ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  19 December 2019

	DOCKET NUMBER:  AR20180016094


APPLICANT REQUESTS: correction of his separation orders to show his disability is 
based on a direct result of armed conflict or caused by an instrumentality of war and 
is combat related.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	DD Form 214 (Certificate of Release or Discharge from Active Duty)
*	separation orders
*	letter from Army Human Resources Command (AHRC)

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, 
United States Code (USC), section 1552(b); however, the Army Board for Correction 
of Military Records (ABCMR) conducted a substantive review of this case and 
determined it is in the interest of justice to excuse the applicant's failure to timely file. 

2.  The applicant states he received his Combat-Related Special Compensation 
(CRSC) on 17 March 2016.

3.  On 19 August 2014, an Informal Physical Evaluation Board (PEB) found the 
applicant physical unfit for a right shoulder labral tear, and lumbar spondylosis.  The 
PEB further recommended a 40 percent disability rating.  The applicant's disability 
disposition was not based on diseases or injury incurred in the line of duty in combat 
with an enemy of the United States and as a direct result of armed conflict or caused 
by an instrumentality of war and incurred in the line of duty during a period of war.  
The disability did not result from a combat-related injury under the provisions of 26 
USC 104 or USC 10216.   

4.  On 2 September 2014, the applicant concurred with the PEB findings and waived 
a formal hearing of his case.  He did not request reconsideration of his Department 
of Veterans Affairs (VA) ratings.

5.   The applicant was retired due to permanent disability effective                           
15 December 2014, and placed on the Retired List on 16 December 2014. 

6.  His separation order shows:

     a.  His disability was not based on injury or disease received in the line of duty as 
a direct result of armed conflict or caused by an instrumentality of war and incurred 
in the line of duty during a period of was as defined in Title 26 United States Code 
(U.S.C.) section 104.

     b.  His disability did not result from a combat related injury as defined in              
Title 26 U.S.C., section 104.

7.  On 17 March 2016, AHRC, notified the applicant his claim for CRSC was 
approved for the following conditions:

*	generalized anxiety disorder with depressive features
*	migraines
*	radiculopathy, right lower extremity involving the sciatic nerve
*	thoracolumbar spine spondylosis and lumbar spondylosis
*	tinnitus

8.  In the processing of this case, an advisory opinion was obtained from the Legal 
Advisor, U.S. Army Physical Disability Agency, which states, in part, based upon a 
review of the records, the request is legally sufficient.  The complete advisory 
opinion is available for the Board's review and consideration. 

9.  On 2 October 2019, the applicant was provided a copy of the advisory opinion for 
his comments and/or rebuttal.  

10.  On 9 October 2019, the applicant indicated he had no additional comments 
regarding his case.

11.  CRSC, as established by Section 1413a, Title 10, United States Code, as 
amended, provides for the payment of the amount of money a military retiree would 
receive from the Department of Veterans Affairs (VA) for combat related disabilities if 
it wasn’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% 
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.  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.

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


BOARD DISCUSSION:

1.  The Board carefully considered the applicant’s request, supporting documents, 
evidence in the records and an advisory opinion.  The Board considered the 
applicant’s statement, his record of service to include deployments, the injuries that 
resulted in his separation and the award of CRSC by AHRC.  The Board considered 
the conclusions of the PDA legal review and the statement that the applicant’s 
separation order would be corrected accordingly.  The Board found that an award of 
CRSC does not, in and of itself, constitute a mandate to amend the applicant’s 
separation orders.

2.   The Board found it was uncontested the dual unfitting conditions were either 
caused or aggravated by unspecified conditions in Afghanistan cumulatively 
resulting in the applicant’s receipt of 40% Physical Disability Rating. The generic 
origin language and lack of specificity on the DA199 negates any further combat 
related AR 635-40 Para 5-25/26 analysis, however Para 5-27 (10 USC §1212 as 
modified by NDAA 2008) provides for enhanced severance benefits when line of 
duty (LOD) injuries arise in combat zone operations (no other qualifiers are needed). 
While the genesis of the applicant’s unspecified deployed disabilities would normally 
most appropriately reflect entitlement to this benefit, it is conditioned on receipt of 
severance benefits (ratings between 0 and 20%). Since the applicant retired with a 
40% combined disability rating, he is by definition not entitled to this benefit. Using 
the available evidence, the Board concluded that no mistake of fact or law has 
occurred in the consideration of this case.  Based on a preponderance of evidence, 
the Board determined there was no evidence of error or injustice requiring a 
correction of the applicant’s records.

