RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-02060
            INDEX CODE:  108.07
            COUNSEL:  NONE
            HEARING DESIRED:  NO

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MANDATORY CASE COMPLETION DATE:  3 Jan 06

APPLICANT REQUESTS THAT:

His  service-connected  medical  conditions,  degenerative   arthritis   and
limited motion of arm 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 incurred when  he  fell  off  a  ladder  entering  a  B-29
aircraft.  On a cool, dark, rainy morning he was  entering  the  cockpit  by
way of the outside ladder.  At the top rung, 17 feet  from  the  tarmac,  he
lost his hold of the ladder and fell to the tarmac.  He landed flat  on  his
back.  Actual damage to his back was damage to two  spinal  discs,  L-5/S-1.
His related arthritic condition has continued to this day  and  worsened  to
an  assignment  of  100%  disability.   Applicant  believes  there   is   no
difference between falling upon entry into the aircraft  and  ejecting  from
an  F-16.   From  the  time  of  pre-flights  until  exiting  upon   mission
completion, the period is performed under operational conditions.

In support of his request, applicant provided several  personal  statements,
and  documents  associated  with  his  CRSC   application.    His   complete
submission, with attachments, is at Exhibit A.
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STATEMENT OF FACTS:

Applicant entered active duty on 27 Mar 43 and was commissioned  on  23  Oct
43.  He was progressively promoted to the grade of colonel.  He served as  a
pilot aboard a variety of aircraft including the B-29, F-80  and  T-33,  and
in a variety of command and staff positions.  He  voluntarily  retired  from
the Air Force on 30 Jun 72, having served 29 years, 3 months, and 4 days  on
active duty.

Available Department of Veterans Affairs (DVA) records  reflect  a  combined
compensable rating of 90% for his unfitting conditions.

His CRSC application was disapproved on 23 Apr 04 based upon the  fact  that
his service-connected medical condition was determined  not  to  be  combat-
related.  Upon reevaluation of his CRSC  application  his  impaired  hearing
and tinnitus were approved, rated at 10% each.

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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 limited  motion  of  arm
are not combat related.  Injuries sustained by falling off a ladder  from  a
B-29 are not considered to be eligible for CRSC.

The DPPD evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on  6  Aug
04 for review and comment within 30 days.  As of this date, this office  has
received no response.

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ADDITIONAL AIR FORCE EVALUATION:

AFPC/DPPD provided an additional advisory recommending denial.  DPPD  states
to award compensation, the fall itself must have been the direct  result  of
some unique combat related factor,  rather  than  routine  causes  or  human
error on part of the applicant.  The provisions of  armed  conflict  do  not
apply in this case because he was not involved in  a  war  or  any  type  of
conflict at the time and no combat related event (such as  concussion  of  a
bomb blast) caused the fall.  Injuries  related  to  hazardous  service  are
considered to occur between take-off and  landing  the  aircraft.   Injuries
occurring while performing duties or training activities which mirror  those
performed during actual combat would warrant compensation  if  there  was  a
direct causal relationship between  the  training  and  the  injury  itself.
Merely sustaining an injury during military training  without  participation
in  combat  simulation  activity   is   not   considered   combat   related.
Instrumentality of war involves injuries that are the  direct  result  of  a
military weapon, accidents  involving  a  military  combat  vehicle,  fumes,
gases, or explosion of military ordinance, vehicles, or materials.  To  make
the determination that an injury resulted from an  instrumentality  of  war,
there must have been a malfunction in the aircraft itself  that  caused  the
injury or that he was struck by the aircraft.   By  his  own  statement,  he
fell from a ladder.  Since the aircraft did not malfunction and he  was  not
struck  by  the  aircraft,   his   injury   cannot   be   classified   under
instrumentality of war.  The DPPD evaluation is at Exhibit E.

The BCMR Medical  Consultant  recommends  denial.   The  Medical  Consultant
states his service medical records document a fall off a  B-24  aircraft  in
November 1944 resulting in a bruise of the left shoulder  blade.   One  year
later his records document a complaint of low back  pain  since  that  fall.
That incident is not sufficient to explain  his  subsequent  development  of
his service connected conditions.  There is no primary documentation of  the
incident in which he claims he fell off a B-29, 17 feet to  the  tarmac.   A
subsequent 17 Apr 51 medical appointment refers to a wrist  injury  incurred
in a fall off a B-29 in April 1949 onto outstretched hands.  At the time  of
his  retirement  physical  examination  in  February  1972,  complaints   of
shoulder, elbow and back pain are attributed to the 1949  fall  reported  by
the applicant.  The appearance of his degenerative  disc  disease  at  L5-S1
reported in 1972 is consistent with that seen in non-traumatic  degenerative
disc disease commonly seen in men at that age (47).  X-rays taken  23  years
after the reported fall did not show radiographic evidence  of  a  traumatic
injury.  X-rays of  the  left  shoulder  and  wrist  likewise  were  without
evidence of sequela  of  a  traumatic  injury.   The  pattern  of  arthritis
documented in the records is consistent with types, which  develop  commonly
in a large number of individuals in the absence of trauma.

The Medical Consultant Evaluation is at Exhibit F.

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APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Copies of the  additional  Air  Force  evaluations  were  forwarded  to  the
applicant on 29 Apr 05 for review and comment within 30 days.   As  of  this
date, this office has received no response.

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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.  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
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.

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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.

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The following members of the Board considered AFBCMR Docket Number  BC-2004-
02060 in Executive Session on 26 Jul 05, under the  provisions  of  AFI  36-
2603:

      Mr. Thomas S. Markiewicz, Chair
      Mr. James W. Russell III, Member
      Mr. Christopher Carey, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 20 Jun 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPD, dated 30 Jul 04, w/atchs.
    Exhibit D.  Letter, SAF/MRBR, dated 6 Aug 04.
    Exhibit E.  Letter, AFPC/DPPD, dated 27 Apr 05.
    Exhibit F.  Letter, BCMR Medical Consultant, dated 28 Apr 05.
    Exhibit G.  Letter, SAF/MRBC, dated 29 Apr 05.
    Exhibit H.  Congressional Inquiry, dated 8 Dec 04, w/atchs.




                                   THOMAS S. MARKIEWICZ
                                   Chair