RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-03641
            INDEX CODE:  108.07
            COUNSEL:  NONE

            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.  His service-connected  medical  conditions,  intevebral  disc  syndrome,
tinnitus, and nervous condition, be assessed as combat related in  order  to
qualify for compensation  under  the  Combat  Related  Special  Compensation
(CRSC) Act.

2.  Corrections be made to his Aircraft Accident Report.

_________________________________________________________________

APPLICANT CONTENDS THAT:

His application for CRSC benefits was disapproved  based  on  criteria  that
was not made known to him, to include provisions that simply cannot  and  do
not apply to his particular situation.  His injuries are the  result  of  an
accident in which he was a surviving crewmember  of  a  B-47  aircraft  that
crashed 70 miles from home base  on  January  12,  1961.   His  request  was
denied because it was a requirement that  a  commander  or  medical  officer
witness the injury.  The authenticity of  the  crash  is  available  from  a
multiplicity of records.  A spinal disc injury is  an  injury  that  is  not
visible to the naked eye, hence it  cannot  be  witnessed.   His  acute  and
chronic knee and leg pain he suffered  for  months  following  the  accident
were symptomatic of a severe back injury.  His nervous system  condition  is
a direct result of the aircraft accident.  His claims  are  based  upon  and
occurred during his 10  years  as  a  B-47  combat  crewmember.   Under  the
description of what constitutes  combat-related;  namely  while  engaged  in
hazardous (combat  simulated,  aerial  flight)  and  duty  under  conditions
simulating war (as was their 24 hour airborne alert operations).

In support of his request applicant provided a copy of his DD form 214,  his
retirement  order,  and  two  Officer  Effectiveness  Reports  (OERs).   His
complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

Applicant entered active duty on 9 Jan 51 and served in an  enlisted  status
until his commissioning on 20 Sep 57.  He served as a B-47 and  B-52  pilot.
On 12 Jan 61, applicant ejected out of a B-47 he was  co-piloting  when  the
aircraft developed uncorrectable control problems  at  approximately  15,700
feet.  He voluntarily retired for length of service on 1 Jul 71.  He  served
20 years, 5 months, and 22 days on active duty.

A Department of Veterans Affairs  (DVA)  rating  decision,  dated  4 Sep  97
reflects the applicant was rated at 60% for degenerative disc  disease,  30%
for headaches, and 10% for tinnitus, for a combined rating of 80%.

His CRSC application was disapproved on 20 Oct  03  based  on  the  evidence
submitted  with  the  application  as  not  supporting   approval   of   the
disabilities claimed as combat related under the established guidelines  for
CRSC.  The portion of his application in which he  claimed  tinnitus  as  an
eligible condition was approved with an effective date of 1  Jan  04  and  a
percentage of 10%.

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AIR FORCE EVALUATION:

AFPC/DPPD  recommends  denial.   DPPD  states  reviewing  medical   records,
aircraft accident reports and DVA  determinations,  the  evidence  indicates
that the applicant suffered only abrasions and contusions from  an  aircraft
ejection in January 1961 in which he landed on top of a tree  causing  minor
injuries.  The earliest evidence of his  Spinal  Disc  condition  was  noted
when he was diagnosed with osteoarthritis in September 1987, 16 years  after
his retirement.  He contends that even  though  he  suffered  pain,  he  was
never properly x-rayed or diagnosed for the injuries he sustained.  The  DVA
originally denied his claim for the  back  and  hip  conditions,  but  based
purely on speculation, it was  granted  to  his  benefit  with  no  specific
evidence and documentation.  The DVA conceded that  it  was  the  result  of
trauma experience following the ejection even though the  evidence  was  not
considered so evenly balanced, showing that  his  hip  and  back  conditions
were shown to be symptomatic many years following  his  retirement.   Having
reviewed his medical and personnel records,  and  documents  supporting  the
aircraft accident it appears that his injuries  are  not  considered  to  be
eligible for CRSC.  There is no documentation that he suffered  his  Nervous
Disorder other than an anxiety episode  a  couple  of  times  prior  to  his
scheduled flying.  He was not grounded or taken off of  flying  status.   He
claims his anxiety was accompanied by  chronic  migraine  headaches  due  to
stress after  flying  his  missions.   Though  he  complained  of  headaches
throughout his career, he had this problem during his  teenage  years  prior
to service.  Job related stress is not considered unique  to  the  military.
Therefore, his  Nervous  Disorder  is  not  eligible  for  CRSC.   The  DPPD
evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant states that he underwent major surgery on his left hip on  10  Jun
04.  The attending physician states  in  his  observations  that  the  "most
likely' event  that  could  possibly  have  precipitated,  exacerbated,  and
caused his  later  incapacitation  and  eventual  disablement  can  best  be
attributed to the severe, acute, and traumatic experience his body  incurred
at the time of impacting the tree  that  saved  his  life  in  1961."   This
authenticates  that  from  1961  to  2004  the  attending  physicians   have
faithfully recorded that the injuries sustained in  the  1961  ejection  are
the reason for five subsequent major operations.

