AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

IN THE MATTER OF: 

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DOCKET NO: 97-02934 
COUNSEL: None 
HEARING DESIRED: No 

MAY 2 9 1998 

Applicant requests that his two DD Forms 214  (Report of Transfer 
or  Discharge)  and  his  two  DD  Forms  424  (Certification  of 
Information  for  Retirement  Pay)  be  amended  to  show  that  his 
disability,  for which he was permanently retired, was a combat- 
related  injury  so  that  his  3  years,  5  months  and  23  days  of 
military  service time  can be  credited toward his Civil Service 
Retirement.  Applicant's submission is at Exhibit A. 
The  appropriate Air  Force  office  evaluated  applicant's  request 
and provided  an advisory opinion to  the  Board  recommending the 
application  be  denied  (Exhibit C).  The  advisory  opinion  was 
forwarded to the applicant for review and  response  (Exhibit D). 
Applicant's  response to the advisory opinion is at Exhibit E. 

After  careful  consideration  of  applicant's  request  and  the 
available  evidence of  record, we  find  insufficient  evidence of 
error or injustice to warrant  corrective action.  The facts and 
opinions stated in the advisory opinion appear to be based on the 
evidence  of  record  and  have  not  been  sufficiently rebutted  by 
applicant. 
Absent  persuasive  evidence  applicant  was  denied 
rights  to  which  entitled,  appropriate  regulations  were  not 
followed, or appropriate standards were not applied, we  find no 
basis to disturb the existing record. 

Accordingly, applicant's request is denied. 
The Board staff is directed to inform applicant of this decision. 
Applicant should also be informed that this decision is final and 
will only be reconsidered upon the presentation of new relevant 
evidence  which  was  not  reasonably  available  at  the  time  the 
application was filed. 
Members  of  the  Board  Mr.  Thomas  S.  Markiewicz,  Mr.  David  W. 
Mulgrew, and Mr.  Henry Romo,  Jr.  considered this application in 
Executive  Session  on  10  April  1998  in  accordance  with  the 
provisions  of Air  Force  Instruction 36-2603, and  the  governing 
statute, 10, U.S.C. 1552. 

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Panel Chair 

Exhibits : 
A.  Applicant's DD Form 149 
B.  Available Master Personnel Records 
C.  Advisory Opinion 
D.  AFBCMR Ltr Forwarding Advisory Opinion 
E.  Applicant's Response 

SUBJECT: Application fbr correctioa of 

REQUESTED ACTION:  Applicant requests correction of his retirement orders (both temporary 
and permanent) and all resulting forms to reflect that his disability was combat related and in line of duty 
during a period of war in order to obtain credit for military service towards a Federal Civil Service 
retirement. 

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FACTS:  The applicant was placed on the Temporary Disability Retired List (TDRL) effective 

asypensable rating of I00 percent due to diagnoses of tuberculosis, pulmonary, and 

schizophrcnic reaction. acute. after serving 3 years, 5 months and 23 days on active duty.  He WIIS 
reevaluated in June 59 and permanently retired for disability with a compensable rating of SO percent 
effective 3 1 Jut  59. 

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DISCUSSION:  The purpose of the military disability system is to maintain a M and vital f m e  by 

separating members who are unable to perfom the duties of the grade, office, rank or rating. Those 
members who are separated or retired by reasofi of physical disability may be eligible,  for certain 
disability compensations.  Eligibility for disability processing is established by a M a d i d  Evaluation B o d  I 
(MEB) when the board finds that the member may not be qualified for continued military service.  The 
decision to conduct an MEB is madc by  the medical treatment facility providing care to the member. 

Applicant served in Korea beginning on 9 Mar 55 and in Japan on  19 Jan 56.  While serving in 

Japan and undergoing a routine examination. it was discovered that the applicant had pulmonary 
tubcrculosis.  In May 57, while on convalescent leave from an Army hospital, the symptoms of his 
schizophrcnic reaction bcgan lo surface.  Subsequently his MEB was convened and he was placed on the 
TDRL. 

