IN THE CASE OF: BOARD DATE: 27 October 2021 DOCKET NUMBER: AR20210011184 APPLICANT REQUESTS: Correction of his record to show reversal of his Combat Related Special Compensation (CRSC) claim denial for a 20 percent increase due to his rotator cuff injuries. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored letter * Veterans Affairs (VA) adjudication, page 1 * U.S. Army Human Resources Command (HRC) letter, dated 23 November 2020 * DA Form 2173 (Statement of Medical Examination and Duty Status) * DD Form 108 (Application for Retired Pay Benefits) and allied documents FACTS: 1. The applicant states he is requesting reconsideration for an additional 20 percent CRSC due to the injuries sustained during combat readiness training for deployment. The readiness training consisted of live fire exercises with multiple types of munitions along with small arms training. His injuries were sustained during this training. The lack of proper care by the military facilities lead to further complications in which both shoulders sustained multiple complications. Eventually, he had to have rotator cuff tear surgeries to repairs both shoulders. He has submitted multiple requests to the VA and finally on 28 September 2020 the VA granted him the additional compensation of 20 percent. He is now requesting that consideration be given as he firmly believes the military should take care of their own. He devoted over 20 years to military life and hopes that the Board can see to approve his request. 2. A review of the applicant's official records shows the following: a. National Guard Bureau Form 23A (Army National Guard (ARNG) Annual Retirement Point Statement) shows the applicant entered the ARNG on or about 1963 and served until 1989. b. On 7 August 2018, the applicant applied for CRSC through HRC for the conditions of tinnitus and degenerative arthritis, left shoulder. He was approved for 10 percent compensation for tinnitus, but denied for the degenerative arthritis, left shoulder because no documentation in his claim established a definite causal relationship between a combat related event and the resulting disability. c. On 25 November 2018, HRC denied the applicant's claim for degenerative arthritis, left shoulder because no documentation in his claim established a definite causal relationship between a combat related event and the resulting disability. d. On 7 May 2019, HRC denied the applicant's claim for degenerative arthritis, left shoulder because no new evidence was provided to show a combat-related event caused the condition. e. On 20 February 2020, HRC denied the applicant's claim for degenerative arthritis, left shoulder because no new evidence was provided to show a combat-related event caused the condition. This was the applicant's final disapproval. f. On 21 September 2020, HRC denied the applicant's claim for degenerative arthritis, left shoulder because no new evidence was provided to show a combat-related event caused the condition. The records showed he received a final disapproval on 20 February 2020. His current request did not include medical documentation. g. On 23 November 2020, the HRC CRSC program office notified the applicant that the office was unable to award degenerative arthritis, left shoulder. The documentation he submitted makes no mention of a combat-related event in relationship to his disabilities. 3. The applicant provides: a. VA adjudication, page 1 showing he was awarded a service connected disability for degenerative arthritis of the left shoulder. b. DA Form 2173 showing the applicant fell from a jeep and felt a sharp pain in his left shoulder during inactive duty training between 4 and 5 June 1983. c. DD Form 108 and allied documents showing the applicant's application for retirement. ? BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and regulatory guidance. The Board considered the applicant’s statement, his military service record, and documents provided by the applicant. Evidence in the record show the Human Resources Command did not find any of his disabilities to be combat related. The Board found no evidence that any one of his disabilities was the direct result of armed combat; was related to the use of combat devices (instrumentalities of war); the result of combat training; incurred while performing extra hazardous service though not engaged in combat; incurred while performing activities or training in preparation for armed conflict in conditions simulating war. Based on regulatory guidance, the Board agreed that a reversal on the previous non-combat related determinations for his disabilities is not warranted. Therefore, relief was denied. