RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-01669

  						COUNSEL:  NONE

						HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

His AF Form 356, Findings and Recommended Disposition of USAF Physical Evaluation Board, Section 9, Line F, be changed from “NO” to Instrumentality of War (IOW) “I.”

APPLICANT CONTENDS THAT:

In a five-page brief, the applicant’s makes the following key contentions:
	
	He would like the AF Form 356 to be changed in accordance with the governing instructions and the definition of IOW.   Consistent use of the Document and Media Exploitation (DOMEX) device over a period of many months induced Post-Traumatic Stress Disorder (PTSD), as acknowledged by the Secretary of the Air Force Personnel Council (SAFPC).  In addition to this, the DOMEX device meets the criteria for an IOW, as defined by the governing instructions.  Given this, he reiterates his request that the entry on AF Form 356, dated 23 March 2012, Line 9F, needs to be changed from “NO” to “I” because his disability is the direct result of the extensive use of an IOW.

	On 12 August 2011, a Formal Physical Evaluation Board (FPEB) convened at Lackland AFB, Texas, because he appealed the findings of the IPEB as part of the Temporary Disability Retired List (TDRL) periodic reevaluation process.  In this respect, the SAFPC issued its decision on 23 March 2012, which can be found at Exhibit K.  His council acknowledged the FPEB findings.

	A primary question under consideration is whether or not said DOMEX equipment and software as a “system” or “device” should be classified as an IOW as contemplated by the term’s usage and meaning in the statute and regulation.  Whereas in the earlier PEBs and in the appeal to the Council, the presence of PTSD was at issue, that is not the case in the present matter.  As the Council conceded the proximate cause of the PTSD was service in a combat zone, the only remaining issue is whether or not the DOMEX equipment and software used in operations should be characterized as an IOW.  The computers and scanning equipment by themselves were commercially available, as were some of the software packages.  Other software programs were specifically created for the Army for the express purpose of conducting DOMEX operations.  He questions if there is a direct causal link between the use of the device and the disability suffered.  The medical reports and Department of Veterans Affairs (DVA) Rating Decision clearly establishes that the use of the DOMEX device for many months is what directly caused PTSD to be induced.  Finally, it should be considered whether or not the disability occurred incident to the hazard or risk of military service.  Since the DOMEX device creates a hazard unique to military service, and it was the use of said device that induced PTSD, it follows that the disability occurred incident to the hazard or risk of military service.

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

STATEMENT OF FACTS:

The applicant initially entered active duty in the Regular Air Force on 25 March 2002.

On 22 May 2009, the Informal PEB (IPEB) diagnosed the applicant with Bipolar Disorder, Not Otherwise Specified with Psychotic Features and recommended he be temporary retired with a 30 percent compensable disability rating.  

On 19 August 2009, a FPEB convened and diagnosed the applicant with Mood Disorder, Not otherwise Specified with Psychotic Features and recommended him to be temporary retired with a 30 percent compensable disability rating.  The applicant concurred with the FPEB findings on 20 August 2009.

Special Order (SO) No. ACD-02017, dated 2 September 2009, reflects the applicant on 23 November 2009 was placed on the TDRL with a 30 percent compensable disability rating.

On 18 April 2011, the IPEB diagnosed the applicant with Bipolar Disorder, Not Otherwise Specified, and recommended the applicant be transferred from the TDRL to Permanent Retirement status with a 30 percent compensable disability rating.

On 12 August 2011, the FPEB diagnosed the applicant with Bipolar Disorder, Not Otherwise Specified, and recommended the applicant be permanently retired with a 30 percent compensable disability rating.  The applicant non-concurred with both PEBs and requested an appeal to SAFPC.

On 23 March 2012, SAFPC completed the TDRL reevaluation and revised their findings by recommending the applicant be removed from the TDRL and permanently retired with a 30 percent compensable disability rating. 

According to the applicant’s TDRL Reevaluation, AF Form 356, dated 23 March 2012, SAFPC recommended he be permanently retired with a 30 percent disability rating; Section 9, Line F, of the AF Form 356 reflects “NO” (not combat related). 

