RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBER:  BC-2006-03172
                                             INDEX CODE:  108.07, 108.08
      XXXXXXXXXXXX                      COUNSEL:  NONE

                                             HEARING DESIRED:  YES


MANDATORY CASE COMPLETION DATE:  15 April 2008


________________________________________________________________

APPLICANT REQUESTS THAT:

His AF Form 356, Findings and Recommendations of  USAF  Physical  Evaluation
Board, be corrected  to  reflect  his  disability  was  combat-related,  the
injury he suffered was the direct result of armed conflict or was caused  by
an instrumentality of war, and occurred while in the line of duty  during  a
period of war.

The ear injury he received in  March  2003,  while  deployed  for  Operation
Iraqi Freedom (OIF), be classified as a combat related injury, caused by  an
instrumentality of war during an armed conflict.

________________________________________________________________

APPLICANT CONTENDS THAT:

The injury occurred during the March 2003 through May 2003  timeframe  while
he was deployed to a forward, still classified, location  during  the  onset
of hostilities with  Iraq.   The  air  combat  missions,  still  classified,
required the EC-130 aircraft to park on  undeveloped,  unmaintained  desert.
All of his training did not prepare him for such a situation  or  conditions
due to the size, weight, and normal mission requirements with the  aircraft.
 The mission, still classified, was for the  Air  Force  Special  Operations
Command and was thrust upon them only due to the war with Iraq.   Had  there
been no war, the injury never would have occurred.

The ear injury occurred while returning to XXXXX, from a classified  forward
location.  The injury occurred while the aircraft  was  descending  and  the
aircraft caused the injury.

In support of his appeal, he has  submitted  copies  of  his  AF  Form  356,
Findings and Recommendations of USAF Physical  Evaluation  Board,  dated  16
May 2006, AF Form 348, In Line  of  Duty  Determination,  dated  10 December
2003, DD Form 214, dated 19 September 2003, Memo for Record  signed  by  the
Maintenance Squadron Commander,  dated  20  March  2005,  Memo  for  Medical
Squadron signed by the Support Group First Sergeant,  dated  26 April  2003,
Follow-Up Memo signed by the Mission Support Group First Sergeant,  dated  6
May 2006, Memo for Medical  Squadron  signed  by  the  Support  Group  First
Sergeant, dated 4 April 2003, and a Record of Medical  Care  extract,  dated
16 March 2003.

Applicant’s complete submissions, with attachments, are  at  Exhibits A  and
A1.

________________________________________________________________

STATEMENT OF FACTS:

Applicant is a former member of  the  Air  National  Guard  (ANG).   He  was
activated for OIF and was  subsequently  deployed  to  a  forward  operating
location during the March-May 2003 timeframe.  He suffered an injury to  his
left elbow while forcibly removing tire chocks used  to  stabilize  a  C-130
aircraft parked on a dirt ramp at a classified desert airfield.  The  injury
was  diagnosed  as  a  moderately  severe  case  of   left   elbow   lateral
epicondylitis, which reduced the grip  strength  in  his  left  hand  to  20
pounds and greatly limited his left arm’s range of motion.

His Medical Board was evaluated by an  Informal  Physical  Evaluation  Board
(IPEB) in December  2005.   The  IPEB  recommended  he  be  discharged  with
severance pay, with a 10% disability rating.  Applicant did not  agree  with
the IPEB findings and, in January 2006, requested to appear before a  Formal
Physical Evaluation Board (FPEB).  The FPEB, after  reviewing  new  evidence
and applicant’s medical records, determined a  hearing  was  not  necessary,
and recommended he be discharged with severance pay, with a  20%  disability
rating.  The FPEB made additional findings on  his  AF  Form  356  that  his
disability was not a combat related injury,  and  it  did  not  occur  as  a
direct result of armed conflict or caused by an instrumentality of war.

On 16 May 2006, applicant declared on an AF Form 1180,  Action  on  Physical
Evaluation Board Findings and Recommended Disposition, he  agreed  with  the
findings of the FPEB, and did not desire  to  submit  a  rebuttal.   He  was
discharged on 26 May 2006, and his date of  separation  was  established  as
19 September 2003.

________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPD recommends denial as the preponderance  of  evidence  reflects  no
error or injustice occurred during the disability  process  or  at  time  of
retirement.

AFI 36-3212, section 3.26, Attachment 1, states  “Armed  Conflict –“Conflict
between nations or other contestants entailing the physical destruction  of,
or injury to, one another’s armed forces.   Armed  conflict  exists  if  the
direct use of physical forces endangers the lives or safety  of  members  of
the armed services of a nation, belligerent power,  coalition,  or  faction.
Armed  conflict  includes  war,  expedition,  occupation  of  an   area   or
territory,  battle,  skirmish,  raid,  invasion,  rebellion,   insurrection,
guerilla action, riot, or any other  action  in  which  Air  Force  military
personnel engage a hostile or belligerent nation,  faction,  or  force.   It
also includes incidents involving a member while interned as a POW or  while
detained against his or her will in custody  of  a  hostile  or  belligerent
force, or while escaping or attempting  to  escape  from  such  confinement,
POW, or detained status.  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   of   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 service.”