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING XXX XX XXX 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. Department of Defense Financial Management Regulation, Volume 7B: a. Section 630301 states a member may not be paid CRSC unless he or she has applied for and elected to receive compensation under the CRSC program by filing an application on DD Form 2860 (Claim for CRSC), with the Military Department from which he or she retired. A member may submit an application for CRSC at any time and, if otherwise qualified for CRSC, compensation will be paid for any month after May 2003 for which all conditions of eligibility were met. b. Section 630502 states a combat-related disability is a disability with an assigned medical diagnosis code from the VA Schedule Rating of Disabilities (VASRD). The Military Departments will determine whether a disability is combat-related based on the following criteria: * as a direct result of armed conflict * while engaged in hazardous service * in the performance of duty under conditions simulating war, or * through an instrumentality of war c. The Department will record for each disability determined to be combat-related which of the circumstances provided qualifies the disability as combat-related. A determination of combat-relatedness (see section 6306) will be made with respect to each separate disability with an assigned medical diagnosis code from the VASRD. A retiree may have disabilities that are not combat-related. Such disabilities will not be considered in determining eligibility for CRSC or the amount of CRSC payable. An uncorroborated statement in a record that a disability is combat-related will not, by itself, be considered determinative for purposes of meeting the combat-related standards for CRSC prescribed herein. CRSC determinations must be made on the basis of the program criteria. d. Section 6306 (Determinations of Combat Relatedness) (1) Direct Result of Armed Conflict: a. The disability is a disease or injury incurred in the line of duty as a direct result of armed conflict. To support a combat-related determination, it is not sufficient to only state the fact that a member incurred the disability during a period of war, in an area of armed conflict, or while participating in combat operations. There must be a definite causal relationship between the armed conflict and the resulting disability. b. Armed conflict includes a war, expedition, occupation of an area or territory, battle, skirmish, raid, invasion, rebellion, insurrection, guerilla action, riot, or any other action in which Service members are engaged with a hostile or belligerent nation, faction, force, or with terrorists. c. Armed conflict may also include such situations as incidents involving a member while interned as a prisoner of war or while detained against his or her will in custody of a hostile or belligerent force, or while escaping or attempting to escape from such confinement, prisoner of war, or detained status. (2) While Engaged in Hazardous Service. Hazardous service is service that includes, but is not limited to, aerial flight, parachute duty, demolition duty, experimental stress duty, and diving duty. A finding that a disability is the result of such hazardous service requires that the injury or disease be the direct result of actions taken in the performance of such service. Travel to and from such service, or actions incidental to a normal duty status not considered hazardous, are not included. (3) In the Performance of Duty Under Conditions Simulating War. In general, performance of duty under conditions simulating war covers disabilities resulting from military training, such as war games, practice alerts, tactical exercises, airborne operations, leadership reaction courses, grenade and live fire weapon practice, bayonet training, hand-to-hand combat training, repelling, and negotiation of combat confidence and obstacle courses. It does not include physical training activities such as calisthenics, jogging, formation running, or supervised sport activities. (4) Instrumentality of War: a. There must be a direct causal relationship between the instrumentality of war and the disability. It is not required that a member’s disability be incurred during an actual period of war. The disability must be incurred incident to a hazard or risk of the service. b. An instrumentality of war is a vehicle, vessel, or device designed primarily for Military Service and intended for use in such Service at the time of the occurrence or injury. It may also include such instrumentality not designed primarily for Military Service if use of or occurrence involving such instrumentality subjects the individual to a hazard peculiar to Military Service. Such use or occurrence differs from the use or occurrence under similar circumstances in civilian pursuits. c. A determination that a disability is the result of an instrumentality of war may be made if the disability was incurred in any period of service as a result of such diverse causes as 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 materiel. d. For example, if a member is on a field exercise, and is engaged in a sporting activity and falls and strikes an armored vehicle, then the injury will not be considered to result from the instrumentality of war (armored vehicle) because it was the sporting activity that was the cause of the injury, not the vehicle. On the other hand, if the individual was engaged in the same sporting activity and the armored vehicle struck the member, then the injury would be considered the result of an instrumentality of war. 2. Title 38, United States Code, sections 1110 and 1131, permit the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, an individual's medical condition, although not considered physically unfit for military service at the time of processing for separation, discharge, or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210011184 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1