SO No. ACD-01908, dated 4 April 2012, reflects the applicant was removed from the TDRL and permanently retired in the grade of Captain with a 30 percent disability rating for physical disability.  The applicant was credited with 7 years, 8 months, and 1 day of active service. 

The remaining relevant facts pertaining to this application are contained in the memorandums prepared by the Air Force offices of primary responsibility (OPR), which are attached at Exhibit C and F.    

AIR FORCE EVALUATION:

AFPC/DPFDD recommends denial stating that the preponderance of evidence reflects that no error or injustice occurred during the disability process.  In addition, the governing instructions states, “…the PEB may make a favorable determination if the member incurred the disability during any period of service of such diverse causes as wounds caused by a military combat vehicle, injury or sickness caused by fumes, gases, or explosion of military ordnance, vehicles, or material.”  Although the applicant’s disability incurred in a combat zone, there was no direct threat to his life while using the DOMEX device.  They believe the DOMEX device does not meet the criteria to rate the applicant’s disability as combat related caused by an IOW.

After the applicant’s TDRL reevaluation was complete, the DVA assigned a 30 percent disability rating for “Bipolar with Anxiety Disorder and Posttraumatic Stress Disorder.”  The DVA stated, “…we did not receive any evidence to warrant a revision in your current disability evaluation.”  Shortly following the applicant’s TDRL reevaluation, both the IPEB and FPEB reviews recommended permanent retirement with a 30 percent disability rating for “Bipolar Disorder, Not Otherwise Specified.”  The applicant non-concurred with both PEBs and requested an appeal to the SAFPC.  However, SAFPC directed the applicant be removed from the TDRL and permanently retired with a 30 percent disability rating.

By way of background, IOW is defined 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.” 

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

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In a seven-page brief, the applicant’s provides the following key comments in rebuttal:

	AFPC/DPFDD contends the application was not submitted in a timely fashion.  The application in question, dated 15 April 2015, was mailed on 18 April 2015, to SAF/MRBR via U.S. Postal Service Priority Mail Express, received on 20 April 2015 at 0802, and signed for by “E. P…” (Exhibit C).  Thus, the application was filed timely by definition.

In the fourth paragraph of the advisory opinion, “OPR Analysis of Applicant’s Contentions,” AFPC/DPFDD writes, "The applicant contends extensive use of DOMEX software and hardware during combat operations are a direct result for his disability.  He claims the DOMEX device meets all criteria for IOW.”

		First, stating, “the applicant contends” implies a mere assertion without evidence.  The numerous medical opinions submitted as Exhibits R through V, and SAFPC’s memorandum submitted as Exhibit K, from the 15 April 2015 application shows the connection between the use of the DOMEX device and PTSD is either explicitly acknowledged or necessarily inferred in each of these documents.

		Second, the use of the phrase “during combat operations” infers he claims to have been directly involved in combat operations.  This is not the case.  He refers to the third paragraph of Exhibit B from the 15 April 2015 application, where he explicitly states his use of the DOMEX device was in “supporting combat operations.”
	
	Third, the word “result" should be changed to “cause.”  Finally, and of great importance, is the acknowledgement from AFPC/DPFDD that DOMEX software and hardware is indeed a “device” as contemplated in the IOW definition.  Note the text of the opinion states, “He claims the DOMEX device meets all criteria for IOW.”  Had the author of the opinion intended otherwise, he would have stated something to the effect of “He claims DOMEX software and hardware meet all the criteria for a device as contemplated in the IOW definition.”  

The eighth paragraph of the advisory opinion, “Facts/Analysis,” cites AFI 36- 3212, Physical  Evaluation for  Retention,  Retirement,  and  Separation, Attachment 1, Glossary of References and Supporting Information, for a definition of an IOW.  Pertinent to this response and in rebuttal is the author of the advisory opinion emphasized the last half of the last sentence of the definition, specifically, “… the disability must be incurred incident to a hazard or risk of the service” (underline in advisory opinion). It is unclear why this section is underlined. This particular aspect of the definition has the most evidentiary support in the record.  One need only examine Exhibits B, K through P, and R through V from the 15 April 2015 application to confirm this component of the definition is satisfied.
	
