RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-03694 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: His service connected disability be re-evaluated under the Combat Related Special Compensation (CRSC) program. ________________________________________________________________ APPLICANT CONTENDS THAT: He was injured during a field training exercise with the 39th Security Forces Squadron. The squadron was conducting fire and maneuver exercises and team movement in the Victor loop training area when he stepped into a hole and twisted his greater right toe. He was transported to the hospital in a government vehicle/patrol car. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant retired 31 December 2003 in the grade of technical sergeant. A Department of Veterans Affairs (DVA) rating decision dated 7 May 2004 listed the applicant’s degenerative osteoarthritis, right great toe with mild bunion deformity as service-connected and granted a 10 percent evaluation for disability compensation. The remaining relevant facts pertaining to this application are contained in the letter prepared by the appropriate office of the Air Force which is at Exhibit B. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSDC recommends denial. The applicant submitted a claim for CRSC for his toe, hypertension, gastritis with ulcer and left shoulder which was disapproved on 25 February 2009. He requested reconsideration of the Board’s disapproval for his toe and that request was denied on 20 September 2010. There was no evidence provided to confirm the applicant’s disability was the direct result of an armed conflict, hazardous service, or due to an instrumentality of war or simulating war. The CRSC program was established to provide compensation to certain retirees with combat-related disabilities under Title 10 U.S.C, Section 1413a. If the veteran does not satisfy the preliminary CRSC criteria, no further consideration is required and the claim is denied. If the veteran satisfies the preliminary CRSC criteria, the claim is reviewed for combat-related determination. By law, there must be objective documentary evidence, and the military departments will determine whether a disability is combat- related under armed conflict, hazardous service, simulating war or instrumentality of war, using the definitions and criteria set forth. The DVA awards service connected disabilities based on their standards. They resolve doubt in the interest of the veteran and grant service connection for injuries or diseases incurred while in service. While service connection for disabilities is required for initial eligibility for CRSC consideration, CRSC criteria is more stringent and requires documentation to support a qualifying combat-related event as the direct cause of the disability. In his original claim and his request for reconsideration, the applicant stated he injured his toe during a training exercise. On the attached DD Form 149, Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code Section 1552, he states he stepped into a hole and twisted his toe during a field training exercise. He provided a medical document dated 27 September 1993 which reflects “twisted right toe when he stepped in hole.” By law, a determination as to whether a disability is combat related will be based on a preponderance of available documentary information. All relevant documentation is weighed in relation to known facts and circumstances and determinations are made on the basis of credible, objective documentary information in the records as distinguished from personal opinion, speculation, or conjecture. The fact that the member incurred a disability during a period of simulating war or in an area of simulated armed conflict or while participating in simulated operations is not sufficient by itself to support a combat-related determination. There must be a definite, documented, casual relationship between the simulated armed conflict and the resulting disability. In other words, just because the individual is injured during an exercise, that injury, is not automatically approvable for CRSC. An example of a potentially approvable simulating war scenario is: A member is portraying an escaping prisoner-of-war during an escape and evasion scenario while in survival training. Member is aggressively being pursued by the “enemy,” at night, while running through the forest. Member trips over a log and breaks his wrist. An example of a disapproved simulating war scenario is: A member is conducting perimeter patrol during an exercise, at night, when he trips in a rut on the road and breaks his wrist. While the applicant’s documentation confirms he injured his toe when he stepped into a hole, there is no confirmation an active combat exercise was the direct cause of his injury. The applicant’s condition does not meet the mandatory criteria for compensation under the CRSC program as outlined under the provisions of Title 10 U.S.C, Section 1413a. The documentation submitted does not confirm a combat related event was the cause of injury to his toe. The complete DPSDC evaluation is at Exhibit B. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant explains he was assigned to the 39th Security Forces Squadron; a unit that regularly conducted Operational Readiness Exercises. On 27 September 1993, around 0100, they were conducting night time operations. The scenario consisted of an enemy force, known as Op4, penetrating a section of the fence leading to the Airfield. Op4 was armed with heavy weapons and small arms. His team made contact with the enemy force and engaged the enemy or a fire started. The mission was to retake the area of operation from Op4, destroy or capture the enemy force and regain the Airfield. He was a squad leader and his squad consisted of three fire teams. They were armed with heavy weapons and small arms. They were conducting fire and maneuver exercises and team movements on the enemy position. They aggressively assaulted the enemy position using fire power and quick team movements. As he was firing and moving with one of his teams, he stepped into a hole and heard a loud crack. He did a quick visual of his team and everyone seemed fine. As he attempted to move with one of the fire teams he could not move his right foot. He looked down and his foot was in a hole. As soon as he realized his foot was in this hole, it seemed like it had its own heartbeat. He could not walk without a lot of pain, so he crawled to keep up with his fire teams. They destroyed the enemy and secured the installation. He was transported to the hospital from the training area in a government vehicle/patrol car. The applicant’s complete response is at Exhibit D. ________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file. 3. Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice. After a thorough review of the applicant’s submission, to include his response to the Air Force advisory and the evidence of record we do not find the applicant’s service-connected medical condition was the direct result of an armed conflict, while engaged in hazardous service, in the performance of duty under conditions simulating war, or through an instrumentality of war. The applicant contends that he was injured as he stepped in a hole while firing and moving. However, we do not find the applicant’s uncorroborated contention persuasive enough to override the position of the Air Force office of primary responsibility. As such, we adopt their rationale as the basis for our conclusion that the applicant’s condition does not meet the mandatory criteria for compensation under the CRSC program. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application. ________________________________________________________________ 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 AFBCMR Docket Number BC-2012-03694 in Executive Session on 16 May 2013, under the provisions of AFI 36-2603: Panel Chair Member Member The following documentary evidence pertaining to AFBCMR Docket Number BC-2012-03694 was considered: Exhibit A. DD Form 149, dated 30 Jul 12, w/atchs. Exhibit B. Letter, AFPC/DPSDC, dated 10 Sep 12, w/atchs. Exhibit C. Letter, SAF/MRBR, dated 25 Sep 12. Exhibit D. Letter, Applicant’s Response, dated 13 Oct 12.