RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2007-03664 INDEX CODE: 108.00 COUNSEL: XXXXXXXXXXX HEARING DESIRED: YES ________________________________________________________________ _ APPLICANT REQUESTS THAT: His disability retirement be corrected to show that his medical condition was “the direct result of armed conflict or was caused by an instrumentality of war and incurred in the line of duty during a period of war," or was “the direct result of a combat related injury.” ________________________________________________________________ _ APPLICANT CONTENDS THAT: He was ordered to active duty “during a period of war” in support of Operation IRAQI FREEDOM. He was deployed outside the United States on a mission (flight) to Kuwait International Airport as a C-5 Flight Engineer. He was serving in a geographic location that qualified him to receive Hostile Fire Special Pay and for the Combat Zone Tax Exclusion under the Internal Revenue Service Code. His case is similar to cases involving medical personnel deployed (outside Iraq) who are receiving and treating wounded soldiers arriving directly from the theater of operations. When those medical personnel are injured while transporting, lifting, carrying, or treating injured soldiers, the PEB has consistently found their injuries to be “the direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a period of war” or “the direct result of a combat related injury.” The Physical Evaluation Board erroneously failed to find his chronic bilateral shoulder pain, status-post failed rotator cuff repairs, was “the direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a period of war” or was “the direct result of a combat related injury.” In support of his request, applicant provided a copy of his AF Form 356, Findings and Recommended Disposition of USAF Physical Evaluation Board, his Retirement Order, DD Form 214, Certificate of Release or Discharge from Active Duty, Active Duty Orders, Flight Orders, documents pertaining to his receipt of Hostile Fire Pay, flight crew billeting documents, medical records, witness statements, copies of the Informal Line of Duty Determinations, and a copy of the MEB Narrative Report. The applicant's complete submission, with attachments, is at Exhibit A. ________________________________________________________________ _ STATEMENT OF FACTS: The applicant, formerly a master sergeant and flight engineer in the Air Force Reserve, was ordered to an MPA tour (active duty) for 139 days, in his primary specialty as a 1A171 Flight Engineer, in support of Operation IRAQI FREEDOM. On 10 Nov 03, he departed from Lackland AFB, TX, to Kuwait International Airport. The applicant’s C-5 was returning to Lackland AFB, TX on 15 Nov 03 when it was diverted to RAF Mildenhall because of severe weather. While unloading 75 pound bags containing chemical warfare equipment from the C-5, he lost his balance and fell approximately eight feet from a ladder in the parked aircraft. He suffered injuries to both shoulders which eventually required a total of seven surgeries. The Informal Physical Evaluation Board (IPEB) reviewed applicant’s medical board on 29 Sep 06, and recommended he be permanently retired with a 50 percent disability rating for his chronic bilateral shoulder pain and chronic low back pain. The IPEB did not find that his injuries were the direct result of armed conflict or caused by an instrumentality of war, or that they were the direct result of a combat related injury. On 3 Oct 06, applicant concurred with the IPEB’s findings and recommendations, and waived his right to have a Formal Physical Evaluation Board (FPEB) evaluate his case. He was permanently retired on 7 Nov 06. ________________________________________________________________ _ AIR FORCE EVALUATION: HQ AFPC/DPSD recommends denial. DPSD states the preponderance of evidence reflects that no error or injustice occurred during the disability process or at the time of retirement. The Medical Board determined that this incident for the purpose of unloading a parked aircraft was not found to be an instrumentality of war and his injury was not a direct result of armed conflict or determined to be combat related. Air Force Instruction 36-3212, Section 3.27.21, states: “Combat- Related” – The IPEB will make a combat-related disability determination for: Armed Conflict, Extra Hazardous Service, Conditions Simulating War and Instrumentality of War. The complete DPSD evaluation is at Exhibit B. HQ AFPC/JA recommends denial. JA states to obtain relief, the applicant must show by a preponderance of the evidence there exists some error or injustice warranting corrective action by the Board. The United States Claims Court has repeatedly defined an injustice in the context of BCMR cases as “treatment by military authorities that shocks the sense of justice.” The Department of Defense Instruction (DODI) governing disability benefits to service members provides the following definitions for making the “combat related,” “armed conflict,” and “instrumentality of war” determinations: Combat Related: This standard covers those injuries and diseases attributable to the special dangers associated with armed conflict or the preparation