In support of his response,  applicant  provided  a  personal  statement,  a
statement from his physician,  and  documents  extracted  from  his  medical
record.

In an amended response to the Air  Force  evaluation  applicant  states  the
Aircraft Accident Report  contains  errors  and  was  not  prepared  by  the
individual who performed the emergency parachute jump (himself) as  directed
by the form itself.  The narrative is written in third person  singular  and
signed by Major B--- (who  served  on  the  staff  of  the  2nd  Bombardment
Squadron).  He did not write the narrative and never saw  it  until  it  was
received during his various filings with the VA.  It  contains  many  errors
which, if corrected,  could  help  his  cause  significantly.   The  Medical
Report indicates that he "showed no anxiety."   What  it  doesn't  state  is
that he was in a state of "extreme  shock"...and  unable  to  reconcile  the
time of day within 7 hours on the day of the accident.  A comment  was  made
that no x-rays were taken.  Throughout the days following the accident,  and
in spite of his complaints of knee and leg pain there was never  an  attempt
to locate the source causing  such  pain.   Years  later,  the  problem  was
identified as a ruptured disc that dislodged  the  routing  of  his  sciatic
nerve to the point where the nerve physically was  looped  around  the  disc
and totally incapacitated him.  There is sufficient evidence in his  medical
record to directly connect his spinal disc condition to  the  accident  that
occurred while on a Combat Crew Training  Mission.   While  it  may  be  the
contention  of  the  DPPD  that  his  continued  flying  status  gives   the
indication that his injuries were not severe, he knows that the pain in  his
legs began within hours of the event and continued for the remainder of  his
military career and later.  He lived with the  pain,  which  was  unbearable
after each and every flight, lasting usually for upwards of  12  hours.   He
continued because he believed in serving in his  capacity  faithfully,  with
credibility, honor, and commitment.  Applicant takes exception to  the  DPPD
remark that the DVA originally  denied  his  claim  for  the  back  and  hip
conditions, but based purely on speculation, it was granted to  his  benefit
with no  specific  evidence  and  documentation.   He  has  been  intimately
involved with the DVA for years, and does  not  know  of  any  circumstances
regarding his health condition, in which an award or claim  was  based  upon
"no specific evidence and documentation."   On  the  contrary,  his  medical
file consists of hundreds of pages  along  with  a  considerable  amount  of
progress notes, medical reports, examinations,  and  interviews.   Regarding
his condition of nervous system, applicant states the problem  that  existed
before his accident was recurring "headaches."  Subsequent to the  accident,
anxiety with accompanying headaches began.

In support of his  submission,  applicant  provided  a  personal  statement,
documents extracted from his medical  records,  and  a  document  associated
with his CRSC application.

His complete submission, with attachments, is at Exhibit E.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

The BCMR Medical  Consultant  recommends  denial.   The  Medical  Consultant
states the applicant bailed out of  a  disabled  B-47  aircraft  in  January
1961.  His medical records show abrasions, bruising and knee pain  following
the incident.  There is a single service medical  record  entry  four  years
after the aircraft incident for low back  pain  diagnosed  as  paravertebral
muscle spasm.  There is  no  evidence  that  indicates  his  back  pain  was
related to the ejection or parachute landing.  His service records  show  he
was hospitalized in March 1951 for back pain due to lumbosacral  pain  while
digging a trench and he was hospitalized in June 1952 for  upper  back  pain
due to lifting shower boards in the barracks.   He  underwent  back  surgery
approximately 15 to 16 years after the incident.  Evidence  of  record  does
not support causal relationship.  It may be  reasonable  to  speculate  that
the incident may have contributed to his back  condition,  but  the  medical
record finds nothing to  support  this.   The  medical  record  documents  a
history of nervous condition prior to the January  1961  incident  and  only
two entries for anxiety following the incident indicating the condition  was
not significantly worsened.  He continued to fly bomber aircraft for  nearly
ten more years.  The fact that a member incurred  the  disability  during  a
military exercise or while participating in an exercise  is  not  sufficient
to support a combat-related determination.  There must be  a  direct  causal
relationship between the unique  aspects  of  the  exercise  (or  conditions
simulating war) and the disability.  The Medical  Consultant  Evaluation  is
at Exhibit F.

ODUSD(MPP)/Comp reviewed  the  applicant's  request  and  concurs  with  the
findings and recommendation of  the  BCMR  Medical  Consultant.   The  ODUSD
evaluation is at Exhibit G.

