RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-02837 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: 1. His narrative reason for separation be changed to show he was released from active duty due to being placed on the Temporary Disability Retired List (TDRL), rather than release due to demobilization. 2. His records be corrected to reflect his service connected disability of ulcerative colitis be assessed as combat related in order to qualify for compensation under the Combat Related Special Compensation (CRSC) Act. ________________________________________________________________ APPLICANT CONTENDS THAT: 1. His DD Form 214 states he was released due to demobilization. However, he was actually released due to being placed on the TDRL. 2. His medical condition was incurred in the line of duty (LOD) and was a direct result of armed conflict and/or caused by an instrumentality of war. His AF Form 100, Request and Authorization for Separation, stated his disability was received in the LOD during a period of war and that the disability was result of combat related injury. The AF Form 100 states what he went through in Iraq. His AF Form 356, Findings and Recommended Disposition of the USAF Physical Evaluation Board, states his disability was incurred in the LOD in time of war or national emergency or after 14 Sep 78 and that the disability was not incurred in a combat zone or incurred performance duty in combat-related operations. He did not have any symptoms prior to being deployed. He believes his medical condition was the result of the environment, events while in Iraq, and is the direct result of hazardous service and the conditions of war. In support of his appeal, the applicant provides an expanded statement, copies of his DD Forms 214; NGB Form 22, Report of Separation and Record of Service; AF Form 100, Findings and Recommended Disposition of USAF Physical Evaluation Board; and various documents related to this matter. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: On 4 Apr 04, the applicant commenced his enlistment with the Ohio Air National Guard (ANG). On 1 Sep 06, the applicant was ordered to active duty in support of OPERATION IRAQI FREEDOM. In accordance with DoD Instruction 1241.2, paragraph 6.6.3.2, a Reserve component member on active duty under a call or order to active duty specifying a period of 31 days or more, who incurs or aggravates an injury, illness, or disease in the LOD shall, with the member's consent, be continued on active duty upon the expiration of call or order to active duty until the member is determined fit for duty or the member is separated or retired as a result of a Disability Evaluation System (DES) determination. In accordance with AFI 36-3212, Reserve Component members who incur or aggravate an injury, illness or disease in the LOD while on orders for more than 30 days are not involuntarily released from those orders until final disposition of their disability case. These members' entitlement to full pay and allowances and benefits continue to the same extent provided by law or regulation to regular component members. On 22 Feb 07, an LOD determination was initiated for the applicant’s Crohn’s disease. On 25 Mar 07, the applicant’s LOD was determined to be in the LOD. On 6 Apr 07, according to the applicant’s DD Form 214, he was released from active duty with a narrative reason for separation of “demobilization.” On 8 Jun 07, the applicant underwent a Medical Evaluation Board (MEB). The MEB referred his case to the Informal Physical Evaluation Board (IPEB). On 17 Aug 07, the IPEB reviewed the applicant’s case and recommended placement on the TDRL with a 30 percent disability rating for his inflammatory bowel disease most likely ulcerative colitis. The IPEB noted the applicant’s medical condition was incurred in the LOD in a time of war or national emergency or after 14 Sep 78, but that it was not incurred as a direct result of armed conflict or caused by an instrumentality of war, nor was it the result of a combat related injury. On 29 Aug 07, the applicant concurred with the findings and recommendation of the IPEB. On 24 Oct 07, an AF Form 100, Request and Authorization for Separation, was published and, contrary to the IPEB findings, indicated the applicant’s disability was a direct result of a combat related injury as defined in 26 USC 104. On 25 Oct 07, the applicant was placed on the TDRL with a combined compensable disability rating of 30 percent. According to his retirement orders and consistent with the IPEB’s findings, his disability was not received in the LOD as a direct result of armed conflict or caused by an instrumentality of war and incurred during a period of war. On 4 May 09, the applicant underwent an TDRL reevaluation. The IPEB recommended the applicant remain on the TDRL with a 30 percent disability rating. The IPEB noted the applicant’s medical condition had not stabilized; he continued to be symptomatic, and required medical therapy. On 23 Dec 10, the applicant underwent a second TDRL reevaluation and the IPEB again recommended retention on the TDRL. The IPEB noted that since his last TDRL reevaluation the applicant had a semi-elective colectomy with end ileostomy. It was further noted the applicant passes blood from his rectal stump daily and is anticipating undergoing another surgery. On 12 Jun 12, the applicant underwent his third TDRL reevaluation. The IPEB reviewed his case and recommended removal from the TDRL and permanent retirement for physical disability with a 40 percent disability rating. On 8 Jul 12, the applicant concurred with the findings and recommendation of the IPEB. On 8 Aug 12, the applicant was removed from the TDRL and permanently retired with a 40 percent disability rating. On 21 Aug 13, the applicant was notified his DD Form 214, dated 6 Apr 07, will be administratively corrected to change Block 12b, Separation Date This Period, from 6 Apr 07 to 24 Jul 07, due to his release for demobilization. The governing instruction indicates the narrative reason for separation should reflect the service member’s status as of the separation date for the period in question. The applicant’s points history indicates he was demobilized on 24 Jul 07, therefore, his narrative reason for separation accurately reflects release due to demobilization. