RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2019-04080

XXXXXXXXXXXXXXXXXX	COUNSEL: NONE	

  	HEARING REQUESTED: YES

APPLICANT’S REQUEST

Her retirement order show “Yes” that her disability was received in the line of duty (LOD) as a direct result of armed conflict or caused by an instrumentality of war and incurred in the LOD during a period of war; and that her disability was the direct result of a combat related injury as defined in 26 U.S.C § 104.  

APPLICANT’S CONTENTIONS

Her retirement was the direct result of combat duty in Balad, Iraq in 2006.  Prior to this deployment, she had no medical concerns.  The daily mortar attacks directly caused a deterioration of her mental condition resulting in a traumatic brain injury (TBI) and post-traumatic stress disorder (PTSD).  Her asthma was also caused by an instrumentality of war, during a period of war and the burn pits.  Her concurrent receipt of special compensation (CRSC) was approved and she requests her orders be updated and her pay be adjusted.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a retired Air Force master sergeant (E-7).  

A medical evaluation board (MEB) convened on 11 Mar 14 referred the applicant to the informal physical evaluation (IPEB) for her unfitting conditions of mood disorder and asthma.  The Chronological Record of Medical Care dated 18 Nov 13, states the applicant was not directly involved in any combat operations, nor was she physically injured as a result of hostile actions.  The evaluator stated it was clear she suffered from significant mood symptoms and was in treatment for depression, mood lability and anger issues for nearly 10 years.  

On 17 Jul 14, the IPEB recommended the applicant be placed on the temporary disability retired list (TDRL) for unfitting conditions of PTSD (incurred in a combat zone, not combat related) and asthma with a compensable rating of 80 percent.  The IPEB noted the applicant had a long history of mood symptoms for which she had intermittent treatment since 2005.  She deployed to Balad for 4 months in 2006 and reported frequent mortar attacks to the base in which she feared for her life.  She initially did well following her return; however, when exposed to difficult workplace environments, she experienced regression of symptoms of anxiety, depression and anger.

Per Special Order ACD-03300 dated 22 Aug 14, the applicant was discharged on 28 Dec 14 and placed on the TDRL effective 29 Dec 14 for physical disability with a compensable rating of 80 percent.  

On 15 Oct 15, the IPEB recommended the applicant be removed from the TDRL and be permanently retired for her unfitting conditions of PTSD (combat zone, not combat related) and asthma with a compensable rating of 80 percent.  

Per Special Order ACD 00841 dated 5 Jan 16, the applicant was removed from the TDRL and retired in the grade of MSgt with a compensable percentage of 80 percent for physical disability.  The order reflects the disability was not received in the LOD as a direct result of armed conflict or cause by an instrumentality of war and incurred in line of duty during a period of war.  The order also reflects the disability was not the direct result of a combat related injury as defined in 26 U.S.C. § 104.  

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 denial.  The applicant’s disability does not qualify as “combat related” in accordance with DODI 1332.18, Disability Evaluation System (DES), 5 Aug 14.  There must be a definite, documented, causal relationship between a combat-related event/incident while in service and the resulting disability.  The applicant contends her unfitting conditions of PTSD and asthma should have been deemed combat related since they were the direct result of her deployment to Balad AB, Iraq in 2006.  The PEB noted she had a long history of mood symptoms and interpersonal difficulty going back to at least 2004.  The narrative summary (NARSUM) of her MEB reported the main triggers were difficulties in her work environment.  The providers believed her symptoms were due to traumatic experiences she endured in her deployment, therefore, the PEB deemed her PTSD was incurred in a combat zone.  However, the PEB opines that in order for an unfitting condition to be deemed combat related, the mortar or rocket propelled grenade (RPG) blasts must be in close proximity, which is not evident in this case.  The PEB also did not find any evidence she was injured or hospitalized and diagnosed with a TBI while deployed to Balad.

The applicant also contends her asthma should be combat related due to the burn pits being an instrumentality of war.  DODI 1332.18 defines a combat related disability caused by an instrumentality of war as a result of wounds caused by a military weapon, accidents involving a military combat vehicle, injury or sickness caused from fumes, gases or explosions of military ordnance, vehicles or material.  There must be a direct causal relationship between the instrumentality of war and the disability.  The Secretary of Defense has deemed that exposure to burn pits is not considered an instrumentality of war or hazardous service.  

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 16 Mar 20 for comment (Exhibit D), but has received no response.

FINDINGS AND CONCLUSION

1.  The application was not timely filed.

2.  The applicant did not exhaust 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.

4.  The applicant has not shown a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved.

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-2019-04080 in Executive Session on 15 Apr 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, dated 9 Aug 19.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DPFDD, dated 26 Nov 19. 
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 16 Mar 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.