RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-02645
            INDEX CODE:  108.07
            COUNSEL:  NONE
            HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  28 Feb 06

_________________________________________________________________

APPLICANT REQUESTS THAT:

His service-connected medical  conditions,  degenerative  disc  disease  and
right foot drop, 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 incurred while manually lifting an aircraft canopy  during
simulated combat operations.  He was required by the exercise to prepare  an
aircraft for launch within the time constraints  dictated  by  the  mission.
On the day of the injury, had it  not  been  for  the  time  constraints  he
perhaps would have requested a hydraulic cart to  apply  hydraulic  pressure
to the aircraft and would have raised the canopy without  injuring  himself.
The simulated combat environment, time constraints of the Combat  Turn,  the
broken original aircraft, the lack of other  maintenance  personnel  readily
available, and the desire to accomplish the mission all contributed  to  his
injury.  The only thing within his control was the desire to accomplish  the
mission in a timely manner.

In support of his request,  applicant  provided  a  personal  statement  and
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  15
Nov 78.  He was progressively promoted to the grade of  technical  sergeant,
having assumed that grade effective and with a date of rank  of  1  Dec  89.
He  served  as  an  Aircraft  Weapons  Specialist  and  a  Computer  Systems
Operator.  He voluntarily retired from the Air Force on 30  Nov  98,  having
served 20 years and 16 days on active duty.

Available Department of Veterans Affairs (DVA) records  reflect  a  combined
compensable rating of 100% for his unfitting conditions.

His CRSC application was disapproved on 12 Dec 03 and 22 Jul 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  documentation  in  his  service
medical record does confirm he injured his back lifting an aircraft  canopy;
however, no evidence was submitted to confirm  he  was  participating  in  a
mobility exercise at the time of the injury.  His records  indicate  he  was
treated periodically throughout his career for low  back  pain  and  strain.
The cause of these subsequent incidents is not clear  except  for  an  entry
dated 30 Mar 98 for low back pain after moving furniture.

The issue at hand is whether the act of lifting an aircraft canopy  manually
is considered combat related.  Injuries  from  lifting  are  not  unique  to
military service or  to  combat  situations;  therefore  they  are  normally
considered to be industrial hazards rather  than  combat  related  injuries.
He indicated he knew of the hydraulic malfunction before lifting the  canopy
and options were available to him such as using a  hydraulic  cart  to  lift
the  canopy  that  would  have  prevented  the  injury.   While   heightened
excitement and increased operations tempo clearly exist  during  a  mobility
exercise, maintenance procedures and  inspections  issues  emphasize  safety
awareness and injury prevention.  His claim that he was required to  perform
this action to prevent the "likely" failure of the mobility  exercise  seems
somewhat  exaggerated.   Had  the  canopy  hydraulics  failed   during   his
maintenance activities, causing the canopy to fall on  him  or  had  another
combat related event occurred, such as a simulated or actual  rocket  attack
requiring him to dive for cover in the  middle  of  the  lifting  procedure,
causing him to injure his back, approval of CRSC may have been warranted.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant states that a mobility exercise does not  include  Combat  Turning
of aircraft.  Had the exercise been a mobility exercise, he would  not  have
been required to launch the aircraft.  Manually raising  the  canopy  is  in
fact an accepted maintenance practice in the event  there  is  no  hydraulic
pressure to open the canopy.  His claim that  he  was  required  to  perform
this action manually to prevent the wing's  likely  failure  of  the  Combat
Turn is not exaggerated, nor is such a determination  based  upon  someone's
personal  opinion.   While  lifting  is  certainly  normally  considered  an
industrial hazard, applicant wonders how lifting an aircraft  canopy  during
a Combat Turn is an industrial hazard.  He was injured during a Combat  Turn
and according to  Attachment  1-1  of  Public  Law  107-314,  he  meets  the
mandatory criteria for CRSC.

_________________________________________________________________

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 and for  his  right  foot
drop, which  has  been  determined  by  the  DVA  to  be  secondary  to  his
degenerative disc disease.  The applicant contends that his  conditions  are
the result of an incident  which  occurred  while  raising  a  canopy  on  a
military aircraft.  His request was denied by the CRSC board,  which  opined
that his injuries do not qualify for CRSC because  injuries  incurred  as  a
result  of  lifting  do  not  meet  the  criteria  to   qualify   for   CRSC
compensation.   The  Board  majority  believes  the  decision  to  deny  the
applicant's request  is  based  in  part,  on  a  misinterpretation  of  the
guidance provided by Public Law 107-314.  The Board majority believes  there
is no  question  the  aircraft  canopy  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 incident 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  5293,
with a compensable rating of 60 percent; and right foot drop,  secondary  to
degenerative disc disease of the cervical spine, VASRD  code  8520,  with  a
compensable rating of 80 percent, was incurred as  a  direct  result  of  an
instrumentality of war and  qualifies  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 12 Oct 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:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 18 Aug 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPD, dated 15 Jun 05.
    Exhibit D.  Letter, SAF/MRBR, dated 17 Jun 05.
    Exhibit E.  Letter, Applicant, dated 22 Jun 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 the applicant's
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 disc disease and right foot drop qualify for CRSC.  He states
his injury was incurred when he was manually lifting an F-15 canopy during
a combat training exercise.  The Board majority believes the applicant's
service-connected conditions qualify for CRSC because they were incurred
through an instrumentality of war.  The Board majority further believes the
determination by the CRSC Board that his conditions do not qualify for CRSC
was based on a 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 an F-15 fighter aircraft fits the definition of an instrumentality of
war, compensation under the CRSC Act is warranted.  I agree that an F-15
aircraft may be considered as 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 the act of manually lifting an aircraft canopy effectively
establishes 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 further argues that since his conditions were incurred
while participating in a military training environment, his injuries
qualify for compensation as having been incurred in the performance of
duties under conditions simulating war.  CRSC guidance clearly states that
simply having been incurred during a simulated exercise or training does
not necessarily mean the particular condition qualifies for compensation.


      The applicant's conditions certainly qualify as service-connected
under Department of Veterans' Affairs guidelines and it appears he is being
duly compensated.  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)