RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-00919
		INDEX CODE:  108.07
		COUNSEL:  NONE
		HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  28 Jul 07

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APPLICANT REQUESTS THAT:

His service-connected medical conditions, limited motion of cervical and lumbar spine and knee condition, 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 condition was caused by an instrumentality of war, tractor trailer accident.  His injury was incurred when he was riding on top of a load of sheetrock loaded on a tractor trailer, when the driver entered a sharp curve too fast and he was thrown to the ground along with the load.  His injury was further aggravated by two rear-end vehicle accidents in April 1988 and May 1989.  

In support of his request, applicant provided documentation associated with his CRSC application.  His complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

Data extracted for documentation provided by the applicant reflects he retired from the Air Force on 1 Jan 71, in the grade of master sergeant, after serving 20 years and 4 months on active duty.  

Available Department of Veterans Affairs (DVA) records reflect a combined compensable rating of 70% for his unfitting conditions.  

His CRSC application was disapproved on 17 Dec 03 based upon the fact that his service-connected medical conditions were determined not to be combat-related.

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AIR FORCE EVALUATION:

AFPC/DPPD recommends denial.  DPPD states other than his own account of the events involving the tractor trailer mishap, there is no evidence in his service medical records or personnel records to confirm his contention.  CRSC cannot be approved absent clear documentation which links the condition to a combat related factor.  However, if documentation did exist, the injuries from this type of event would not meet CRSC criteria.  An instrumentality of war is defined as 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."  Tractor trailers are not designed primarily for military service and are not unique to combat or military situations; therefore, a tractor trailer is not an instrumentality of war.  
The DPPD evaluation is at Exhibit E.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant responded and states that CRSC guidance also states an instrumentality of war "...may also include instrumentalities not designed primarily for military service if the use of, or occurrence involving, such instrumentality subjects the individual to a hazard peculiar to military service..."  In further support of his request, applicant provided his personal statement, his physician's consultation report, his DVA Hearing Transcript, a photograph, and excerpts of articles containing CRSC guidance.  His complete response, with attachments, is at Exhibit G.

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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 opinion and recommendation of the Air Force office of primary responsibility and adopt its 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-2004-00919 in Executive Session on 28 Apr 06, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 15 Mar 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, SAF/MRBC, dated 10 Nov 04.
    Exhibit D.  Letter, Applicant, dated 5 Mar 05.
    Exhibit E.  Letter, AFPC/DPPD, dated 13 Feb 06.
    Exhibit F.  Letter, SAF/MRBR, dated 24 Feb 06.
    Exhibit G.  Letter, Applicant, dated 13 Mar 06, w/atchs.