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPFD recommends denial indicating there is no evidence of an error or an injustice. The applicant contends his ulcerative colitis was combat related due to his duties while deployed to Iraq. There is no evidence showing the applicant’s medical condition was caused by any particular stressors of combat. Furthermore, the medical condition does not meet the criteria for combat relation due to performance of duties. The applicant did not provide any new medical evidence for the Board during any of his TDRL re-evaluations. Therefore, since his medical condition was not deemed combat related his AF 356 is appropriately annotated. The CRSC program was established to provide compensation certain retirees with combat-related disabilities that qualify under the criteria set form in Title 10, U.S.C., Section 1414a. If the former service member fails to satisfy the preliminary CRSC criteria, no further consideration by their service department is required and the claim will be denied. Under current CRSC guidelines, the service member is required to meet the following basic eligibility requirements (a) received military retirement pay, (b) have disabilities rated at least 10 percent by DVA, and (c) submit a signed claim for Combat-Related Special Compensation. In order for a disability to be determined as combat-related, there must be objective documentary evidence that the disability is the direct result of a combat event or events or performance of duty simulating war or caused by hazardous service or an instrumentality of war. A complete copy of the AFPC/DPFD evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 18 Oct 13 for review and comment within 30 days (Exhibit C). As of this date, no response has been received by this office. ________________________________________________________________ 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 an error or injustice with respect to the applicant’s claim that his ulcerative colitis was combat related or the result of an instrumentality of war. While the applicant contends this condition was the direct result of armed conflict and caused by an instrumentality war and provides a copy of his AF Form 100 published by his Air National Guard (ANG) unit in support of his assertion, we do not find this document, in and of itself, sufficient to conclude that corrective action is warranted. In this respect, we note that the Informal Physical Evaluation Board (IPEB) reviewed the applicant’s case on four separate occasions, once prior to his initial transfer to the temporary disability retired list (TDRL) and during three separate TDRL re-evaluations, and determined that the applicant’s condition was not combat related or the result of an instrumentality of war. Therefore, in view of these facts, we find it much more likely than not that the remarks cited by the applicant on his AF Form 100, in the face of four separate findings to the contrary by the IPEB, represent an administrative error on the part of his ANG unit when publishing the AF Form 100. Therefore, in the absence of any evidence that the IPEB’s determinations on this point were somehow erroneous, we find no basis to recommend correcting the applicant’s records to reflect that the conditions which ultimately caused his disability retirement were the result of combat or an instrumentality of war. 4. Notwithstanding the above, sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice with respect to the applicant’s narrative reason for separation as reflected on his DD Form 214. The applicant contends that his narrative reason for separation should reflect that he was transferred to the TDRL, rather than released from active duty due to demobilization. After a thorough review of the evidence of record and the applicant’s complete submission, we agree. In this respect, we note that the governing Air Force and Air Force Reserve instructions indicate that Reserve members such as the applicant who, while on active duty for more than 30 days, incur an unfitting condition in the line of duty (LOD) will be retained on active duty for the purposes of medical continuation (MEDCON) until they are either found fit for duty or separated through the disability evaluation system (DES). As it is clear the applicant was processed under the DES, was found unfit, and ultimately transferred to the TDRL, we believe it appropriate to correct his records to reflect that he was retained on active duty for the purposes of MEDCON until his transfer to the TDRL and that the Narrative Reason for Separation reflected on his DD Form 214 also be corrected to reflect he was released from active duty due to his transfer to the TDRL, instead of for demobilization. Therefore, we believe it appropriate to recommend the applicant’s records be corrected to the extent indicated below. ________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that: a. He was not released from active duty on 24 July 2007, but on that date, he continued to serve on active duty for the purposes of medical continuation (MEDCON) until 24 October 2007, when he was released from active duty and transferred to the Temporary Disability Retired List (TDRL), effective 25 October 2007. b. The narrative reason for separation listed on his DD Form 214, Certificate of Release or Discharge from Active Duty, be corrected to reflect “Disability – Temporary,” instead of “Demobilization.” ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2013-02837 in Executive Session on 18 Mar 14 and 16 Apr 14, under the provisions of AFI 36-2603: , Panel Chair , Member , Member All members voted to correct the records as recommended. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 6 Jun 13, w/atchs. Exhibit B. Applicant's Master Personnel Records Exhibit C. Letter, AFPC/DPFD, dated 3 Jul 13. Exhibit D. Letter, SAF/MRBR, dated 18 Oct 13. Panel Chair DEPARTMENT OF THE AIR FORCE WASHINGTON DC Office of the Assistant Secretary AFBCMR BC-2013-02837 MEMORANDUM FOR THE CHIEF OF STAFF Having received and considered the recommendation of the Air Force Board for Correction of Military Records and under the authority of Section 1552, Title 10, United States Code it is directed that: The pertinent military records of the Department of the Air Force relating to XXXXXXXXXX, XXXXXXXXXX, be corrected to show that: a. He was not released from active duty on 24 July 2007, but on that date, he continued to serve on active duty for the purposes of medical continuation (MEDCON) until 24 October 2007, when he was released from active duty and transferred to the Temporary Disability Retired List (TDRL), effective 25 October 2007. b. The narrative reason for separation listed on his DD Form 214, Certificate of Release or Discharge from Active Duty, be corrected to reflect “Disability – Temporary,” instead of “Demobilization.” Director Air Force Review Boards Agency 1 2