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AF | BCMR | CY2005 | BC-2003-03631
Original file (BC-2003-03631.DOC) Auto-classification: Denied

                            RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-03631
            INDEX CODE:  108.07
            COUNSEL:  NONE

            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His  service-connected  medical  conditions  degenerative  joint  and   disc
disease of the cervical and lumbar spine and adenocarcinoma of the  prostate
be assessed as combat related in order to  qualify  for  compensation  under
the Combat Related Special Compensation (CRSC) Act.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Applicant makes no contentions.

In support of his request, applicant provided documentation associated  with
his Department of Veterans Affairs (DVA)  ratings  decision.   His  complete
submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

After serving in the National Guard in an  enlisted  status,  applicant  was
appointed a second  lieutenant,  Army  Air  Corps  on  25 Apr  43.   He  was
progressively promoted to the permanent grade of lieutenant colonel,  having
assumed that grade effective and with a date of rank of 12 Jul  57.   On  30
Sep 67, he was retired for length of service.  His record was  corrected  as
a result of AFBCMR action to show that he was retired by reason of  physical
disability with a diagnosis of cervical disc disease, with  limited  motion,
recurrent spasms, and poor grip of left hand,  with  a  combined  rating  of
50%.  He served 25 years and 9 days on active duty

His CRSC application was disapproved on 4 Sep 03.   However,  subsequent  to
the changes  to  Public  Law  107-314,  his  application  was  approved  for
Malignant Growth Genitourinary, Agent  Orange  presumptive,  rated  at  30%.
His spinal disc condition was determined not to be  combat-related.   On  17
Nov 04, based on  the  Medical  Consultant's  determination  concerning  his
degenerative joint disease/degenerative disc disease of the cervical  spine,
his  CRSC  determination  was  amended   to   include   degenerative   joint
disease/degenerative disc disease of the cervical spine, rated at 40%.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPD recommends  denial.   DPPD  states  evidence  submitted  with  his
application does  not  support  approval  of  his  disabilities  as  combat-
related, due to an instrumentality of war, or  hazardous  service.   He  was
treated for Spinal  Disc  Conditions  and  it  was  determined  by  Physical
Evaluation Board that it was the result of his jumping dating back to  1953.
 The PEB found him physically fit  for  continued  service  but  the  AFBCMR
overturned this decision and granted  him  disability  retirement,  but  not
considered to be combat-related.

The DPPD evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 20  Feb
04 for review and comment within 30 days.  As of this date, this office  has
received no response.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

The BCMR Medical Consultant recommends his records be corrected  to  reflect
his service connected  degenerative  joint  disease  and  degenerative  disc
disease of the cervical spine (not the  lumbar  spine)  are  combat-related.
The Medical Consultant states records support a  conclusion  that  his  neck
condition was directly caused by hazardous duty.  There is  no  evidence  to
support a relationship of his back condition to combat or  other  qualifying
conditions.   He  participated  in  parachute  duty,  which  is  listed   as
hazardous service, and injured his  neck  in  1966  while  participating  in
parachute duty.  The Medical Consultant Evaluation is at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

A copy  of  the  additional  Air  Force  evaluation  was  forwarded  to  the
applicant on 19 Oct 04 for review and comment within 30 days.   As  of  this
date, this office has received no response.

_________________________________________________________________


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  with  exception  to   his
degenerative joint disease/degenerative disc disease of the cervical  spine,
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
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-
03631 in Executive Session on 14 Dec 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 23 Oct 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPD, dated 4 Feb 04.
    Exhibit D.  Letter, SAF/MRBR, dated 20 Feb 04.
    Exhibit E.  Letter, BCMR Medical Consultant, dated 9 Aug 04.
    Exhibit F.  Letter, SAF/MRBC, dated 19 Oct 04.




                                   THOMAS S. MARKIEWICZ
                                   Chair

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