or training for armed conflict. A physical disability shall be considered combat- related if it makes the member unfit or contributes to unfitness and was incurred under any of the following circumstances: 1) As a direct result of armed conflict; 2) While engaged in hazardous service; 3) Under circumstances simulating war; or 4) Caused by an instrumentality of war. Armed Conflict: The physical disability is a disease or injury incurred in the line of duty as a direct result of armed conflict. The fact that a member may have incurred a disability during a period of war, or in an area of armed conflict, or while participating in combat operations is not sufficient to support this finding. There must be a definite causal relationship between the armed conflict and the resulting unfitting disability. Instrumentality of War: A vehicle, vessel or device designed primarily for military service and intended for use in such Service at the time of the occurrence of the injury. It may also be a vehicle, vessel, or device not designed primarily for Military Service if use of or occurrence involving such a vehicle, vessel, or device subjects the individual to a hazard peculiar to Military Service. This use or occurrence differs from the use or occurrence under similar circumstances in civilian pursuits. There must be a direct causal relationship between the use of the instrumentality of war and the disability, and the disability must be incurred incident to a hazard or risk of the service. There is no question the applicant’s injuries occurred during a period of war while he was returning from a mission in support of military operations in Southwest Asia. However, under DODI 1332.38, the location of where the applicant’s injuries occurred – in this case England while traveling back to the United States – is clearly not a basis for determining his disability was combat related or a direct result of armed conflict. Designating a disability such as the applicant’s as being the direct result of a combat related injury or the direct result of armed conflict when it occurred in the Suffolk countryside where RAF Mildenhall is situated exceeds the DODI’s unambiguous intent to limit these classifications to those service members who were injured while directly experiencing the hazards of combat. Additionally, the applicant’s disability cannot be attributed to an instrumentality of war. In this case, attempting to remove bags containing chemical warfare equipment from the C-5 did not expose the applicant to harm by the operation of the aircraft itself. Instead, the evidence contained in the applicant’s records establishes his injuries occurred when he lost his balance on a ladder inside a parked aircraft. Put another way, the applicant’s shoulder injuries were not a consequence of a “hazard peculiar to Military Service” as contemplated in the DODI. The applicant made a voluntary decision to forgo his opportunity to contest the IPEB’s findings on this issue. The law on this issue is well-established – no member of the armed forces may be separated for physical disability without a formal hearing if the member demands one. By signing the form acknowledging that he had received counseling and recognized the IPEB’s findings, the applicant certified that he understood his options and agreed to accept the IPEB’s administrative findings on whether his disability was combat related, a direct result of armed conflict, or caused by an instrumentality of war. This waiver serves as an intentional relinquishment of his rights to contest the IPEB’s administrative findings and there is no reason to doubt its legal efficacy in this case. The complete JA evaluation is at Exhibit C. ________________________________________________________________ _ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: On 22 Feb 08, copies of the Air Force evaluations were forwarded to the applicant for review and comment within 30 days. To date, a response has not been received. ________________________________________________________________ _ 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 condition the applicant believes is combat-related was 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, does not qualify for compensation under the Combat Related Special Compensation (CRSC) Act. We agree with the opinion and recommendation of the Air Force office of primary responsibility and in particular AFPC/JA, 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. 4. The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved. Therefore, the request for a hearing is not favorably considered. ________________________________________________________________ _ 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. ________________________________________________________________ _ The following members of the Board considered Docket Number BC-2007-03664 in Executive Session on 4 Aug 08, under the provisions of AFI 36-2603: The following documentary evidence pertaining to Docket Number BC-2007-03664 was considered: Exhibit A. DD Form 149, dated 5 Sep 07, w/atchs. Exhibit B. Letter, AFPC/DPSD, dated 24 Jan 08. Exhibit C. Letter, AFPC/JA, dated 12 Feb 08. Exhibit D. Letter, SAF/MRBR, dated 22 Feb 08.