RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 				DOCKET NUMBER: BC-2015-00919

XXXXXXXXXX (DECEASED)			COUNSEL:  NONE

XXXXXXXXXX (APPLICANT)			HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

Her deceased husband’s (former member) DD Form 214, Certificate of Release or Discharge from Active Duty, be corrected to reflect he was deployed in a “hostile fire pay” location.

APPLICANT CONTENDS THAT:

The former member received hostile fire pay while he was assigned to the United States Air Force Security Service (USAFSS) in Misawa AB, Japan from July 1972 to December 1974.  He supported classified missions in Vietnam and Laos and was wounded in Vietnam which required medical treatment.  However, neither the Air Force nor the Department of Veterans Affairs (DVA) have records of these injuries.  He was entitled to Pension and Special Compensation for injuries to his urinary tract and kidneys, Post-Traumatic Stress Disorder (PTSD), cardiovascular disease, prostate disease, gout, glaucoma, and diabetes.  However, he did not receive medical compensation for these injuries, which were incurred in the line of duty.  He was also exposed to Agent Orange.  In addition, the former member would have been promoted to the grade of chief master sergeant (E-9) had he not been forced to retire early due to improper medical care.

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

STATEMENT OF FACTS:

According to the former member’s AF Form 1613, Statement of Service, he entered the Regular Air Force on 28 July 1971.

On 28 February 1993, the former member was furnished an honorable discharge, and was credited with 21 years, 7 months and 3 days of active service.  His narrative reason for separation is “Retirement for Years of Service Established by Law.”

In a letter dated 21 September 1993, the DVA advised the former member that his claim for service-connected disability compensation for prostatitis was less than 10 percent disabling and compensation was not payable.  Service connection was not established for his chronic right knee disorder.

According to AFI 36-3202, Separation Documents, Table 3 (Authorized Entries on Discharge Certificates), deployment in a “hostile fire pay” location is not an authorized entry on the DD Form 214.

In a letter dated 14 March 2015, the applicant advised the AFBCMR that her current DD Form 149, Application for Correction of Military Record, dated 20 December 2014, should be processed as a new claim because it involves monetary compensation relative to hostile fire pay.  Additionally, the applicant alludes to two previously denied claims that addressed Foreign Service, a Purple Heart, medical care post-retirement, medical conditions, exposure to Agent Orange and promotion to the grade of chief master sergeant.  The applicant provided no new or relevant information to consider with the previously denied claims.

On 28 April 2015 and 18 June 2015, the AFBCMR Intake Unit requested advisory opinions relative to the previously denied claims.  These advisories were received and presented to the applicant.  For that reason, they are included in this record of proceeding, along with the applicant’s rebuttal.  However, in summation, the only claim before this board was to add hostile fire pay to the former member’s records, as documented on the applicant’s DD Form 149, dated 28 December 2014.

AIR FORCE EVALUATION:

AFPC/DPSOE recommends denial indicating there is no evidence of an error or an injustice.  The former member was not selected for promotion to the grade of chief master sergeant.  He was promoted to the grade of senior master sergeant (E-8) during promotion cycle 91S8 and received a date of rank (DOR) of 1 August 1990.  Based on that DOR, he was considered and nonselected for promotion to the grade of chief master sergeant during cycle 93S9 (promotions effective 1 January – 1 December 1993).  On 22 June 1992, he submitted an application for voluntary retirement to be effective 1 March 1993.  He was honorably retired in the grade of senior master sergeant on 1 March 1993 after serving 21 years, 7 months and 3 days on active duty.  To grant relief would be contrary to the criteria established by Air Force Regulation 39-29, Promotion of Airmen, dated 23 April 1990, as policy did not allow for an automatic promotion as the applicant requests.

A complete copy of the AFPC/DPSOE evaluation is at Exhibit C.

The BCMR Psychiatric Consultant recommends denial indicating there is no evidence of an error or an injustice.  In addition, the application in untimely as it has been more than 20 years since the former member was discharged from the Air Force.  There is no valid reason mentioned as to why the applicant did not submit a petition within three years of discharge or discovery.  Nevertheless, in the interest of justice the BCMR Psychiatric Consultant has carefully reviewed all the available medical documentation and the military records and found no error or injustice.  The applicant asserts that due to the sensitive nature of her deceased husband’s mission, she is unable to provide supporting documentation to substantiate her claims.  Given the age of the file and the absence of any clinical documentation in this case file, it is impossible to determine the existence of any behavioral health issues at the time of the former member’s service.  In fact his performance reports from 1972-1991 were superb and there are no indications that he had poor job performance or could not fulfill his duty obligations satisfactorily.  The military Disability Evaluation System, established to maintain a fit and vital fighting force, can by law, under Title 10, United States Code (U.S.C.), only offer compensation for those service incurred diseases or injuries which specifically rendered a member unfit for continued active service and were the cause for career termination; and then only for the degree of impairment present at the “snapshot” time of separation and not based on post-service progression of disease or injury.  Therefore, given the exceptional performance of the former member, even if one is to presume that he did suffer from PTSD, it was most likely not unfitting.

