RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-02645
		INDEX CODE:  108.07
		COUNSEL:  NONE
		HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  28 Feb 06

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APPLICANT REQUESTS THAT:

His service-connected medical conditions, degenerative disc disease and right foot drop, 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 injuries were incurred while manually lifting an aircraft canopy during simulated combat operations.  He was required by the exercise to prepare an aircraft for launch within the time constraints dictated by the mission.  On the day of the injury, had it not been for the time constraints he perhaps would have requested a hydraulic cart to apply hydraulic pressure to the aircraft and would have raised the canopy without injuring himself.  The simulated combat environment, time constraints of the Combat Turn, the broken original aircraft, the lack of other maintenance personnel readily available, and the desire to accomplish the mission all contributed to his injury.  The only thing within his control was the desire to accomplish the mission in a timely manner.  

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

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STATEMENT OF FACTS:

Applicant contracted his initial enlistment in the Regular Air Force on 15 Nov 78.  He was progressively promoted to the grade of technical sergeant, having assumed that grade effective and with a date of rank of 1 Dec 89.  He served as an Aircraft Weapons Specialist and a Computer Systems Operator.  He voluntarily retired from the Air Force on 30 Nov 98, having served 20 years and 16 days on active duty.

Available Department of Veterans Affairs (DVA) records reflect a combined compensable rating of 100% for his unfitting conditions.  

His CRSC application was disapproved on 12 Dec 03 and 22 Jul 04 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 documentation in his service medical record does confirm he injured his back lifting an aircraft canopy; however, no evidence was submitted to confirm he was participating in a mobility exercise at the time of the injury.  His records indicate he was treated periodically throughout his career for low back pain and strain.  The cause of these subsequent incidents is not clear except for an entry dated 30 Mar 98 for low back pain after moving furniture.  

The issue at hand is whether the act of lifting an aircraft canopy manually is considered combat related.  Injuries from lifting are not unique to military service or to combat situations; therefore they are normally considered to be industrial hazards rather than combat related injuries.  He indicated he knew of the hydraulic malfunction before lifting the canopy and options were available to him such as using a hydraulic cart to lift the canopy that would have prevented the injury.  While heightened excitement and increased operations tempo clearly exist during a mobility exercise, maintenance procedures and inspections issues emphasize safety awareness and injury prevention.  His claim that he was required to perform this action to prevent the "likely" failure of the mobility exercise seems somewhat exaggerated.  Had the canopy hydraulics failed during his maintenance activities, causing the canopy to fall on him or had another combat related event occurred, such as a simulated or actual rocket attack requiring him to dive for cover in the middle of the lifting procedure, causing him to injure his back, approval of CRSC may have been warranted.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant states that a mobility exercise does not include Combat Turning of aircraft.  Had the exercise been a mobility exercise, he would not have been required to launch the aircraft.  Manually raising the canopy is in fact an accepted maintenance practice in the event there is no hydraulic pressure to open the canopy.  His claim that he was required to perform this action manually to prevent the wing's likely failure of the Combat Turn is not exaggerated, nor is such a determination based upon someone's personal opinion.  While lifting is certainly normally considered an industrial hazard, applicant wonders how lifting an aircraft canopy during a Combat Turn is an industrial hazard.  He was injured during a Combat Turn and according to Attachment 1-1 of Public Law 107-314, he meets the mandatory criteria for CRSC.

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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.  Sufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  The applicant requests compensation under the CRSC program for his degenerative disc disease and for his right foot drop, which has been determined by the DVA to be secondary to his degenerative disc disease.  The applicant contends that his conditions are the result of an incident which occurred while raising a canopy on a military aircraft.  His request was denied by the CRSC board, which opined that his injuries do not qualify for CRSC because injuries incurred as a result of lifting do not meet the criteria to qualify for CRSC compensation.  The Board majority believes the decision to deny the applicant's request is based in part, on a misinterpretation of the guidance provided by Public Law 107-314.  The Board majority believes there is no question the aircraft canopy on a military aircraft fits the definition of an instrumentality of war, it is clear the disability was incurred during a period of service, and the disabilities are the result of an incident involving a military vehicle.  The Board majority believes in this particular case the CRSC board has misconstrued guidance to require the applicant to be faultless and for the instrumentality of war to be at fault.  It is the opinion of the Board majority that the applicant's injuries qualify for CRSC under the governing guidance.  Accordingly, the Board majority recommends his records be corrected as indicated below.

