RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBER:  BC-2007-03452
								INDEX CODE:  108.07, 108.08, 
                                               108.10
								COUNSEL:  NONE

								HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His retirement orders be changed to reflect that his service-connected disabilities were combat related, caused by an instrumentality of war, and were incurred in the line-of-duty during a period of war.

His retirement date be changed from 8 August 1994 to 1 August 1996 to give him 20 years of active duty service.

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APPLICANT CONTENDS THAT:

The Informal Physical Evaluation Board (IPEB) failed to properly enter a finding that his coronary artery disease was caused by an instrumentality of war and incurred in the line-of-duty during a period of war, solely because he was medically retired in 1994.  

The instability of his condition at the time his case was adjudicated should have resulted in his placement on the Temporary Disability Retired List (TDRL) for a period of up to five years.

In support of his appeal, he has provided copies of a personal statement, an AF Form 2096, Classification/On-the-Job Training Action, placing him in Patient Status, a Cardiac Catheterization Report from the Bethesda National Naval Medical Center, a Medical Board Report referring him to the Physical Evaluation Board (PEB), the Findings and Recommended Disposition of the PEB, a Physical Evaluation Action Memorandum from the Air Force Personnel Council, his concurrence with the Revised Recommended Findings of the Air Force Personnel Council, an AFMPC/DPMADS1 131524Z June 1994 message pertaining to his disability retirement, his retirement order, his DD Form 214, and a Department of Veterans Affairs (DVA) Rating Decision and supporting documents. 

Applicant’s complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

The applicant initially entered the Regular Air Force on 20 June 1976, and was serving as a morale, welfare, recreation and services craftsman at the time of his permanent disability retirement in the grade of staff sergeant (SSgt – E-5), with a 30 percent disability rating.

In early 1993, the applicant began experiencing exertion-induced chest pain.  After medical testing revealed he was suffering from coronary artery disease, he was subsequently referred to the IPEB for adjudication.  On 4 March 1994, the IPEB found him unfit for further military duty, and recommended he be placed on the TDRL “due to the relatively recent onset of illness”, with a 30 percent disability rating.  The Air Force Personnel Board (AFPB) reviewed his case and disagreed with the IPEB’s determination that his coronary disease was unstable, and directed that he be permanently retired instead of being placed on the TDRL.  On 22 April 1994, he was notified of the AFPB’s Revised Recommended Findings (RRF), and, on 3 May 1994, designated with his signature that “I agree with the RRF.”  At the time of his permanent disability retirement on 8 August 1994, he had served a total of 18 years, 1 month, and 19 days of net active service.

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AIR FORCE EVALUATION:

AFPC/DPSD recommends denial of the applicant’s request to change his AF Form 356, Findings and Recommended Disposition of USAF Physical Evaluation Board, dated 4 March 1994, to reflect that his disability was a combat related injury and caused by an instrumentality of war.

Per Air Force Regulation (AFR) 35-4, section 3-43(b):  “Combat-Related-Extra Hazardous Service.  Assignment to a military occupation entitling the member to hazardous duty pay, such as parachute, flight deck, demolition, experimental stress, or leprosarium duty.  Flight pay may be included if it involves other than routine training flights and there is enough evidence of record to show that extremely hazardous duty factor was present.”  AFR 35-4, section 3-43(b) also states:  “Instrumentality of War.  This determination is made only when the physical defect or condition was caused by an instrumentality of war and was incurred in the line-of-duty during a period of war and that defect or condition, standing alone, makes the member unfit.”  The Board determined that his coronary artery disease was not found to be caused by an instrumentality of war and his injury was not a direct result of armed conflict.

The AFPC/DPSD evaluation is at Exhibit C.

AFPC/JA recommends denial of the requested relief.  The application has not been filed within three years of the applicant’s “discovery” of his claim and should be denied on that basis alone.  The interests of justice would not be served by excusing his failure to submit this issue within the required time period as such waivers should be limited to situations to preclude an actual injustice.

Timeliness aside, the applicant’s claim also fails on the merits.  After reviewing his claim and the evidence available, there is no basis for the Board to declare his coronary artery disease was caused by an instrumentality of war and was incurred in the line-of-duty during a period of war, and neither the IPEB nor the AFPB found that his disability was caused by an instrumentality of war or was incurred in the line-of-duty during a period of war. 

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.  

The applicant’s disability plainly does not fall into this classification.  There is no question his injuries occurred during a covered period; however, he fails to present evidence linking the onset of his heart disease with military “a vehicle, vessel, or device.”  Designating a heart-related disability as being caused by an instrumentality of war when it occurred at Seymour-Johnson AFB, NC, exceeds the Department of Defense Instruction’s (DODI’s) unambiguous intent to restrict this finding to those service members who were injured while directly experiencing the unique hazards of military service.  

Additionally, the applicant seeks to have his DD Form 214 changed to show that he served 20 years on active duty.  In this sense, he mistakes the nature of the TDRL which he claims he should have been placed on instead of being permanently retired.  Members on the TDRL are not given service time while awaiting final disposition of their cases.  His current argument that because the AFPB erred in permanently retiring him, the time he would have spent on the TDRL should be used in the computation of his total active service - thus permitting him to be credited with 20 years of service - is a legally ineffectual assertion and it exceeds the Board’s authority to grant this relief.

Lastly, the applicant was evidently satisfied in 1994 with the AFPB’s determination and determined it would be in his best interests to accept the AFPB’s decision that he was unfit for further service and should be permanently retired with a 30 per cent disability rating.  He made a knowing, intelligent, and voluntary decision to forgo his opportunity to contest the AFPB’s findings on this issue at that time.  In failing to demand a formal hearing, he “foreclosed any fight to contest [the AFPB’s decision].”  Moreover, by signing the document in which he accepted the AFPB’s findings, he certified that he understood his options and agreed to accept this board’s decision on whether he should have been placed on the TDRL and whether his disability was caused by an instrumentality of war, and there is no reason to doubt its legal efficacy in this case.

The AFPC/JA evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Complete copies of the evaluations were forwarded to the applicant on 22 February 2008, for review and comment, within 30 days.  However, as of this date, no response has been received by this office.

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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 not timely filed; however, it is in the interest of justice to excuse the failure to timely file.

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 his claim and the evidence available, there is no basis to declare his coronary artery disease was caused by an instrumentality of war and was incurred in the line-of-duty during a period of war, or to change his retirement date to credit him with 20 years of service.  Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

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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 Docket Number BC-2007-03452 in Executive Session on 16 April 2008, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 28 Nov 07, w/atchs.
    Exhibit B.  Applicant's Available Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPSD, dated 24 Jan 08.
    Exhibit D.  Letter, AFPC/JA, dated 12 Feb 08.
    Exhibit E.  Letter, SAF/MRBR, dated 22 Feb 08.