Applicant’s AF Form  348,  Line  of  Duty  Determination,  stated  applicant
injured his elbow when he was removing chocks from  the  aircraft  tires  by
pounding the rear chocks lose.  The MEBs determined  that  chocks  used  for
the purpose of parked aircraft are not an instrumentality  of  war  and  his
injury was not a direct result of armed conflict.

The AFPC/DPPD evaluation is at Exhibit C.

AFPC/JA recommends  denial.   After  reviewing  applicant’s  claim  and  the
evidence available, there is no  basis  to  declare  his  elbow  injury  was
combat related, the direct  result  of  armed  conflict,  or  caused  by  an
instrumentality of war.

Service members with disabilities determined by the FPEB  to  have  occurred
as a direct result of armed conflict, caused by an instrumentality  of  war,
and incurred in the line of duty during a period of war, or as being  combat
related,  are  entitled  to  assorted  federal   civil   service   benefits.
Additionally, member’ physical disability  compensation  would  be  excluded
from their federal income tax if the FPEB made any of  these  administrative
determinations.  Department Of Defense Instruction (DODI) 1332.38,  Physical
Disability  Evaluations,  provides  the  following  definitions  for  combat
related, armed conflict, and instrumentality of war:

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:   as  a
direct result of armed conflict, while engaged in hazardous  service,  under
circumstances simulating war, or 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 – The  same  definition  provided  in  the  AFPC/DPPD
advisory above.

The applicant’s disability does not fall into  any  of  the  classifications
listed  above.   His  presence  in  a  location  where  armed  conflict  was
occurring is clearly not the basis for  determining  his  disability  was  a
direct  result  of  armed  conflict.   Moreover,  his  left  elbow   lateral
epicondylitis –  more  commonly  referred  to  as  tennis  elbow  –  is  not
attributable to his active engagement in actual  combat.   This  injury  is,
instead, a pre-existing condition “aggravated by extreme shock  of  pounding
heavy  [aircraft]  wheel  chocks.”   Designating  an  injury  such  as   the
applicant’s as being the direct result of armed conflict exceeds the  DODI’s
unambiguous intent to limit this classification  to  those  service  members
who were injured while directly experiencing the hazards of combat.

Additionally, his disability cannot be attributed to an  instrumentality  of
war.  As defined by the DODI, an instrumentality  of  war  would  include  a
vehicle,  vessel,  or  device  designed  primarily  for  military   service.
Aircraft, ships, and tanks clearly fall under this category, and there  must
be a direct causal relationship between the instrumentality of war  and  the
disability.  The applicant argues his injury occurred  when  was  repeatedly
striking tire chocks to remove them from a parked aircraft.   Releasing  the
chocks by force, however, did  not  expose  him  to  harm  by  the  aircraft
itself.  Put another way, his elbow  injury  was  not  a  consequence  of  a
“hazard peculiar to Military Service” as contemplated in the DODI.

The AFPC/JA evaluation is at Exhibit D.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Complete copies of the evaluations were forwarded  to  the  applicant  on  1
December 2006, for review and comment, within 30 days.  Applicant  responded
on 14 December 2006, stating he believed the advisories and  recommendations
were in error in accordance with DODI 1332.38.

His job, together  with  the  added  circumstances  of  being  in  an  armed
conflict, falls well within  the  range  of  “Hazardous  Service.”   A  crew
chief’s responsibilities are a hazardous service in  and  of  themselves  as
they are always around running engines, props, fuel,  liquid  oxygen,  flare
and chaff explosives, taxing aircraft, and many other hazardous  conditions.
 He was  performing  his  duties  under  combat  operations  for  OIF  in  a
classified, forward location as a crew chief on a C-130 aircraft  and,  with
the added conditions of the location and  the  requirements  of  the  combat
missions, it falls well within the range of a Hazardous Service.”

Their combat missions required them to park  the  aircraft  on  unmaintained
and undeveloped desert terrain.  It  was  parked  there  to  perform  combat
missions with Iraq, and for no other  reason.   At  any  other  time,  there
would be no thought of parking a loaded, 140,000 pound,  C-130  aircraft  on
unmaintained and undeveloped desert  terrain.   His  injury  occurred  as  a
result  of  these  conditions  and  falls  in  the  category  of  a  “causal
relationship” of armed conflict.

