RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-03631
		INDEX CODE:  108.07
		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His service-connected medical conditions degenerative joint and disc disease of the cervical and lumbar spine and adenocarcinoma of the prostate 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:

Applicant makes no contentions.

In support of his request, applicant provided documentation associated with his Department of Veterans Affairs (DVA) ratings decision.  His complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

After serving in the National Guard in an enlisted status, applicant was appointed a second lieutenant, Army Air Corps on 25 Apr 43.  He was progressively promoted to the permanent grade of lieutenant colonel, having assumed that grade effective and with a date of rank of 12 Jul 57.  On 30 Sep 67, he was retired for length of service.  His record was corrected as a result of AFBCMR action to show that he was retired by reason of physical disability with a diagnosis of cervical disc disease, with limited motion, recurrent spasms, and poor grip of left hand, with a combined rating of 50%.  He served 25 years and 9 days on active duty

His CRSC application was disapproved on 4 Sep 03.  However, subsequent to the changes to Public Law 107-314, his application was approved for Malignant Growth Genitourinary, Agent Orange presumptive, rated at 30%.  His spinal disc condition was determined not to be combat-related.  On 17 Nov 04, based on the Medical Consultant's determination concerning his degenerative joint disease/degenerative disc disease of the cervical spine, his CRSC determination was amended to include degenerative joint disease/degenerative disc disease of the cervical spine, rated at 40%.

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AIR FORCE EVALUATION:

AFPC/DPPD recommends denial.  DPPD states evidence submitted with his application does not support approval of his disabilities as combat-related, due to an instrumentality of war, or hazardous service.  He was treated for Spinal Disc Conditions and it was determined by Physical Evaluation Board that it was the result of his jumping dating back to 1953.  The PEB found him physically fit for continued service but the AFBCMR overturned this decision and granted him disability retirement, but not considered to be combat-related.  

The DPPD evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 20 Feb 04 for review and comment within 30 days.  As of this date, this office has received no response.

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ADDITIONAL AIR FORCE EVALUATION:

The BCMR Medical Consultant recommends his records be corrected to reflect his service connected degenerative joint disease and degenerative disc disease of the cervical spine (not the lumbar spine) are combat-related.  The Medical Consultant states records support a conclusion that his neck condition was directly caused by hazardous duty.  There is no evidence to support a relationship of his back condition to combat or other qualifying conditions.  He participated in parachute duty, which is listed as hazardous service, and injured his neck in 1966 while participating in parachute duty.  The Medical Consultant Evaluation is at Exhibit E.

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APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

A copy of the additional Air Force evaluation was forwarded to the applicant on 19 Oct 04 for review and comment within 30 days.  As of this date, this office has received no response.

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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 with exception to his degenerative joint disease/degenerative disc disease of the cervical spine, 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-2003-03631 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 23 Oct 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPD, dated 4 Feb 04.
    Exhibit D.  Letter, SAF/MRBR, dated 20 Feb 04.

    Exhibit E.  Letter, BCMR Medical Consultant, dated 9 Aug 04.
    Exhibit F.  Letter, SAF/MRBC, dated 19 Oct 04.