RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2007-01795
		INDEX CODE:  108.07
	XXXXXXXXXXXX	COUNSEL:  NONE
		HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  8 DECEMBER 2008

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APPLICANT REQUESTS THAT:

His service-connected medical conditions, spinal disc condition (lumbar) and spinal disc condition (cervical), be reevaluated and 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:

The decision rendered by the CRSC Board incorrectly interpreted and applied the definition for “instrumentality of war” and “in the performance of duty under conditions simulating war.”  At the time of his injuries, he was operating an All Terrain Vehicle (ATV) in support of Air Base Ground Defense operations.  He was operating the ATV in a simulated combat mode.  

In support of his request, applicant provides a personal statement, a copy of the CRSC decision and information from the CRSC website.  His complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

On 1 November 1997, after serving 20 years and 10 days of total active service, the applicant voluntarily retired from the Air Force in the grade of senior master sergeant.  

On 14 May 2007, the applicant’s request for CRSC for spinal disc condition (lumbar) and spinal disc condition (cervical) was disapproved 

Available Department of Veterans Affairs (DVA) records reflect a VA Rating Decision, dated 10 April 1998, with a combined compensable rating of 30% for his unfitting conditions.  

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AIR FORCE EVALUATION:

AFPC/DPPD recommends denial.  DPPD concedes that the applicant did injure his back and neck riding an ATV; however, they found no evidence to indicate the incident occurred while simulating war.  His service medical records do not state that he was riding an ATV during an ABGD course.  Furthermore, no line of duty determination, safety report or any other documentation showing this injury occurred during an ABGD course was found.  Therefore, the ATV cannot be considered an instrumentality of war because it is not a vehicle created solely for military purposes.  DPPD advises if the applicant can provide evidence this incident occurred during an ABGD course, he may provide this documentation to the CRSC board.   The DPPD complete 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 27 July 2007 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 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 Docket Number BC-2007-01795 in Executive Session on 2 November 2007, under the provisions of AFI 36-2603:

The following documentary evidence pertaining to Docket Number BC-2007-01795 was considered:

    Exhibit A.  DD Form 149, dated 31 May 2007, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPD, dated 11 July 2007.
    Exhibit D.  Letter, SAF/MRBR, dated 27 July 2007.