A complete copy of the BCMR Psychiatric Consultant’s evaluation is at Exhibit D.

AFPC/DPAPP recommends indicating there is no evidence of an error or an injustice.  The former member’s records do not contain any documentation to substantiate Foreign Service time in Vietnam.

A complete copy of the AFPC/DPAPP evaluation is at Exhibit E.

AFPC/DP3SP recommends denial due to the untimely application and based on the merits.  The Purple Heart is awarded to members of the United States Armed Forces who have been wounded, killed, or who have died or may hereafter die of wounds received in action against an enemy of the United States or opposing force as a result of an act of any such enemy or opposing armed force, an international terrorist attack or during military operations while serving as a part of a peacekeeping force.  A wound for which the award is made must have required treatment, not merely examination, by a medical officer.  Additionally, treatment of the wound shall be documented in the service member's medical and/or health record.  Award of the Purple Heart may be made for wounds treated by a medical professional other than a medical officer, provided a medical officer includes a statement in the service member's medical record that the extent of the wounds were such that they would have required treatment by a medical officer if one had been available to treat them.
The Purple Heart Review Board has the authority (on behalf of the Secretary of the Air Force), to determine a veteran's award of the Purple Heart.  Each request is considered based on the policies and criteria in use at the time the veteran was injured, and the determination is dependent on the documentary evidence presented.  The applicant has made two previous requests for award of the Purple Heart for the former member and both were denied.  The applicant has provided no new relevant documentation with this request for review; therefore, the request was not submitted to the Purple Heart Review Board for consideration.  To grant relief would be contrary to the criteria established by DoD Manual 1348.33, Manual of Military Decorations and Awards, the Secretary of the Air Force, Chief of Staff, and/or the War Department.

A complete copy of the AFPC/DP3SP evaluation is at Exhibit F.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

She submitted two prior requests for correction of the former member’s records, which were denied.  The current advisory opinions recommend denial for Vietnam service and the Purple Heart due to insufficient evidence.  This validates her claim that the Air Force did not maintain records of the former member’s service because a record of his injury or Vietnam service does not, but should exist.  The Defense Finance Accounting Service has compiled a list of entitlements they paid the former member from 28 July 1972 – 31 December 1973.  The Air Force should have source documents for these records of payment.

In further support of her request, the applicant provides medical treatment records indicating the former member was treated in the line of duty for injuries sustained while on active duty, and various other documents related to her appeal.

The applicant’s complete response, with attachments, is at Exhibit H.

ADDITIONAL AIR FORCE EVALUATION:

The BCMR Medical Consultant recommends denial.  There is insufficient evidence to indicate the applicant was “forced” to retire without consideration of medical issues, as no medical documentation is supplied for consideration of the applicant’s medical or medically-related issues.  Prior to entering into military service, Military Entrance Processing Station officials referred the applicant for an orthopedics evaluation due to history of a shoulder dislocation as a child.  He was subsequently declared fit for service entry.  He served more than one period of active service, beginning with his enlistment on 28 July 1971, and ending on 28 February 1993; by reason of retirement for years of service.  Accordingly, no evidence is available to objectively assess whether a disorder of the urinary tract and kidneys, PTSD, cardiovascular disease, prostate disease, gout, glaucoma, or diabetes, interfered with the former member’s ability to perform the duties of office, grade, rank, or rating; nor which prohibited worldwide qualification.

The applicant did not petition the Board for a medical separation or medical retirement, under Chapter 61, Title 10, U.S.C.  Even with service medical documentation, there must be evidence that one or more medical conditions was disqualifying and interfered with the performance of military service to the extent that warranted conducting a Medical Evaluation Board and subsequent referral to a Physical Evaluation Board.  Although the applicant has listed injury to the former member’s urinary tract and kidneys, PTSD, cardiovascular disease, prostate disease, gout, glaucoma, and diabetes, presumably experienced during military service, none have been shown to have been the cause of career termination.  Accordingly, there is no evidence to show the applicant was totally disabled at the time of his approved retirement date, whether reached through computation of disability ratings due to one or more of the listed conditions, or through proof of an inability to sustain gainful employment at the time of retirement.