3.  After reviewing the application and all supporting documents, the Board found 
that relief was not warranted.
?


BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:XXX	:XXX	:XX	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or 
injustice.  Therefore, the Board determined the overall merits of this case are 
insufficient as a basis for correction of the records of the individual concerned.


	  
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.


















REFERENCES:

1.  Title 10, USC, section 1552(b), provides that applications for correction of military 
records must be filed within three years after discovery of the alleged error or 
injustice.  This provision of law also allows the ABCMR to excuse an applicant's 
failure to timely file within the three-year statute of limitations if the ABCMR 
determines it would be in the interest of justice to do so.

2.  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.  Title 26, USC, section 104, states the term "combat-related injury" means 
personal injury or sickness that is incurred as a direct result of armed conflict; while 
engaged in extra hazardous service, under conditions simulating war; or which is 
caused by an instrumentality of war.

4.  Department of Defense Instruction 1332.18 (Disability Evaluation System (DES)), 
dated 5 August 2014, establishes policy, assigns responsibilities, and provides 
procedures for referral, evaluation, return to duty, separation, or retirement of service 
members for disability in accordance with Title 10, USC; and related determinations 
pursuant to sections 3501, 6303, 8332, and 8411 of Title 5, USC; section 104 of Title 
26, USC; and section 2082 of Title 50, USC.  Enclosure 3 to appendix 5 
(Administrative Determinations) states:

a.	For purposes of employment under federal civil service, the PEB renders a 
final decision on whether an injury or disease that makes the service member unfit 
or that contributes to unfitness was incurred in combat with an enemy of the United 
States, was the result of armed conflict, or was caused by an instrumentality of war 
during war.  These determinations pertain to whether a military retiree later 
employed in federal civil service is entitled to credit of military service toward a 
federal civil service retirement; retention preference; credit of military service for civil 
service annual leave accrual; and exclusion of federal income taxation. 

b.	 For federal tax benefits, disability evaluation includes a determination and 
supporting documentation on whether the service member’s disability compensation 
is excluded from federal gross income.  For compensation to be excluded, the 
individual must either have been a military service member, including the reserve 
component, or was under binding written agreement to become a service member 
on September 24, 1975; or have disabilities determined to be combat related.

c.	The standard for combat related determinations covers injuries and diseases 
attributable to the special dangers associated with armed conflict or the preparation 
or training for armed conflict.  A disability is considered combat-related if it makes 
the service member unfit or contributes to unfitness and the preponderance of 
evidence shows it was incurred under any of the following circumstances:

(1)	 As a direct result of armed conflict.

(2)	 While engaged in hazardous service.  Such service includes, but is not 
limited to, aerial flight duty, parachute duty, demolition duty, experimental stress 
duty, and diving duty.

(3)	 Under conditions simulating war.  In general, this covers disabilities 
resulting from military training, such as war games, practice alerts, tactical exercises, 
airborne operations, and leadership reaction courses; grenade and live fire weapons 
practice; bayonet training; hand-to-hand combat training; rappelling; and negotiation 
of combat confidence and obstacle courses.  It does not include physical training 
activities, such as calisthenics and jogging or formation running and supervised 
sports.

(4)	 Caused by an instrumentality of war.  Occurrence during a period of war 
is not a requirement to qualify.  If the disability was incurred during any period of 
service as a result of wounds caused by a military weapon, accidents involving a 
military combat vehicle, injury or sickness caused by fumes, gases, or explosion of 
military ordnance, vehicles, or material, the criteria are met.  However, there must be 
a direct causal relationship between the instrumentality of war and the disability.  For 
example, an injury resulting from a service member falling on the deck of a ship 
while participating in a sports activity would not normally be considered an injury 
caused by an instrumentality of war (the ship) since the sports activity and not the 
ship caused the fall.  The exception occurs if the operation of the ship caused the 
fall.

NOTHING FOLLOWS

ABCMR Record of Proceedings (cont)	 AR20180016094
	
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