RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2007-03664
		INDEX CODE:  108.00
		COUNSEL:  XXXXXXXXXXX

		HEARING DESIRED:  YES


________________________________________________________________
_

APPLICANT REQUESTS THAT:

His disability retirement be corrected to show that his medical 
condition was “the direct result of armed conflict or was caused 
by an instrumentality of war and incurred in the line of duty 
during a period of war," or was “the direct result of a combat 
related injury.”

________________________________________________________________
_

APPLICANT CONTENDS THAT:

He was ordered to active duty “during a period of war” in 
support of Operation IRAQI FREEDOM.  He was deployed outside the 
United States on a mission (flight) to Kuwait International 
Airport as a C-5 Flight Engineer.  He was serving in a 
geographic location that qualified him to receive Hostile Fire 
Special Pay and for the Combat Zone Tax Exclusion under the 
Internal Revenue Service Code.  

His case is similar to cases involving medical personnel 
deployed (outside Iraq) who are receiving and treating wounded 
soldiers arriving directly from the theater of operations.  When 
those medical personnel are injured while transporting, lifting, 
carrying, or treating injured soldiers, the PEB has consistently 
found their injuries to be “the direct result of armed conflict 
or caused by an instrumentality of war and incurred in the line 
of duty during a period of war” or “the direct result of a 
combat related injury.”

The Physical Evaluation Board erroneously failed to find his 
chronic bilateral shoulder pain, status-post failed rotator cuff 
repairs, was “the direct result of armed conflict or caused by 
an instrumentality of war and incurred in the line of duty 
during a period of war” or was “the direct result of a combat 
related injury.” 

In support of his request, applicant provided a copy of his AF 
Form 356, Findings and Recommended Disposition of USAF Physical 
Evaluation Board, his Retirement Order, DD Form 214, Certificate 
of Release or Discharge from Active Duty, Active Duty Orders, 
Flight Orders, documents pertaining to his receipt of Hostile 
Fire Pay, flight crew billeting documents, medical records, 
witness statements, copies of the Informal Line of Duty 
Determinations, and a copy of the MEB Narrative Report.

The applicant's complete submission, with attachments, is at 
Exhibit A.

________________________________________________________________
_

STATEMENT OF FACTS:

The applicant, formerly a master sergeant and flight engineer in 
the Air Force Reserve, was ordered to an MPA tour (active duty) 
for 139 days, in his primary specialty as a 1A171 Flight 
Engineer, in support of Operation IRAQI FREEDOM.  On 10 Nov 03, 
he departed from Lackland AFB, TX, to Kuwait International 
Airport.  The applicant’s C-5 was returning to Lackland AFB, TX 
on 15 Nov 03 when it was diverted to RAF Mildenhall because of 
severe weather.  While unloading 75 pound bags containing 
chemical warfare equipment from the C-5, he lost his balance and 
fell approximately eight feet from a ladder in the parked 
aircraft.  He suffered injuries to both shoulders which 
eventually required a total of seven surgeries.

The Informal Physical Evaluation Board (IPEB) reviewed 
applicant’s medical board on 29 Sep 06, and recommended he be 
permanently retired with a 50 percent disability rating for his 
chronic bilateral shoulder pain and chronic low back pain.  The 
IPEB did not find that his injuries were the direct result of 
armed conflict or caused by an instrumentality of war, or that 
they were the direct result of a combat related injury.  On 3 
Oct 06, applicant concurred with the IPEB’s findings and 
recommendations, and waived his right to have a Formal Physical 
Evaluation Board (FPEB) evaluate his case.  He was permanently 
retired on 7 Nov 06.

________________________________________________________________
_

AIR FORCE EVALUATION:

HQ AFPC/DPSD recommends denial.  DPSD states the preponderance 
of evidence reflects that no error or injustice occurred during 
the disability process or at the time of retirement.

The Medical Board determined that this incident for the purpose 
of unloading a parked aircraft was not found to be an 
instrumentality of war and his injury was not a direct result of 
armed conflict or determined to be combat related.   

Air Force Instruction 36-3212, Section 3.27.21, states: “Combat-
Related” – The IPEB will make a combat-related disability 
determination for:  Armed Conflict, Extra Hazardous Service, 
Conditions Simulating War and Instrumentality of War.

The complete DPSD evaluation is at Exhibit B.

HQ AFPC/JA recommends denial.  JA states to obtain relief, the 
applicant must show by a preponderance of the evidence there 
exists some error or injustice warranting corrective action by 
the Board.  The United States Claims Court has repeatedly 
defined an injustice in the context of BCMR cases as “treatment 
by military authorities that shocks the sense of justice.”  

