RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2019-02838

XXXXXXXXXXXXXXX	COUNSEL: NONE

	HEARING REQUESTED: NO

APPLICANT’S REQUEST

His medical retirement order be corrected to reflect his disability was received as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a period of war in order to receive Combat Related Special Compensation.

APPLICANT’S CONTENTIONS

His injury was incurred in the line of duty during a simulated war exercise at Nellis Air Force Base, Nevada, in Jul 92.

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

STATEMENT OF FACTS

The applicant is a permanently disability retired Air Force senior airman (E-4).

On 26 Oct 94, the MEB recommended the applicant be referred to the Informal Physical Evaluation Board (IPEB).

On 16 Nov 94, the IPEB determined the applicant’s varus deformity right foot with degenerative changes mid foot and subtalar joints, status post motor vehicle accident Jul 92 with fractures and wedge osteotomy Sep 93; Existed Prior to Service (EPTS) with service aggravation; and EPTS factor unascertainable, was unfitting with 30 percent disability rating and recommended permanent retirement.  The IPEB also indicated the disability was not the direct result of armed conflict or caused by an instrumentality of war and incurred in line of duty during a period of war and was not the direct result of a combat related injury.

On 14 Dec 94, after further consideration and counsel from his legal representative, the applicant waived his right to a Formal Physical Evaluation Board (PEB) hearing for the purpose of concurring with the IPEB recommended finding.

According to Special Orders No. ACD-0809, dated 14 Feb 95, the applicant was permanently disability retired with compensable percentage for physical disability of 30 percent and indicated the disability was not received in line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred in line of duty during a period of war and was not the direct result of a combat related injury, effective 15 Feb 95.

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 application.  There is no indication that an error or injustice occurred at the time the PEB processed the applicant’s disability case.  The applicant’s disability currently does not qualify as “combat related,” as defined in 26 United States Code (U.S.C.) 104.  There must be a definite, documented, causal relationship between a combat-related event/incident while in service and the resulting disability.  The physical evaluation board narrative summary included in the applicant’s master military personnel record was reviewed and no such evidence was found.  According to the narrative summary, the applicant had a long history of right foot problems dating back to childhood.  It was additionally noted that the applicant incurred an additional injury while involved in a motor vehicle accident in approximately Jul 92.  There was no indication that the applicant received an injury while involved in a base exercise.  Due to the lack of documentation, his condition would not be categorized as “combat-related,” therefore a correction to the retirement order is not warranted.

The complete advisory opinion is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 18 Sep 19 for comment (Exhibit D), but has received no response.

FINDINGS AND CONCLUSION

1.  The application was not timely filed.

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

3.  After reviewing all Exhibits, the Board concludes the applicant is not the victim of an error or injustice.  The Board concurs with the rationale and recommendation of AFPC/DPFDD and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The Board also notes the applicant did not file the application within three years of discovering the alleged error or injustice, as required by Section 1552 of Title 10, United States Code, and Air Force Instruction 36-2603, Air Force Board for Correction of Military Records (AFBCMR).  While the applicant asserts a date of discovery within the three-year limit, the Board does not find the assertion supported by a preponderance of the evidence.  The Board does not find it in the interest of justice to waive the three-year filing requirement.  Therefore, the Board finds the application untimely and recommends against correcting the applicant’s records.

RECOMMENDATION
The Board recommends informing the applicant the application was not timely filed; it would not be in the interest of justice to excuse the delay; and the Board will reconsider the application only upon receipt of relevant evidence not already presented.

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-2019-02838 in Executive Session on 20 May 20:

, Panel Chair
, Panel Member
, Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 17 May 19.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DPFDD, dated 4 Sep 19.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 18 Sep 19.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings, as required by AFI 36-2603, paragraph 4.11.9.