RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2019-04811

XXXXXXXXXX AKA	COUNSEL: NONE
	
 	HEARING REQUESTED: YES

APPLICANT’S REQUEST

Her retirement orders be corrected to show that her disability incurred in the 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 as stated on her AF Form 356, Section 10D. 

APPLICANT’S CONTENTIONS

Her military medical retirement occurred due to her deployment in 2010, which resulted in constant severe migraines with debilitating pain in her right shoulder, arm and neck.  She wants her retirement order corrected to reflect the statement “Disability 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” to “YES” as noted on her AF Form 356,Section 10D.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a retired Air Force reserve major (O-4) receiving retired pay.

Per AF Form 356, Findings and recommended Disposition of USAF Physical Evaluation Board, dated 11 Aug 14, Block 9F, indicates the applicant’s medical conditions was not combat related. 
Block 10D, indicates the applicant’s disability was incurred in line of duty in time of war or National Emergency after 14 Sep 78.

Special Order Number ACD-00026, dated 7 Oct 14, indicates the applicant was permanently disability retired effective 29 Oct 14 in the grade of major after serving 27 years, 4 months and 6 days of service for basic pay.  The order also indicates the applicant’s 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 or was 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.

AIR FORCE EVALUATION

AFPC/DPFDD recommends denying the application.  IAW DoDI 1332.18 dated 5 Aug 14, the applicant’s disability does not qualify as “combat related,” as defined in 26 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 reviewed the physical evaluation board narrative summary and found no such evidence.  Per the AF Form 356 dated 11 Aug 14, Section 9F is marked “NO” for the Category I, Unfitting Condition, to indicate that the disability was not considered combat related.  Furthermore, Section 10E was also marked “NO” to indicate the disability 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).  Section 10D was marked “YES” to show that the disability was incurred in the line of duty in time of war or national emergency after 14 Sep 78 but does not mean that the disability was considered combat related.

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 15 Jul 20 for comment (Exhibit D), and the applicant replied on 15 Aug 20.  In response, the applicant disagreed with the advisory opinion.  She contends that she did not have complications after her 2007 neck surgery as she was cleared and returned to duty.  She deployed to Iraq in 2010 and the migraines as well as neck and shoulder issues started in July after having to wear Individual Body Armor (IBA) due to the increase of improvised explosive devices (IEDs).  After returning from deployment, her migraines, arm and shoulder pain continued.  Since her MEB, she had three additional neck surgeries.  Because the correct surgery she actually needed was completed nine years after the injury, the Surgeon informed her she would always have some residual pain and migraines due to the nerve damage.  She has pulsating pain as well as migraines based on her level of exercise and activity.

The applicant’s complete response is at Exhibit E.

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.

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-2019-04811 in Executive Session on 15 Jul 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 12 Sep 19.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DPFDD, dated 6 Jan 20.
Exhibit D:	Notification of advisory, SAF/MRBC e-mail to applicant, dated 15 Jul 20.
Exhibit E:	Applicant’s response, dated 15 Aug 20.

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.