The Department of Defense Instruction (DODI) governing 
disability benefits to service members provides the following 
definitions for making the “combat related,” “armed conflict,” 
and “instrumentality of war” determinations:

     Combat Related:  This standard covers those injuries and 
diseases attributable to the special dangers associated with 
armed conflict or the preparation or training for armed 
conflict.  A physical disability shall be considered combat-
related if it makes the member unfit or contributes to unfitness 
and was incurred under any of the following circumstances:  1) 
As a direct result of armed conflict; 2) While engaged in 
hazardous service; 3) Under circumstances simulating war; or 4) 
Caused by an instrumentality of war.

     Armed Conflict:  The physical disability is a disease or 
injury incurred in the line of duty as a direct result of armed 
conflict.  The fact that a member may have incurred a disability 
during a period of war, or in an area of armed conflict, or 
while participating in combat operations is not sufficient to 
support this finding.  There must be a definite causal 
relationship between the armed conflict and the resulting 
unfitting disability.

     Instrumentality of War:  A vehicle, vessel or device 
designed primarily for military service and intended for use in 
such Service at the time of the occurrence of the injury.  It 
may also be a vehicle, vessel, or device not designed primarily 
for Military Service if use of or occurrence involving such a 
vehicle, vessel, or device subjects the individual to a hazard 
peculiar to Military Service.  This use or occurrence differs 
from the use or occurrence under similar circumstances in 
civilian pursuits.  There must be a direct causal relationship 
between the use of the instrumentality of war and the 
disability, and the disability must be incurred incident to a 
hazard or risk of the service.

There is no question the applicant’s injuries occurred during a 
period of war while he was returning from a mission in support 
of military operations in Southwest Asia.  However, under DODI 
1332.38, the location of where the applicant’s injuries occurred 
– in this case England while traveling back to the United States 
– is clearly not a basis for determining his disability was 
combat related or a direct result of armed conflict.  
Designating a disability such as the applicant’s as being the 
direct result of a combat related injury or the direct result of 
armed conflict when it occurred in the Suffolk countryside where 
RAF Mildenhall is situated exceeds the DODI’s unambiguous intent 
to limit these classifications to those service members who were 
injured while directly experiencing the hazards of combat.  
Additionally, the applicant’s disability cannot be attributed to 
an instrumentality of war.  In this case, attempting to remove 
bags containing chemical warfare equipment from the C-5 did not 
expose the applicant to harm by the operation of the aircraft 
itself.  Instead, the evidence contained in the applicant’s 
records establishes his injuries occurred when he lost his 
balance on a ladder inside a parked aircraft.  Put another way, 
the applicant’s shoulder injuries were not a consequence of a 
“hazard peculiar to Military Service” as contemplated in the 
DODI.  The applicant made a voluntary decision to forgo his 
opportunity to contest the IPEB’s findings on this issue.  The 
law on this issue is well-established – no member of the armed 
forces may be separated for physical disability without a formal 
hearing if the member demands one.  By signing the form 
acknowledging that he had received counseling and recognized the 
IPEB’s findings, the applicant certified that he understood his 
options and agreed to accept the IPEB’s administrative findings 
on whether his disability was combat related, a direct result of 
armed conflict, or caused by an instrumentality of war.  This 
waiver serves as an intentional relinquishment of his rights to 
contest the IPEB’s administrative findings and there is no 
reason to doubt its legal efficacy in this case.     

The complete JA evaluation is at Exhibit C.

________________________________________________________________
_

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 22 Feb 08, copies of the Air Force evaluations were forwarded 
to the applicant for review and comment within 30 days.  To 
date, a response has not been received.

________________________________________________________________
_

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 condition the 
applicant believes is combat-related was 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, does 
not qualify for compensation under the Combat Related Special 
Compensation (CRSC) Act.  We agree with the opinion and 
recommendation of the Air Force office of primary responsibility 
and in particular AFPC/JA, 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.

4.  The applicant's case is adequately documented and it has not 
been shown that a personal appearance with or without counsel 
will materially add to our understanding of the issues involved.  
Therefore, the request for a hearing is not favorably 
considered.

________________________________________________________________
_

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 Docket Number    
BC-2007-03664 in Executive Session on 4 Aug 08, under the 
provisions of AFI 36-2603:

	XXXXXXXXXXX, Chair
	XXXXXXXXXXX, Member
	XXXXXXXXXXX, Member

The following documentary evidence pertaining to Docket Number 
BC-2007-03664 was considered:

    Exhibit A.  DD Form 149, dated 5 Sep 07, w/atchs.
    Exhibit B.  Letter, AFPC/DPSD, dated 24 Jan 08.
	Exhibit C.  Letter, AFPC/JA, dated 12 Feb 08.
    Exhibit D.  Letter, SAF/MRBR, dated 22 Feb 08. 




								XXXXXXXXX
								Chair