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

_________________________________________________________________

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.

_________________________________________________________________

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.
_________________________________________________________________

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.

_________________________________________________________________



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.

_________________________________________________________________

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.

_________________________________________________________________

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.

_________________________________________________________________

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.

_________________________________________________________________

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:

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



By a majority vote, the Board voted to grant  the  request.   Mr. Russell
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.




                             THOMAS S. MARKIEWICZ
                                             Chair
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.




                                        MICHAEL L. DOMINGUEZ
                                        Assistant Secretary of the Air
Force
                                        (Manpower and Reserve Affairs)