RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-01217
		INDEX CODE:  108.08
		COUNSEL:  NONE

		HEARING DESIRED: YES
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APPLICANT REQUESTS THAT:

His record be corrected to reflect that his disability was received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war.

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APPLICANT CONTENDS THAT:

While serving in Vietnam he was exposed to Agent Orange numerous times.  He trained as a UC-23 spray/defoliation pilot and C-123K pilot.  He flew contaminated aircraft and moved the spray equipment that was used to spray Agent Orange.  He was medically retired in October 2002 with a permanent disability rating of 100 percent due to cancer of the larynx.  Even though the Physical Evaluation Board (PEB) was aware of his exposure to Agent Orange, they failed to recognize this fact in the "Additional Findings" of the AF Form 356.  He was advised by his counsel that it made no difference in his case since he had over 20 years of active duty and his disability was service related.  He later discovered that it does make a difference.  His research of the Department of Veterans' Affairs website revealed that there was a direct relationship between his disease and exposure to Agent Orange.  had he been properly informed he would have appealed the PEB decision.  The PEB failed to recognize his disease or correctly recognize his disability as having been incurred 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.

In support of his request, applicant provided extracts from his medical records, his AF Form 356, his retirement order, a copy of his DD Form 214, his Officer Effectiveness Report (OER) closing 28 Dec 71, a list of his decorations, a Statement of Service, a DVA website printout, and documentation associated with his DVA claim.  His complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

Applicant, a prior service enlisted Air Force Reservist, accepted a commission and was appointed a second lieutenant, Reserve of the Air Force on 29 Sep 69.  He was voluntarily ordered to extended active duty on 26 Mar 79.  He was progressively promoted to the grade of colonel, having assumed that grade effective and with a date of rank of 1 Aug 92.

A Medical Evaluation Board (MEB) was convened on 3 Jun 02 and referred his case to an Informal PEB (IPEB).  On 11 Jun 02, the IPEB found him unfit for further military service based on a compensable diagnosis of squamous cell cancer of the larynx with a disability rating of 60 percent and a noncompensable diagnosis of gastroephageal reflux disease and chronic low back pain.  The IPEB recommended that he be permanently retired.  The IPEB indicated that his disability was not the direct result of an armed conflict, an instrumentality of war, or combat related.  The applicant did not concur with the findings and recommended disposition of the IPEB.  On 31 Jul 02, a Formal PEB (FPEB) considered the applicant's case and recommended that he be permanently retired from the Air Force with a compensable diagnosis of squamous cell cancer of the larynx and a disability rating of 100 percent.  The FPEB indicated that his disability was not the direct result of an armed conflict, an instrumentality of war, or combat related.  The applicant concurred with the recommended findings.  On 22 Oct 02, he was retired in the grade of colonel.  He served 28 years, 9 months, and 3 days on active duty.

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AIR FORCE EVALUATION:

AFPC/DPPD recommends denial.  DPPD states that although he was treated for various medical conditions throughout his career, nothing reflects his unfitting medical condition at the time of his PEB was the direct result of an instrumentality of war as defined in AFI 36-3212.  The mere presence in an area of armed conflict is not sufficient to qualify for this entitlement.  There must be a definite causal relationship between the armed conflict and the unfitting condition.  In order to meet the criteria for an injury to be considered from an instrumentality of war the harm must have been caused by a military combat vehicle, injury or sickness caused by fumes, gases, or explosion of military ordinance, vehicles or material.  A review of his record by the IPEB confirmed the lack of evidence to establish his claim that his medical condition was the direct cause of an armed conflict or the result of an instrumentality of war.  The DPPD evaluation is at Exhibit C. 

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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.  We note that a condition is considered to be the result of an armed conflict when the defect was incurred in the line of duty as a direct result of an armed conflict.  The mere presence in an area of an armed conflict or simply being in active military service during a period of armed conflict, does not in itself, mean that a condition was the result of an armed conflict.  To be the result of an instrumentality of war, the condition or defect must have been incurred as a direct result of an instrument of war during a period of war.  Evidence has not been presented which would lead us to believe that his medical condition which resulted in the recommendation that he be medically retired from the Air Force by reason of medical disability, was the direct result of armed conflict or an instrumentality of war.  The DVA is authorized under the provisions of Title 38 U.S.C. to rate disabilities on a "presumptive basis" on the basis of exposure to Agent Orange and to presume such disability is combat-related.  In order for the service departments, which are not bound by such presumptions, to associate a particular condition with exposure to Agent Orange, there must be a definite causal relationship between the condition and exposure to Agent Orange.  We are not persuaded that the applicant has substantiated that there is a definite causal relationship between his unfitting condition and exposure to Agent Orange.  Therefore, we agree with the opinion and recommendation of the Air Force office 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 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.

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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-2003-01217 in Executive Session on 17 Sep 03, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 4 Apr 03, w/acths.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPD, dated 16 Jun 03.
    Exhibit D.  Letter, SAF/MRBR, dated 20 Jun 03.