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THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that his service-connected medical conditions, degenerative disc disease, cervical spine, VASRD code 5293, with a compensable rating of 60 percent; and right foot drop, secondary to degenerative disc disease of the cervical spine, VASRD code 8520, with a compensable rating of 80 percent, was incurred as a direct result of an instrumentality of war and qualifies for compensation under the Combat Related Service Compensation Act.

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The following members of the Board considered Docket Number BC-2004-02282 in Executive Session on 12 Oct 05, under the provisions of AFI 36-2603:

By a majority vote, the Board voted to grant the request.  Mr. XXXXXXX voted to deny the request and elected not to submit a minority report.  The following documentary evidence was considered:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 18 Aug 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPD, dated 15 Jun 05.
    Exhibit D.  Letter, SAF/MRBR, dated 17 Jun 05.
    Exhibit E.  Letter, Applicant, dated 22 Jun 05.

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD FOR 
CORRECTION OF MILITARY RECORDS (AFBCMR)

FROM:  SAF/MR

SUBJECT:  AFBCMR Case on 

	I have carefully reviewed all of the circumstances of the applicant’s case and do not agree with the majority of the panel that the applicant's request for compensation under the Combat- Related Special Compensation (CRSC) Act should be approved.

	The Defense Authorization Act for Fiscal Year 2003, Public Law 107-314, authorized special compensation for certain combat related disabled uniformed service retirees.  In order to qualify for CRSC, an applicant must meet four preliminary criteria.  If the four preliminary criteria are met, then the applicant must meet the final criterion to qualify for CRSC; i.e., the disability be combat related.  To qualify as combat related the service-connected disability must be either: (1) attributable to an injury for which the Purple Heart was awarded; or (2) incurred as a direct result of armed conflict, while engaged in hazardous service, in the performance of duties under conditions simulating war, or through an instrumentality of war; as determined under criteria prescribed by the Secretary of Defense.  

The applicant contends that his service-connected disabilities, degenerative disc disease and right foot drop qualify for CRSC.  He states his injury was incurred when he was manually lifting an F-15 canopy during a combat training exercise.  The Board majority believes the applicant's service-connected conditions qualify for CRSC because they were incurred through an instrumentality of war.  The Board majority further believes the determination by the CRSC Board that his conditions do not qualify for CRSC was based on a misinterpretation of the governing guidance.  In the Board majority's opinion the injury was incurred during a period of service, the disability was the result of an accident involving a military vehicle, and since an F-15 fighter aircraft fits the definition of an instrumentality of war, compensation under the CRSC Act is warranted.  I agree that an F-15 aircraft may be considered as an instrumentality of war.  However, the determining factor in this case is the causal relationship between the instrumentality of war and the service-connected disabilities.  The Undersecretary of Defense established qualifying criteria which states that for a service-connected condition to qualify for CRSC compensation there must be a direct causal relationship between the instrumentality of war and the disability and that the disability must be incurred incident to a hazard or risk of the service.  Guidance further states the instrumentality of war must be intended for use of such 
service at the time of the occurrence of the injury.  The guidance provides an example which illustrates an injury incurred as the result of an activity by the individual, rather than having been caused by the instrumentality of war as the causal factor.  In this particular case, I do not believe that the act of manually lifting an aircraft canopy effectively establishes a causal relationship between the instrumentality of war and the injury.  Aircraft maintenance is not considered a hazard or risk of service under CRSC guidance. 

The applicant further argues that since his conditions were incurred while participating in a military training environment, his injuries qualify for compensation as having been incurred in the performance of duties under conditions simulating war.  CRSC guidance clearly states that simply having been incurred during a simulated exercise or training does not necessarily mean the particular condition qualifies for compensation.  

The applicant's conditions certainly qualify as service-connected under Department of Veterans' Affairs guidelines and it appears he is being duly compensated.  However, it is my opinion that compensation under the CRSC Act is not justified in this case.  Accordingly, it is my decision that the application be denied.