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APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Applicant states that the Medical Consultant bases a considerable amount  of
his evaluation  on  the  information  contained  in  the  aircraft  accident
report.  The information contained  in  the  aircraft  accident  report  was
prepared by an officer other than himself and was based entirely on  hearsay
information.  No place on the form can be found any collaboration  with  the
flight surgeon, medical examiner, or medical officer.  Certain parts of  the
form identify him as the navigator showing  there  was  an  apparent  mix-up
between the completion of the forms pertaining  to  himself  (co-pilot)  and
the navigator.  The applicant provides his  account  of  what  the  accident
report should state and adds the injuries he sustained in the B-47  ejection
fully qualifies him for CRSC.  The nervous condition  he  experienced  after
the  ejection,  continued  through  his  remaining  years  in  service,  was
identified by the DVA as service-connected.  Leg pain and knee pain  of  the
nature described are both symptomatic  of  a  back  injury  and  his  record
clearly documents these symptoms from the day of  the  ejection.   The  fact
that the medical record shows no direct evidence or connection of such  pain
with a back injury is not his fault.  It as an omission on the part  of  the
attending physicians who should have determined  from  his  frequent  visits
and complaints of such pain that the cause was due to sciatic  nerve  damage
(brought  on  by  spinal  disc  rupture).   He  continued  flying;  however,
subsequent to each and every mission, it took 12-24 hours  to  recover  from
the  pain  experienced  subsequent  to  the  missions.   He   provided   two
documents, which he believes should carry as much or more credibility,  than
that contained in  much  of  the  "history"  being  reviewed.   The  Medical
Consultant points out that on his retirement physical he did not mark  "YES'
to the question of "have you had, or have you now, nervous  trouble  of  any
sort" inferring that his claim for disability for  a  nervous  condition  is
without substance.  His medical records do  indicate  that  he  had  such  a
nervous condition so the obvious conclusion is that his answer  should  have
been YES.  This nervous condition  has  persisted  to  this  day,  has  been
addressed and helped through the  years  by  the  efforts  of  the  DVA  and
medication.  His complete submission, is at Exhibit I.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided  by  existing  law  or
regulations.

2.  The applicant requests changes  be  made  to  his  12  Jan  61  Aircraft
Accident Report.  His request  for  corrections  to  his  Aircraft  Accident
Report was  not  filed  within  three  years  after  the  alleged  error  or
injustice was discovered, or could have  been  discovered,  as  required  by
Section 1552, Title 10, United States Code (10  USC  1552),  and  Air  Force
Instruction 36-2603.  Although the applicant asserts  a  date  of  discovery
which would, if applicable,  make  the  application  timely,  the  essential
facts which give rise to the application were known to  the  applicant  long
before  the  asserted  date  of  discovery.   Knowledge   of   those   facts
constituted the date of  discovery  and  the  beginning  of  the  three-year
period for filing.  Thus, his request pertaining to  the  Aircraft  Accident
Report is untimely.   Paragraph  b  of  10  USC  1552  permits  us,  in  our
discretion, to excuse untimely filing in the interest of justice.   We  have
carefully reviewed applicant's submission and the entire record, and  we  do
not  find  a  sufficient  basis  to  excuse  the  untimely  filing  of  this
application.  The applicant has not shown a plausible reason  for  delay  in
filing, and we are not persuaded that the record raises issues of  error  or
injustice that require resolution on its merits.

3.  The applicant's request pertaining to his  service-connected  conditions
is timely filed.

4.  Insufficient relevant evidence has been  presented  to  demonstrate  the
existence of error or  injustice  with  respect  to  his  request  that  his
service-connected medical conditions  qualify  for  compensation  under  the
CRSC Act.  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 opinions and recommendations of the Air Force  offices  of  primary
responsibility 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 persuasive evidence to the contrary, we  find  no  compelling
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-2003-
03641 in Executive Session on 6 Oct 04, under  the  provisions  of  AFI  36-
2603:

      Mr. Thomas S. Markiewicz, Chair
      Mr. Michael V. Barbino, Member
      Ms. Martha A. Maust, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 27 Oct 03, w/.atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPD, dated 26 Jan 04.
    Exhibit D.  Letter, SAF/MRBR, dated 6 Feb 04.
    Exhibit E.  Letter, Applicant, dated 10 Feb 04, w/atchs.
    Exhibit F.  Letter, BCMR Medical Consultant, dated 24 Feb 04.
    Exhibit G.  Letter, ODUSD(MPP)/Comp, dated 21 Jul 04.
    Exhibit H.  Letter, SAF/MRBC, dated 28 Jul 04.
    Exhibit I.  Letter, Applicant, dated 12 Aug 04, w/atchs




                                   THOMAS S. MARKIEWICZ
                                   Chair