The following paragraph purports to cite Chapter 3.26.2 from the same instruction.  In fact, the paragraph cites a portion of Chapter 3.27.2.1.4. The part of the instruction cited by the author of the advisory opinion deals with the Tax Reform Act of 1976 (26 U.S.C. § 104), and the ramifications for the taxability of military disability pay.  The portion cited specifically states “… the law does not require that the disability be incurred during a period   of war.  Consequently, the PEB may make a favorable determination if the member incurred the disability during any period of service of sulci diverse causes as wounds caused by a military combat vehicle, injury or sickness caused by fumes, gases, or explosion of military ordnance, vehicles, or material.” There are several points to make regarding this portion of the instruction.

Lastly, the instruction requires that the “condition, standing alone, makes the member unfit.”  In SAFPC’s memorandum to AFPC/DPSDD, dated 23 March 2012, one finds “The Board opines the member certainly has a long established history of mental health issues, which predates his deployment to Iraq” (Exhibit K from the 15 April 2015 application).  This statement is not in dispute.  Rather, this statement confirms the condition that occurred in Iraq, PTSD is what made him unfit for duty.  Prior to deployment, one need only review his performance reports to find excellent and outstanding duty performance.  Additionally, deployment would not have been possible without being fit for duty; this changed after Iraq.  Of note, in a memorandum from 614 AOC/CC to AFPC/DPAMM, dated 17 Mar 2009, the fourth paragraph on the third page states, “I believe this member will continue to experience stress and other anxieties over the long term that will be exacerbated by the demands of his service in the military and I see little possibility of him ever being restored to fully world-wide deployable status. If current treatments are unable to restore his ability to fully function within a military environment, even in-garrison, both he and the Air Force will be better served by his separation.”  The record thoroughly demonstrates this requirement is also satisfied.  The governing instructions were examined in detail to demonstrate that regardless of whether or not the condition occurred during a period of war, the IOW provision applies.
	
An examination of the tenth paragraph of the advisory opinion demonstrates at least a partially incorrect understanding of an IOW on the part of the OPR.  Specifically, the opinion notes “Although the applicant's disability occurred in a combat zone, there was no direct threat to the applicant's life while using the DOMEX device. We believe the DOMEX device does not meet the criteria to rate the applicant's disability as combat related caused by an Instrumentality of War.” Nowhere is there a requirement that there must be a direct, or even indirect, threat to the applicant's life in order for a vehicle, vessel, or device to be classified as an IOW.  This is exactly how the FPEB, which convened on 12 August 2011, treated PTSD. The medical member of the FPEB asked how one could have PTSD without being in actual combat.  As was pointed out to SAFPC, there is no requirement that actual or threatened harm be present in order for PTSD to be diagnosed. Indeed, SAFPC “… found credible evidence that the member does suffer from Post-traumatic stress disorder (PTSD) ….”  Please note the tenth paragraph is the extent of the analysis offered in the advisory opinion.  These previous paragraphs completely rebut the advisory opinion submitted by the OPR.  The errors in the opinion, as listed in this memorandum, call into question its thoroughness and validity.  Even without the errors, the OPR neglected to address the core arguments as to why the DOMEX device is indeed an IOW, as detailed in Exhibit B.  That said, there seem to be underlying assumptions that need to be addressed.

A copy of the applicant’s complete submission, with attachments, is at Exhibit E.

ADDITIONAL AIR FORCE EVALUATION:

AFPC/JA recommends denial.  The applicant argues that his medical providers and the DVA have determined that the proximate cause of his PTSD was the consistent exposure to media of a violent, graphic, and terroristic nature.  The consistent exposure resulted from conducting DOMEX operations, and thus, he argues, the DOMEX operations are the proximate cause of his PTSD.  Therefore, he says, the only remaining issue is whether the DOMEX equipment and software should be characterized as IOWs.  However, the answer, quite simply, is no they should not.  The applicant’s PTSD was not caused by his computer equipment; it was caused by the traumatic images and videos that he viewed using that equipment.  That is a subtle but significant distinction.  The computer equipment and software was a means by which the applicant had access and opportunity to view horrible scenes of tragedy.  To characterize the equipment itself as an IOW would be contrary to the intent of the determination that an injury or illness was caused by an IOW.  As is clear from the definition of IOW, the intent is to encompass objects that, themselves, cause injury—a weapon, or ordnance, or even gaseous fumes.  In this case, the computer did not cause the PTSD—it simply conveyed the harmful images that caused the PTSD. 

