperson Mr. Patrick H. McGann Jr. Member Mr. Leonard G. Hassell 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. In effect, the applicant requests that his Department of Veterans Affairs (VA) rated disabilities be approved for Combat-Related Special Compensation (CRSC). 2. The applicant states that the National Personnel Records Center (NPRC) cannot find any records on him for the period 1948 through 1952. Without those records, he cannot verify his eligibility for CRSC. 3. In a letter dated 31 January 2005, the applicant states that he was injured several times in Korea, but was treated at the Regimental aid station and was never sent to a hospital. He adds that he has no written proof of his injures, but has the scars to prove he was injured. 4. The applicant provides the denial of both his CRSC application and his request for reconsideration of his CRSC application; an excerpt of the 9th Infantry Division Service Company enlisted roster dated 31 July 1950; his officer qualification record; ex excerpt from the 2nd Infantry Division Museum archives; Department of Veterans Affairs (VA) medical records; correspondence between the applicant and the NPRC; and his separation document from the Korean War. CONSIDERATION OF EVIDENCE: 1. 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. 2. 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. 3. On 10 March 2004, the U.S. Army Physical Disability Agency (USAPDA) Combat Related Special Compensation (CRSC) Branch determined that the applicant’s lupus, removal of kidney, prostate gland condition, cataract, and tinnitus were not combat related and denied his request for CRSC. On 10 January 2005, the USAPDA CRSC Branch denied the applicant’s request for reconsideration. 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 the applicant has submitted evidence that he served in Korea during the Korean War, he has not submitted any evidence that any of his VA rated disabilities was a result of a combat related injury. 4. The applicant himself has stated that he was treated for his injuries at a Regimental aid station and he has no record of that treatment. The possibility that no record was ever made of the treatment given to the applicant must be considered in this case. 5. Unfortunately, without evidence to show that the applicant’s VA rated disabilities were combat related, he does not meet the statutory requirement for CRSC. 6. 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 ___lds __ ____lgh__ ____phm_ 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. _________Linda D. Simmons______ CHAIRPERSON INDEX CASE ID AR20050001673 SUFFIX RECON YYYYMMDD DATE BOARDED 20050726 TYPE OF DISCHARGE (HD, GD, UOTHC, UD, BCD, DD, UNCHAR) DATE OF DISCHARGE YYYYMMDD DISCHARGE AUTHORITY AR . . . . . DISCHARGE REASON BOARD DECISION DENY REVIEW AUTHORITY ISSUES 1. 2. 3. 4. 5. 6.