AR20150010104

BOARD DATE: 16 June 2016

DOCKET NUMBER: AR20150010104

BOARD VOTE:

_________ _______ ________ GRANT FULL RELIEF

________ ________ ________ GRANT PARTIAL RELIEF

________ ________ ________ GRANT FORMAL HEARING

___x_____ __x______ __x___ DENY APPLICATION

2Enclosures
1. Board Determination/Recommendation
2. Evidence and Consideration

BOARD DATE: 16 June 2016

DOCKET NUMBER: AR20150010104

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.

___________x______________
CHAIRPERSON

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.

BOARD DATE: 16 June 2016

DOCKET NUMBER: AR20150010104

THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1. Application for correction of military records (with supporting documents provided, if any).

2. Military Personnel Records and advisory opinions (if any).

THE APPLICANT’S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests his shoulder injury be battle-related. In effect, he requests reversal of the U.S. Army Human Resources Command (HRC) decision to deny him combat-related special compensation (CRSC) for his shoulders.

2. The applicant states that he believes his shoulder injuries to be combat-related because they occurred while he was wearing the vest for hours on convoys in Iraq. A doctor repeatedly saw him after the convoys. He was diagnosed with diabetes and received medical treatment. He never received medical treatment for his shoulders.

3. The applicant provides:

* seven Standard Forms (SF) 600 (Health Record Chronological Record of Medical Care)
* DD Form 215 (Correction to DD Form 214 Certificate of Release or Discharge from Active Duty)
* two letters from HRC, CRSC Branch
* CRSC Reconsideration Request Form
* two Department of Veterans Affairs (VA) Ratings
* Chronological Statement of Retirement Points

CONSIDERATION OF EVIDENCE:

1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicants failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2. The applicant enlisted in the Regular Army (RA) on 17March 1978 and he held military occupational specialty (MOS) 88M (Motor Transport Operator). He was released from active duty on 15April 1992 and was transferred to the U.S. Army Reserve (USAR) Control Group.

3. He entered active duty on 11September 2004 and served in Iraq from 10December 2004 through 6December 2005.

4. He provides copies of two SF 600, dated 14and 25April 2005, showing he received medical care for left shoulder tenderness and strain. The SF, dated 14April 2005, noted his back and shoulder pains worsened with wearing the interceptor body armor, but he was able to wear the vest. He was also able to tolerate the vest for 4-5 days for 12hours shifts. Further, he was diagnosed as pre-diabetic.

5. He was released from active duty on 4 September 2005, as shown on his amended DDForm 215. He reenlisted in the RA and reentered active duty on 5November 2005.

6. He also provides copies of five SF 600, dated between 8January and 22May 2007, showing he received medical care for a shoulder strain and diabetes. The form, dated 8January 2007, noted he had stated he overstressed his right shoulder in 2004 in Iraq due to the use of a vest.

7. He again served in Iraq from 18November 2006 through 6 January 2008.

8. On 17 November 2009, a DD Form 215 was issued amending the 31December 2005 DDForm214 to show a separation date of 4November 2005 and that he was not transferred to a Reserve unit.

9. An informal physical evaluation board convened on 30December 2009 and found him fit for duty for diabetes and he was returned to duty.

10. He served continuously on active duty until he retired on 31August 2011, for sufficient length of service.

11. He further provides copies of:

a. A letter, dated 7 December 2012, in which HRC, CRSC Branch, approved his CRSC claim for major depressive disorder, tinnitus, bilateral knee degenerative joint disease, and diabetes. HRC denied his claim for right shoulder strain and stated no evidence was found in the claim to show that a combat-related event caused the condition.

b. A VA Rating, dated 3 January 2014, showing award of a 10% service-connected rating for left shoulder pain based on evidence of degenerative arthritis.

c. A CRSC Reconsideration Request Form, dated 14January 2014, in which he requested reconsideration for CRSC for a left shoulder strain based on the VA rating.

d. A letter, dated 4 March 2014, in which HRC, CRSC, advised him that documentation did not show an accident or incident to connect his left shoulder strain disability to a combat-related event.

e. A VA Rating, dated 12August 2014, showing increased 20% service-connected ratings for left and right shoulder strain, respectively.

12. In a letter, dated 19May 2015, HRC, CRSC, advised him that they were unable to overturn the previous adjudications as he still had not submitted any new evidence linking his requested conditions to a combat-related event. The disapproval was final and he could appeal to the ABCMR.

REFERENCES:

1. Army Regulation 635-40 (Personnel Separations Physical Evaluation for Retention, Retirement, or Separation) sets for the policies for the disposition of Soldiers found unfit because of physical disability reasonably to perform the duties of his/her office, grade, rank, or rating. The regulation states:

a. A combat-related injury is a personal injury or sickness that a Soldier incurs under one of the following conditions: 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.

b. An instrumentality of war is a device designed primarily for military service and intended for use in such service at the time of the occurrence of the injury. It may also be a device not designed primarily for military service if use of or occurrence involving such a device subjects the individual to a hazard peculiar to military service. This use or occurrence differs from the use or occurrence under similar circumstances in civilian pursuits. There must be a direct causal relationship between the use of the instrumentality of war and the disability and the disability must be incurred incident to a hazard or risk of the service.

2. CRSC, as established by Title 10, U.S. Code (USC), section 1413a, as amended, provides for the payment of the amount of money a military retiree would receive from the VA for combat-related disabilities if it weren’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 cause by an instrumentality of war. Such disabilities must be compensated by the VA and rated at least 10% disability. Military retirees who are approved for CRSC must have waived a portion of their military retired pay because CRSC requires the Military Department to return a portion of the waived retired pay to the military retiree.

3. Title 10, USC, section 104, also defines a “combat-related injury” as a personal injury or sickness which 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.

DISCUSSION:

1. The applicant’s contentions and the documentation he submitted were carefully considered. Incurring disabilities while in a theater of operations or in training exercises is not, in and of itself, sufficient to grant a military retiree CRSC. The military retiree must show the disability was incurred while engaged in combat, while performing duties simulating combat operations, or while performing especially hazardous duties such as parachuting or scuba diving.

2. HRC denied his multiple claims for CRSC for his shoulder injuries based on no documentation showing an accident or incident connecting the disability to a combat-related event. HRC denied his last claim because he still had not submitted any new evidence to link the requested condition to a combat-related event.

3. There is no evidence of record and he did not provide sufficient evidence showing his conditions are combat-related. Without evidence showing or connecting his left shoulder strain disability to a combat-related event, there is insufficient evidence to support the reversal of the decision to deny him CRSC benefits.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings AR20150000953

Enclosure 1

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

ABCMR Record of Proceedings (cont) AR20150010104

2

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 1

ABCMR Record of Proceedings (cont) AR20150010104

5

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 2