RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  01-02632
		INDEX CODE:  108.08
		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His disability retirement be corrected to show that his medical condition was the result of an "instrumentality of war during a period of armed conflict."

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APPLICANT CONTENDS THAT:

He was denied the benefit of having his military enlistment time credited for federal service retirement because his records do not reflect the medical findings of the Department of Veterans' Affairs (DVA).  The DVA documented his disability as service-connected but the U.S. Postal Service Human Resource Director says that he must have a statement from the Air Force indicating his disability occurred as an instrumentality of war during a time of war. 

In support of his request, applicant provided a letter from the DVA, a certificate of his combat missions in Southeast Asia, a letter from the U.S. Postal Service; a copy of his PS Form 50, Notification of Personnel Action; and copies of his DD Forms 214, Report of Separation from Active Duty.  His complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 11 Jan 61.  He was progressively promoted to the grade of master sergeant.  From 16 Dec 67 through 10 Mar 69, he served as an HH-3E Flight Engineer assigned to a rescue and recovery squadron in Thailand.

An MEB was convened on 24 Mar 76 and referred his case to an Informal Physical Evaluation Board (IPEB) with a diagnosis of Schizophrenic reaction, paranoid type, with definite impairment of social and industrial adaptability.  The IPEB found him unfit for further military service and recommended that he be permanently retired with a 30 percent disability rating.  The applicant disagreed with the findings and recommended disposition of the IPEB.  After further explanation of the IPEB findings and consult with his counsel, he elected to waive his earlier election for a formal hearing.  He was permanently retired on 25 May 76.  He served 15 years, 4 months, and 15 days on active duty
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AIR FORCE EVALUATION:

AFPC/DPPD recommends denial of the applicant's request.  DPPD states that he was diagnosed with Schizophrenia on 24 Mar 76 while assigned to MacDill AFB, FL.  His MEB makes no mention that his condition was the direct result of an armed conflict or an instrumentality of war.  The IPEB findings, which he reviewed and agreed upon, also states that the disability was not the direct result of an armed conflict or instrumentality of war.  

The documentation he provided appears to infer that his medical condition was the result of his assignment to Southeast Asia.  His personnel records contain a performance report for the period 16 Dec 67 through 10 Mar 69, which reflects that he bravely performed as a Flight Engineer in a Rescue and Recovery Squadron stationed in Thailand, for which he was credited with 98 combat hours and completing 46 rescue sorties.  Subsequent performance reports following his assignment in Thailand for the period March 1969 through November 1975 clearly show that he was fully capable of performing his military duties as a Helicopter Technician and afterward as an Airframe Repair Specialist.

He was treated fairly throughout the disability evaluation process and was properly rated under federal disability guidelines.  The circumstances involving his acquired unfitting medical state do not fall under the instrumentality of war criteria.  There is no justification that would require his records be corrected to reflect that his medical condition was the direct result of an instrumentality of war.  The DPPD evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant states as defined in Title 38, the term "incurred in combat with an enemy of the United States or caused by an instrumentality of war and incurred in the line of duty during a period of war" applies to his service-connected rating from the DVA.  He is 30 percent socially and industrially disabled as a result of his military service.  The disability did happen in the military.  The DVA clearly states that he is service-connected as caused by or aggravated by the military during his enlistment from January 1961 to May 1976 in the line of duty.  The Air Force construed his service-connected disability was not caused by or aggravated by his service during the Vietnam War.  Today the DVA is still taking claims related to Agent Orange from the Vietnam War era because medical conditions are just now showing up.  Six years after he was in Vietnam the DVA made the decision and treated him for his disability that was incurred or effected by military service.  Although he doesn't have a statement that says why he was rated service-connected, it is clear that the DVA was relying on Section 1154 of Title 38 because he was in combat at one point and time during his military service.  The DVA indicated that his acquired unfitting medical state was incurred or aggravated by the circumstances involving his military service.  As implied by DPPD, there were no negative circumstances on his part.  By using the word "acquired" DPPD is implying he was in control of getting his illness.  DPPD stated that he reviewed and agreed that his disability was not a direct result of war or instrumentality of war.  If that is in writing, it is not fair.  DPPD is using his other periods of service and neglecting the Vietnam Era.  He joined the Air Force one month after the Vietnam War started and was separated one year after the war ended.  All but 13 months of his service was during the war era.  

In support of his request, applicant provided excerpts from Titles 01 and 38 U.S.C, extracts from his medical records, letters from the DVA, and additional copies of documents previously submitted.  His complete submission, with attachments, is at Exhibit E.

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ADDITIONAL AIR FORCE EVALUATION:

USAF/JAG recommends denial of applicants request as untimely.  If considered on its merits, JAG recommends denial of his request.  JAG states that on 2 Feb 76 he was admitted to the hospital in a psychotic state.  During his month long hospitalization he underwent intensive evaluation and at no time did he relate or causally connect his mental and emotional disorder to his Southeast Asia service.  In fact, according to the applicant, the genesis of his mental and emotional problems began in September 1975 and he attributed them to changes and stress on the job, stress at work which had been building up, and worry about his pending promotion to master sergeant and the increased responsibility involved with that.  

For disability determination purposes, a disability received as a direct result of armed conflict has a very specific and limited meaning.  To qualify, there must be a definite causal relationship between the armed conflict and the unfitting disability.  Consequently, a disability may be incurred during a period of war, in an area of armed conflict, or while participating in combat operations, but not be classified as a disability received as direct result of armed conflict.  For disability purposes, an instrumentality of war would include a device designed primarily for military service and used as such at the time of the injury.  It may also include a device not designed primarily for military service if its military use differs from its use under similar circumstances in civilian pursuits.  His records fail to establish that his service-connected disability was the direct result of armed conflict, or caused by an instrumentality of war during a period of war.  The JAG evaluation is at Exhibit F.

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APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

A copy of the additional Air Force evaluation was forwarded to the applicant on 23 Oct 02 for review and comment within 30 days.  As of this date, this office has received no response.

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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, evidence has not been presented which would lead us to believe that his medical condition which resulted in the recommendation that he be medically retired from the Air Force by reason of medical disability, was the direct result of armed conflict or an instrumentality of war.  We are compelled to note that there is a definitive difference between a service-connected condition and a condition being the result of an instrumentality of war or occurring during armed conflict.  A disability is considered service-connected when it was incurred during a period of active military service and/or the condition was aggravated during active military service.  A condition is considered to be the result of an armed conflict when the defect was incurred in the line of duty as a direct result of an armed conflict.  The mere presence in an area of an armed conflict or simply being in active military service during a period of armed conflict, does not in itself, mean that a condition was the result of an armed conflict.  To be the result of an instrumentality of war, the condition or defect must have been incurred as a direct result of an instrument of war during a period of war.  Evidence has not been presented which would lead us to believe that his condition was incurred as a result of an armed conflict or that it was the result of an instrumentality of war.  Therefore, 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.  In the absence of evidence to the contrary, we find no 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 01-02632 in Executive Session on 26 Mar 03, under the provisions of AFI 36-2603:

	Vice Chair
	Member
	Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 8 Sep 01, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPD, dated 17 Oct 01.
    Exhibit D.  Letter, SAF/MRBR, dated 26 Oct 01.
    Exhibit E.  Letter, Applicant, dated 21 Jan 02, w/atchs.
    Exhibit F.  Letter, USAF/JAG, dated 17 Oct 02.
    Exhibit G.  Letter, SAF/MPBC, dated 23 Oct 02.