RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-00792 XXXXXXXXXX COUNSEL: NONE HEARING DESIRED: YES APPLICANT REQUESTS THAT: His AF Form 356, Findings and Recommended Disposition of USAF Physical Evaluation Board and Special Orders NO. ACD-2375 dated 12 August 1993, be amended to reflect that his injury was caused by an “instrumentality of war.” APPLICANT CONTENDS THAT: The term “instrumentality of war” was not clearly defined at the time of his discharge in 1993 and not available until AFI 36- 3212, Physical Evaluation for Retention, Retirement, and Separation, was published in 2006. Therefore, it was not available to the Physical Evaluation Board (PEB) and the retirement section. Furthermore, the C-141 he was injured on was a military transport aircraft that was used exclusively by the Air Force to transport goods, material, weapons and personnel in war. Therefore, this aircraft should fall under the definition of an “instrumentality of war.” Correcting this error will adjust his service computation date and ensure he is credited for his military service. The Board should find it in the interest of justice to consider his untimely application because he did not discover the error until Human Resources at the Department of Transportation advised him of the possible error. In support of his request, the applicant provides a personal statement, copies of his DD Form 214, Certificate of Release or Discharge from Active Duty; Medical Board Report, orders, and various other documents associated with his requests. His complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: According to an AF Form 356 dated 28 July 1993, an Informal PEB (IPEB) found the applicant unfit based on a diagnosis of “Patello-femoral syndrome, severe, right knee.” Accordingly, the IPEB recommended he be permanently retired with a disability rating of 30 percent. According to AF Form 1180, dated 9 August 1993, the applicant agreed with the findings of the IPEB. According to Special Order ACD-2375 dated 12 August 1993, the applicant was discharged from active duty effective 22 September 1993 and permanently disability retired with a 30 percent disability rating. He served on active duty for 14 years, 5 months and 17 days. AIR FORCE EVALUATION: AFPC/DPFD recommends denial. The preponderance of evidence reflects that no error or injustice occurred during the disability process or at the time of the applicant’s retirement. The applicant claims that his condition was caused by an instrumentality of war. AFR 35-4, Physical Evaluation for Retention, Retirement, and Separation, dated 28 June 1989, Section 3.44b (4) states “Instrumentality of War - The PEB may make a favorable determination if the disability was incurred during a period of service as a result of such diverse causes as wounds caused by a military weapon, accidents involving a military combat vehicle, injury, or sickness caused by fumes, gases, or explosion of military ordnance, vehicles, or material.” While the applicant's medical narrative states that he jumped from a burning C-141 in 1982, there is no formal line of duty as to how the fire started in the C-141 that caused the applicant to jump. Based on definition and the facts and circumstances involved, the IPEB determined that the applicant's medical condition was not caused by an instrumentality of war or a direct result of armed conflict. The complete DPFD evaluation is at Exhibit C. AFPC/JA recommends denial. The crux of the applicant's argument is that the IPEB should have found the C-141 was an instrumentality of war and that his injury was caused by it. He alleges the IPEB and the retirement section did not have a clear definition of the term “instrumentality of war” in 1993. He presumes the IPEBs would have defined the C-141 airplane as an “instrumentality of war” had the definition found in AFI 36- 3212 been available to the IPEB in 1993. At the time of the applicant's IPEB in 1993, AFR 35-4, section 3-44(b), stated, in regard to “instrumentality of war” that “the PEB may make a favorable determination if the disability was incurred during any period of service as a result of such diverse causes as wounds caused by military weapon, accidents involving a military combat vehicle, injury, or sickness caused by fumes, gases, or explosions of military ordinances, vehicles, or material." The applicant alleges that it was not until AFI 36-3212 was published that it explained, “in detail the term [instrumentality of war] and how to apply the term.” However, AFI 36-3212, paragraph. 3.27.2.1.4, recites the same language quoted above from AFR 35-4. The term “instrumentality of war” is defined in AFI 36-3212, and is arguably less favorable to the applicant's position. AFI 36-3212 defines the term as “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.” [emphasis added]. Transport planes, such as the C-141, are not designed primarily for military service. There are other cargo planes used outside the military to carry both passengers and cargo, i.e. commercial airlines, FedEx. The hazard in this case was a fire on the plane, which is not unique to a military aircraft or military service. The applicant is an aircraft mechanic, and the risk of an injury from an engine fire while working on any airplane, whether civilian or military, would apply to both civilian and military mechanics. The applicant has not provided any evidence to support his allegation that the C-141 is an instrumentality of war. The complete JA evaluation is at Exhibit D. APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: On 18 November 2014, copies of the Air Force evaluations were forwarded to the applicant for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit E). 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 office of primary responsibility and AFPC/JA and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice. Therefore, 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 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 this application in Executive Session on 15 January 2014, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence pertaining to AFBCMR BC-2014- 00792 was considered: Exhibit A. DD Form 149, dated 18 February 2014, w/atch. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPFD, dated 4 September 2014. Exhibit D. Letter, AFPC/JA, dated 28 October 2014. Exhibit E. Letter, SAF/MRBR, dated 17 November 2014.