RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-03782
		INDEX CODE:  108.07
		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His service-connected medical conditions, paralysis of left ulnar nerve, limited flexion of knee, and left shoulder bursitis, 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:

His Department of Veterans Affairs (DVA) rating codes do not correctly reflect that his injuries are combat-related as a result of hazardous service, flying aircraft.  His nerve damage is the result of anthrax inoculations received during mobility processing.  

In support of his request applicant provided a personal statement, documentation associated with his CRSC determination.  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 and was voluntarily ordered to extended active duty on 27 May 81.  He was progressively promoted to the grade of lieutenant colonel, having assumed that grade effective and with a date of rank of 1 Apr 98.  He served as a pilot aboard a variety of military aircraft.  He voluntarily retired from the Air Force on 31 Oct 01.  He served 20 years, 5 months, and 4 days on active duty.

His CRSC application was approved for his tinnitus rated at 10%.  His remaining medical conditions were determined not to be combat related.

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AIR FORCE EVALUATION:

AFPC/DPPD recommends denial.  DPPD states the bursitis of his left shoulder occurred when he fell several feet to the ground off a T-38 aircraft driving his parachute shoulder strap and harness release into his collar bone area.  When egressing from the back seat of hit T-38 aircraft, he lost his balance, slipped and twisted his left knee.  While these incidents involve military aircraft, the injuries were not caused by the device itself but are due to his error or misjudgment.  These disabilities fail to meet the established criteria under the provisions of performance of duty under conditions simulating war, instrumentality of war, actual combat, or hazardous service.  The ulnar nerve injury occurred when a medical technician improperly inserted a hypodermic needle towards the backside of his arm piercing and cutting the nerve with the needle and injecting anthrax serum in and around the nerve causing additional nerve damage.  The injury clearly involves neither hazardous service nor some type of combat activity and is not sufficient justification to support a combat-related determination.  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 denial.  The Medical Consultant states aerial flight is defined as from the moment of takeoff to the moment of landing and does not include taxing or other ground activities related to flying.  His conditions were not incurred during aerial flight.  Injury by working on or lifting an inanimate military device, or part of a military device, or falling off, tripping over or running into such devices, is not considered as being actual functioning of the device in its intended purpose as an instrumentality of war, or as a result of its unique military design.  Injuring his knee and shoulder in a fall while exiting the aircraft after completion of flying duties is not a circumstance that qualifies for the CRSC program.  The anthrax vaccine is not an instrumentality of war but a defense against one.  Disability due to residuals of infection by the anthrax bacillus employed as a biological weapon by a hostile enemy would qualify for CRSC.  The Medical Consultant evaluation is at Exhibit E.

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APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 3 Nov 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 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-2003-03782 in Executive Session on 23 Feb 05, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 3 Nov 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPD, dated 11 Feb 04.
    Exhibit D.  Letter, SAF/MRBR, dated 20 Feb 04.
    Exhibit E.  Letter, BCMR Medical Consultant, dated 3 Nov 04.
    Exhibit F.  Letter, SAF/MRBC, dated 3 Nov 04.