Additionally, the FPEB’s decision included a determination that his disability was not combat related.  The applicant appealed that decision, and the SAFPC removed the applicant from the TDRL and permanently retired him.  The AF Form 356 issued by SAFPC on 23 March 2012 indicates that the applicant does suffer from PTSD and that there was significant evidence that the condition [PTSD] occurred in a combat zone.  The memorandum from SAFPC recites the definition of IOW, but does not provide express analysis before concluding that there was not sufficient evidence to characterize his DOMEX equipment as an “IOW.”   

In this case, the best information the applicant provides is about his use of the DOMEX equipment that is contained in his appeal letter to SAFPC, dated 25 August 2011.  In this letter, he notes that using the DOMEX device subjected the user to a hazard peculiar to the military service—continual exposure to visual images, videos, documents, sounds, etc., of a murderous, violent and terroristic nature that one would not come into contact with in a civilian environment.  He states that he used specialized equipment, software, and networks to conduct his deployed duties with a variety of modifications performed by the Army.  Additionally, the tactics, techniques and procedures used to exploit documents and media were designed and taught by the Army.  He notes that standard unclassified computers and systems would not be suitable for performing his duties without modification, and civilians would not have access to his equipment or know the techniques necessary for exploitation. 

By way of background, pursuant to the governing instructions, a determination that a disability was incurred as a result of armed conflict or an IOW may entitle the retiree to certain benefits.  However, the PEB makes a determination that the applicant’s injury was a result of an IOW only when the member incurred the physical defect or condition in line of duty as the result of an IOW during a period of war, and that defect or condition, standing alone, makes the member unfit. 

An IOW is defined 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 IO and the disability, and the disability must be incurred incident to a hazard or risk of the service.

The law does not require that the disability be incurred during a period of war.  Consequently, the PEB may make a favorable determination if the member incurred the disability during any period of service of such diverse causes as wounds caused by a military combat vehicle, injury or sickness caused by fumes, gases, or explosion of military ordnance, vehicles, or material.  AFI 36-3212, paragraph 3.27.2.1.4.

Further, more recent guidance on the matter is Department of Defense Instruction 1332.18, Disability Evaluation System (DES), dated 5 August 2014.  In its discussion of administrative decisions in Appendix 5 to Enclosure 3, it notes that the PEB will render a final decision on whether an injury or disease that makes the service-member unfit was incurred in combat with an enemy of the United States, was the result of armed conflict, or was caused by an IOW during war.  Occurrence during a period of war is not a requirement to qualify.  

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

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 13 July 2016 for review and comment within 30 days (Exhibit G).  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 timely filed.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice.  We took notice of the applicant’s complete submission, to include his rebuttal, in judging the merits of the case; however, we agree with the opinions and recommendations of AFPC/DPFDD and AFPC/JA and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice.  In this regard, the Board empathizes with the applicant’s circumstances of being exposed to and viewing horrific tragedies and was understandably traumatized; however, the Board is convinced by the AFPC/JA opinion that the DOMEX equipment itself is not an IOW; thus, the DOMEX was not the direct cause of his medical condition.  Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief.

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-2015-01669 in Executive Session on 22 September 2016 under the provisions of AFI 36-2603:

	, Panel Chair
	, Member
	, Member

The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-01669 was considered:

	Exhibit A.  DD Form 149, dated 15 Apr 15, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPFDD, dated 14 Aug 15.
	Exhibit D.  Letter, SAF/MRBR, dated 23 Oct 15.
	Exhibit E.  Letter, Applicant, dated 9 Nov 15, w/atchs.
	Exhibit F.  Memorandum, AFPC/JA, dated 29 Jun 16.
	Exhibit G.  Letter, AFBCMR, dated 13 Jul 16.

Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified that a quorum was present at the Board's review and deliberations, and that the foregoing is a true and complete record of the Board's proceedings in the above entitled matter.