He took issue  with  the  AFPC/JA  reference  to  a  28  June  2005  medical
annotation, which stated “XXXXX has a  protracted  problem  with  his  elbow
that has waxed and waned over the  years…   His  disorder  is  a  cumulative
traumatic disorder yet it is constantly attached to a  single  episode  from
years ago.”  This is the same document the Medical Group had  doctored  from
his medical records, and his  attorney  at  the  FPEB  discovered  this  and
brought it to their  attention.   It  is  unknown  exactly  how  many  other
documents were doctored and/or changed by the  unit  to  protect  themselves
and their jobs, and there were no prior or  pre-existing  conditions  to  be
aggravated.  The injury occurred in March 2003, and  was  witnessed  by  the
Maintenance Squadron Commander.

Under DODI 1332.38, there are multiple ways for an individual  to  obtain  a
combat related injury without being anywhere near combat or armed  conflict.
 The intent of these DODIs is not to limit  these  classifications  to  only
the hazards of combat, but to extend it to, but not  limited  to,  practice,
training, simulating, negotiation of courses, and even being  injured  while
participating in sports.

Although the AF Form 356 is correct, it does not contain all of  the  facts.
His lawyer suggested he take this route rather than appear in person  before
the board for fear of being placed on the  Temporary  Disability  Retirement
List (TDRL).  According to his lawyer, he was on the border  line  of  being
30% to 40% disabled.  If he were placed on the TDRL,  his  income  would  be
approximately $750 per month and, as  he  was  already  strapped  for  cash,
there would be no way he could support his family of  four  until  he  found
suitable income.  He would lose his house and have  to  declare  bankruptcy,
and he knows of three other people that were placed  on  the  TDRL  and  all
lost their homes.  He felt trapped and opted  to  take  the  20%  disability
with severance pay to have the peace of mind that his family  would  survive
and they would not lose their house.

He is a Guardsman who was activated, deployed for OIF, became injured  while
doing his job on a combat mission, and returned home to only get  inadequate
medical care from the military.  He received no help  or  support  from  his
unit, and they doctored documents and have turned their  backs  on  him  and
his family.  He was unable to perform his civilian  and  military  jobs  and
refused to be put on or kept on active duty to receive timely  medical  care
and to take care of his family. He was forced to go  on  incapacitation  pay
and, while drawing this pay, he was not entitled  to  any  medical  coverage
for himself or his family, did not receive any retirement  points,  did  not
collect any time for leave, and could not receive outside financial help  as
that would be deducted from his incapacitation pay.  He was  working  beside
regular active duty personnel and, if they had incurred the same injury  and
were unable to perform their duties,  they  would  be  put  on  convalescent
leave and be allowed to keep all their family benefits.  As an Air  National
Guardsman, he was not treated the same and the military lied when they  said
they would take care of him and his family when he  was  deployed.   Due  to
the injury, he has lost his $50,000 plus per year job and has  yet  to  find
suitable employment to support his family.  His home is now for sale and  he
is working with the Air Force Palace Heart Program which he hopes will  have
a positive outcome.

Applicant’s complete response, with attachments, is at Exhibit F.

________________________________________________________________

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.   We  took  notice  of  the  applicant's
complete submission in judging the merits of the  case;  however,  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.   After
reviewing applicant’s claim and the evidence available, there  is  no  basis
to declare his elbow or ear injuries were combat related, the direct  result
of armed conflict, or caused by an instrumentality of war.  His presence  in
a  location  where  armed  conflict  was  occurring  is  not  a  basis   for
determining his disabilities were a direct  result  of  armed  conflict,  as
there must be a definite causal relationship between the armed conflict  and
the resulting unfitting disability incurred while directly experiencing  the
hazards of combat.  Additionally, his disabilities cannot be  attributed  to
an instrumentality of war.  Releasing the aircraft chocks by force, did  not
expose him to harm by the aircraft  itself,  and  his  ear  blockage  during
aircraft descent was not a consequence of  a  hazard  peculiar  to  Military
Service.  Therefore, 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 issue(s) 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-2006-03172
in Executive Session on 20 June 1977, under the provisions of AFI 36-2603:

                       Mr. Thomas S. Markiewicz, Chair
                       Mr. Wallace F. Beard, Jr., Member
                       Mr. Alan A. Blomgren, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 10 Oct 06, w/atchs.
    Exhibit A1..DD Form 149, dated 29 Nov 06, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPD, dated 20 Oct 06.
    Exhibit D.  Letter, AFPC/JA, dated 15 Nov 06.
    Exhibit E.  Letter, SAF/MRBR, dated 1 Dec 06.
    Exhibit F.  Letter, Applicant, dated 14 Dec 06, w/atchs.



                                   THOMAS S. MARKIEWICZ
                                   Chair