RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-02861
		INDEX CODE:  108.07
		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His service-connected medical condition, lumbar spine intervertebral disc syndrome, be assessed as combat related in order to qualify for compensation under the Combat Related Special Compensation (CRSC) Act.

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APPLICANT CONTENDS THAT:

At the time of his injury he was a KC-135 pilot attending instructor pilot training.  He was injured while performing an emergency training procedure on-board an aircraft.  The operational maneuver was mandated due to the inherent dangers of flying.  This maneuver required him to escape from the aircraft through an over-wing hatch, walk out along the top-side of the wing, and slide down the flaps.  He was practicing early in the morning and condensation had formed on the wing.  He slipped on the condensation, lost his balance, and fell approximately seven feet to the ground.  His injury qualifies him for CRSC under the established criteria as resulting from an instrumentality of war and while engaged in hazardous service.  

In support of his request applicant provided a personal statement, documentation associated with his CRSC determination, and documentation associated with the CRSC program.  His complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

Applicant was appointed a second lieutenant, Reserve of the Air Force on 118 Sep 78 and was progressively promoted to the grade of captain, having assumed that grade effective and with a date of rank of 12 Dec 90.  He served as an aircraft pilot.  On 31 Dec 98, he was retired for length of service.  He served 20 years, 3 months, and 13 days on active duty.

His CRSC application was disapproved on 21 Jul 03 and 13 Aug 03 based on the fact that his medical conditions were determined not to be combat related.

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AIR FORCE EVALUATION:

AFPC/DPPD recommends denial.  DPPD states the fact a member may have incurred a medical condition during a period of war or while participating in combat operation is not sufficient to support a combat-related determination.  A review of the limited records failed to show a combat-related connection for his invertebral disc syndrome.  The accident in which he injured his back after a short fall from the wing of a KC-135 practicing egress has no direct causal connection to combat activity.  It is an injury resulting from his accidental fall off the wing of an aircraft during the performance of his everyday duties as a crewmember.  His injury was not caused by the aircraft but by his own misstep.  Although aerial flights are listed as hazardous service, travel to and from such service, or actions incidental to a normal duty status not considered hazardous, are not regarded as combat related.

The DPPD evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant reiterates his injury falls into the category labeled "While Engaged in Hazardous Service."  Aerial flight is listed as hazardous service, this, his injury which occurred while performing required aircrew duties while onboard an aircraft, qualifies under the "engagement in hazardous service" for CRSC determination.  In order to meet the requirement of the combat-relatedness determination, the injury must have occurred while performing a task considered hazardous.  When considering the Webster dictionary definition of hazard, he was injured while performing a task considered hazardous.  An excerpt from the Emergency Procedures T.O. clearly expresses the inherent risk or danger associated with any action contained within the section of the T.O.

In support of his response, applicant provided a personal statement, CRSC program guidelines, and an excerpt from the KC-135 Emergency Procedures T.O.  His complete response, with attachments, is at Exhibit E.

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ADDITIONAL AIR FORCE EVALUATION:

The BCMR Medical Consultant recommends denial.  The Medical Consultant states practice aircraft ground egress is not considered aerial flight and does not qualify as hazardous duty for purposes of CRSC eligibility.  In order to meet the instrumentality of war criteria, there must be a direct causal relationship between the instrumentality of war and the disability and such use or occurrence differs from the use or occurrence under similar circumstances in civilian pursuits.  Exiting an aircraft during a practice ground egress does not qualify since the injury was caused by jumping off the static airplane, not through the operation of functioning to the airplane.  Injuries sustained by either falling/jumping off or working on a military device where the injury was not caused by the device itself, but instead error, misjudgment or mishap, are not considered injuries eligible for CRSC.

The Medical Consultant evaluation is at Exhibit F.

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APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Applicant states his condition qualifies for CRSC as it meets the condition "while engaged in hazardous service."  Aerial flight is listed as a hazardous duty and must be performed by qualified aircrew members.  In order to be qualified for aerial flight, an aircrew member must be proficient at ground operations, egress, and other emergency procedures as listed in AFI 11-2KC-135V2, Pilot's Flight Evaluation Standards.  The activities listed, which include egress, are required actions incidental to a normal duty status.  Other hazardous duties reflected under CRSC guidelines do not restrict CRSC qualification to only the actual duty but implies that duties incidental to a normal duty status considered hazardous will qualify for CRSC.  Emergency egress is listed under the emergency operations section of the T.O.  These situations are designated emergencies because there is a possibility of injury or death to aircrew members.  Air Force Occupational Safety and Health Standards (AFOSH) 91-100, lists falls from an aircraft as a hazard.  To compound this hazard, AFOSH 91-100 states, "When aircraft are wet extra caution will be used."  In his case, the condensation was not visible from eye-level while standing, so he was not alerted to use extra caution.  

His complete response, with attachments, is at Exhibit H.

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THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was timely filed.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  After a thorough review of the available evidence of record, it is our opinion that the service-connected medical conditions the applicant believes are combat-related were not incurred as the 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, and therefore, do not qualify for compensation under the CRSC Act.  We agree with the opinions and recommendations of the Air Force offices of primary responsibility and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  In the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application.

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The following members of the Board considered AFBCMR Docket Number BC-2003-02861 in Executive Session on 14 Dec 04, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 20 Aug 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPD, dated 30 Oct 03.
    Exhibit D.  Letter, SAF/MRBR, dated 7 Nov 03.
    Exhibit E.  Letter, Applicant, dated 23 Jan 04, w/atchs.
    Exhibit F.  Letter, BCMR Medical Consultant, dated 3 Aug 04
    Exhibit G.  Letter, SAF/MRBC, dated 19 Oct 04.