RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2017-04815

	COUNSEL: NONE

	HEARING: YES

APPLICANT REQUESTS THAT:

His AF Form 356 be changed:

a)  Section 9F, Combat Related Determination as Defined in 26 USC 104, from No to Yes and;

b)  Section 10E, Disability was incurred in a Combat Zone or incurred during the performance of duty in combat-related operations as designated by the Secretary of Defense (NDAA, Sec 1646)

APPLICANT CONTENDS THAT:

His injuries occurred while flying a C-130 in combat during his 2015 deployment while wearing night vision goggles (NVGs).  The applicant references the remarks section on his AF Form 356, claiming the statements reflect his injuries occurred in combat and in a combat zone.  The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

The applicant is a medically retired Air Force major.

On 16 Mar 01, Standard Form 83, question 21 states that the applicant was diagnosed with degenerative lumbar discs at the age of 18, existing prior to service (EPTS).

On 07 Jan 16, the applicant received a Line of Duty Determination that his diagnosis of Cervicalgia occurred in the line of duty, again noting that the condition existed prior to service and was aggravated by the use of NVGs.

On 13 Dec 16, the Commander’s memo to the Medical Evaluation Board (MEB)/Physical Evaluation Board (PEB), under Deployment Related Illnesses/Injuries section, question 1, states the applicant was not deployed when the injury/illness occurred.  However, under additional questions for Air Reserve Component (ARC) members, question 2, it further states the applicant was in military status when the medical condition was first diagnosed under Title 10 Activation Orders.

On 16 Jun 17, the Department of Veterans Affairs (DVA) rated the applicant a combined compensable disability rating of 30 percent.

On 27 Jun 17, an Informal PEB concluded the applicant’s Category I – Unfitting Condition of Cervicalgia due to Spondylosis of the Cervical Spine, was not combat related and was not incurred in a combat zone or incurred during the performance of duty in combat-related operations as designated by the Secretary of Defense (NDAA 2008, Sec 1646).  The Informal PEB applied the DVA rating of 30 percent combined compensable disability rating with permanent retirement.

On 28 Jun 17, the applicant agreed with the findings and recommendation disposition of the Informal PEB.

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisory at Exhibit C.

AIR FORCE EVALUATION:

AFPC/DPFDD recommends denying the applicant’s request to show his AF Form 356 reflect combat-related.  The applicant’s request to change his AF Form 356 to reflect a combat-related determination is unsubstantiated.  The fact that he aggravated an injury that existed prior to service, in an area of armed conflict, while participating in combat operations or during a period of hazardous service is not sufficient by itself to support combat-related determination.  There must be a definite, documented, casual relationship between the armed conflict and the resulting disability.  However, AFPC/DPFDD recommends an amendment to the AF Form 365 to read combat-zone, not combat-related.  The complete advisory is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board sent a copy of the Air Force evaluation to the applicant on 12 Mar 18 for comment (Exhibit D), but has received no response.

THE BOARD CONCLUDES THAT:

1.  The application was timely filed.

2.  The applicant exhausted all available avenues of non-judicial relief before applying to the Board.

3.  After thoroughly reviewing all Exhibits, it is the Board’s opinion that the applicant is not the victim of an error or injustice with regard to changing Section 9F, Combat Related Determination as Defined in 26 USC 104, from No to Yes.  The Board concurs with the rationale and recommendation of AFPC/DPFDD and finds that a preponderance of the evidence does not substantiate the applicant’s contentions.

4.  However, the Board further agrees with the AFPC/DPFDD opinion that the applicant is the victim of an error or injustice with regard to his Physical Evaluation Board finding, item 10E.,  Disability was incurred in a Combat Zone or incurred during the performance of duty in combat-related operations as designated by the Secretary of Defense (NDAA, Sec 1646) should reflect “Yes.”  Therefore, the Board recommends correcting the applicant’s records as indicated below.

5.  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 the Board’s understanding of the issues involved.

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show injury was incurred in “combat-zone, not combat-related” as such that AF Form 356, Section 10E, Disability was incurred in a combat zone or incurred during the performance of duty in combat-related operations as designated by the Secretary of Defense (NDAA 2008, Sec 1646), dated 27 June 2017, reflect “Yes.”

However, regarding the remainder of the applicant’s request, the Board recommends the applicant be informed the evidence did not demonstrate material error or injustice and the application could only be reconsidered upon receipt of relevant evidence not already considered by the Board.

The application was adjudicated without a personal appearance.

CERTIFICATION:

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2017-04815 in Executive Session on 8 May 18:

, Panel Chair 
, Panel Member
, Panel Member

The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 02 Nov 17.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DPFDD, dated 04 Jan 18.
Exhibit D:	Notification of Advisory, SAF/MRBC to applicant, dated 12 Mar 18.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings required by AFI 36-2603, paragraph 4.11.9 for Docket Number BC-2017-04815.