The Medical Consultant does note that much of the applicant’s petition applies specifically to benefits offered by the DVA, e.g., presumptive service connection for conditions, such as diabetes, occurring in individuals who served in Agent Orange exposed areas; but cannot facilitate this aspect of the applicant’s petition due to lack of medical documentation.  Operating under Title 38, U.S.C.; the DVA is the agency that authorizes entitlement to post-service medical care and compensation for any in-service illness or injury sustained in line of duty; without regard to its proven or demonstrated impact upon a service member’s retainability or fitness to serve, or narrative reason for release from military service.  Like the Military Department, the DVA would require service medical evidence to initiate such a benefit.  Since it is implicit that the applicant served in, then, classified locations, it would be prudent to obtain records of the member’s unit deployed missions.  Additionally, services are offered, under the Civilian Health and Medical Program of the DVA to the qualifying spouse or child of a totally disabled service member, or the surviving spouse or child of a veteran who died of a DVA service-connected disability, or who at the time of death was rated permanently and totally disabled from a service-connected medical condition.  The former member’s Certificate of Death lists the immediate cause of death as Respiratory Arrest, sequentially due to Probable Cardiac Arrest, in the underlying setting of Morbid Obesity.  Hypertensive Cardiovascular Disease was also listed as another “significant factor contributing to death,” but not resulting in the underlying cause listed.  The Medical Consultant is not apprised of the former member’s clinical or weight status at the time of retirement to speculate whether he suffered from hypertension. Perhaps the applicant can acquire evidence from a pharmacy that may show he required treatment within the first 12 months of discharge, which the DVA often considers time sufficient to establish service-connection; depending upon the nature of the medical condition. Again, no service evidence is supplied to indicate the former member suffered from coronary artery disease or cardiovascular disease during his military service; although one can postulate that hypertension would not be uncommon if he was morbidly obese during service or at the time of retirement.  It would be the task of the DVA to establish a nexus between hypertension and military service. Finally, the Medical Consultant gives thanks for the family of the former member for his outstanding service to his country, but found no objective evidence upon which to support the medical and medically-related contentions in this case.

A complete copy of the BCMR Medical Consultant’s evaluation is at Exhibit I.

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

The BCMR Medical Consultant’s evaluation was incorrect when it stated the former member’s shoulder injury occurred when he was a child.  The injury actually occurred on the day of his birth which was Thanksgiving Day, 28 November 1949.  The information pertaining to the location of the former member’s assignment during the period between October 1972 and December 1973 is also incorrect.  Furthermore, the OPR failed to address the reason the former member was paid advance leave from October 1972 to December 1973, and failed to provide an explanation as to why he received hostile fire pay or why there are no records to substantiate these payments.  The former member was sent to a Radio Group Mobile [unit], which is where the catastrophic event occurred.  If the OPR cannot produce these records explaining why the former member received these entitlements, then their opinions should be totally discounted.

The applicant’s complete response is at Exhibit K.

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.  We have completed a comprehensive review of the complete evidence of record to include the applicant’s responses to the advisory opinions.  However, the only issue before this Board is adding hostile fire pay to the former member’s DD Form 214.  According to AFI 36-3202, deployment in a “hostile fire pay” location is not an authorized entry on the DD Form 214.  Therefore, the applicant has failed to sustain her burden of proof that she has been the victim of an error or injustice.  In view of the above and in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application.

THE BOARD DETERMINES THAT:

The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and 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 AFBCMR Docket Number BC-2015-00919 in Executive Session on 23 August 2016, under the provisions of AFI 36-2603:

, Panel Chair
, Member
, Member

The following documentary evidence was considered:

Exhibit A.  DD Form 149, dated 28 December 2014, w/atchs.
Exhibit B.  Former Member’s Master Personnel Records.
Exhibit C.  Memorandum, AFPC/DPSOE, dated 1 May 2015.
Exhibit D.  Memorandum, BCMR Psychiatric Consultant, dated 
  1 June 2016. 
Exhibit E.  Memorandum, AFPC/DPAPP dated 6 June 2016.
Exhibit F.  Memorandum, AFPC/DP3SP, dated 24 June 2016.
Exhibit G.  Letter, AFBCMR, dated 28 June 2016.
Exhibit H.  Letter, Applicant, dated 7 July 2016, w/atchs.
Exhibit I.  Memorandum, BCMR Medical Consultant, dated 
  13 July 2016.
Exhibit J.  Letter, AFBCMR, dated 20 July 2016.
Exhibit K.  Letter, Applicant, dated 6 August 2016.