RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-02282
		INDEX CODE:  108.07
		COUNSEL:  NONE
		HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  25 Jan 06

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APPLICANT REQUESTS THAT:

His service-connected medical conditions, degenerative arthritis and condition of the skeletal system, 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 caused while working on an F-111 aircraft, an instrumentality of war.  While working at night on a valve in the wheel well of the F-111, unbeknownst to him the weapons crew had attached a bomb rack to the aircraft pylon.  As he exited the wheel well to retrieve a tool from his toolbox, he hit his head on the bottom of the bomb rack.

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:

Applicant contracted his initial enlistment in the Regular Air Force on 10 Jan 73.  He was progressively promoted to the grade of master sergeant, having assumed that grade effective and with a date of rank of 1 Nov 89.  He served as an Electro-Environmental Technician.  He voluntarily retired from the Air Force on 31 Jul 96, having served 23 years, 6 months, and 21 days on active duty.

Available Department of Veterans Affairs (DVA) records reflect a combined compensable rating of 60% for his unfitting conditions.  

His CRSC application was disapproved on 6 Apr 04 and 21 Jun 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 a review of his service and DVA medical records show his degenerative arthritis and condition of skeletal system are not combat related.  He claimed he received his injuries when he hit his head on a bomb rack and that the bomb rack itself did not fall on him.  This mishap is not combat related.

The DPPD evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant states that the law does not state the device has to cause the injury by malfunctioning, and he was working on the aircraft because it had an in-flight malfunction.  There are dangers when working on fighter aircraft.  These dangers include explosive cartridges, liquid oxygen, bombs, bullets, missiles, sharp objects, hot surfaces etc.  If the bomb rack had not been attached to the aircraft, he would not have injured his neck.  His medical records contain an entry which states "Patient hit his head on airplane" and indicates an in-the-line of duty injury with repeated visits throughout the years, including after retirement.

His complete response is at Exhibit E.

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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, cervical spine; and his right shoulder condition, which has been determined by the DVA to be secondary to his neck injury.  The applicant contends that his conditions are the result of an incident in which he struck his head on a bomb rack while working on a military aircraft.  His request was denied by the CRSC board, which opined that his conditions do not qualify for CRSC because "the bomb rack itself did not fall on member's head."  The Board majority believes the decision to deny the applicant's request is based on a misinterpretation of the guidance provided by Public Law 107-314.  The Board majority believes there is no question the bomb rack 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 accident 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 5290, with a compensable rating of 30 percent; and right shoulder condition, secondary to degenerative disc disease of the cervical spine, VASRD code 5201, with a compensable rating of 20 percent, were incurred as a direct result of an instrumentality of war and qualify 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 26 Jul 05, under the provisions of AFI 36-2603:

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

    Exhibit A.  DD Form 149, dated 15 Jul 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPD, dated 1 Dec 04.
    Exhibit D.  Letter, SAF/MRBR, dated 10 Dec 04.
    Exhibit E.  Letter, Applicant, dated 2 Jan 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 his 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 arthritis and condition of the skeletal system qualify for CRSC.  He states his injury was incurred when he hit his head on a bomb rack that was attached unbeknownst to him onto an F-111 aircraft.  The Board majority believes the applicant's service-connected conditions qualify for CRSC as having been incurred through an instrumentality of war.  The Board majority believes the determination by the CRSC Board that his conditions do not qualify for CRSC was based on 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 a bomb rack attached to an F-111 aircraft fits the definition of an instrumentality of war, compensation under the CRSC Act is warranted.  I agree that a bomb rack attached to a military aircraft may be considered 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 hitting one's head on an instrumentality of war, while performing maintenance, constitutes 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's conditions certainly qualify as service-connected under Department of Veterans' Affairs guidelines.  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.