Applicant believes his disability should be rated as combat-related because his illness took place 
under conditions simulating war, including training exercises such as maneuvers during aperiod of war. 
He states, “This  veteran’s illness was incurred while serving in a extra-hazardous service area or combat 
zone to protect that zone against aggression by an enemy of the United States.” 

DoDl  1332.38, Nov 14, 1996, Part 5, has clearly defined the criteria for determining  whether or 
not a member’s condition was “combat-related”, caused by an “instrumentality of  war”,  and/or the result 
of  “armed conflict” and the type of benefits that may be obtainable,  as follows: 

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A.  Administrative Determinations for Purposes of Employment under Federal 
Civil  Service.  Physical  disability  evaluation shall  include  a  recommendation or  final 
decision  and  supporting documentation on whether the  injury or disease that make the 
member unfit or that contributes to unfitness was  incurred in combat with an enemy of 
the  United  States;  or  was  the  result  of  armed  conflict;  or  was  caused  by  an 
instrumentality or war during a period of war,  (These determinations p e d n  to whether 
a military  retiree later employed under  Federal Civil Service is entitled to the following 

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benotits;  credit of m i l k y  ldnicb towanla  I Fsdarl CMI 
5  U.S.C.  8332, ratation profcrsnce  under  5  U.S.C.  3502, 
compensation  provbiw of  S U.S.C.  5532,  aed credit  of 
Service annual leave accrual undsr 5 U.S.C. 6303.) 

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the u. s. state Dopnrtment. 

result  of armed conflict.  The fact that a member may hava hatnad 8 
disability during a period of war or in an area of mad conflict, or while 
participating in combat operations is not sufficient to support this finding. 
There  must  be a definite cutuul relationship  between the armed conflict 
and the resulting unfitting disability. 

3.  Instrumentality  of  War  During  a  Period  of  War (5  U.S.C. 
3502,  5532,  6303,  8332).  The  injury  or  disease  is  caused  by  an 
instrumentality of war and incurred in  the line of duty during a pcriod of 
war as delilied in 38 U.S.C. 101 and ?02 U.S.C. Instrumentality of War. 
A  vehicle. vessel,  or device designed  primarily  for Military Service and 
intended  for  use  in  such  Service  at  the  time  of  the  occurrence  of  the 
injury.  It may also be a vehicle, vessel, or device not designed primarily 
for Military  service  if  use  of  or  occurrence  involving  such  a  vehicle, 
vessel, or device subjects the  individual to  a hazard  peculiar to Military 
Service.  This use or occurrence differs from the use or o c c u m c e  tinder 
similar circumstances in  civilian pursuits.  There must be a direct carnal 
relationship  between  the  use  of  the  instrumentality  of  war  and  the 
disability, and the disability must be incurred incident to a hazard or risk 
to  the service.  Applicable  periods arc:  ... Korca -  The period  beginning 
27 June 1950 and ending 3 I  January 1955 .... 

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U.  Dotcrniinations  for  Fcderal  T~LI Benefits.  Physical  disability  evaluation  shall 
include a dctermination and supporting documentation on whether the member's physical 
disability compensation is excludcd from Federal gross income under 26 U.S.C. IW.... 

I .   e. On  24  Sep  75  the  individual  was  member  of  the  Armed 
Forces. ... 
2.  Combat-related.  This standard covers  those  injuries  and diseases 
attributable to the special dangers associated  with  armed  conflict  or the 
preparation or training for armed conflict.  A physical disability  shali be 
considered combat-related if it makes the member  unfit or contributes to 
unfitness and was incurred under any of the circumstances listed in B.2.a. 
through 82.d., below. 

a.  As a direct result of armed conflict ....( same as above). 

b.  While engaged in hazardous service.  Such service includes, 
but  is  not  limited  to,  aerial  flight duty. parachute  duty, demolition duty, 
experimental stress duty, and diving duty. 

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grenade and  live  fire  weapons  practice, bayonet training, hand-to-hand 
combat  mining.  repelling,  and negotiation of  cwnblt cootidepc# md 
obstacle courses.  It does not include Physical minh and actfvItl&&h 
as calisth 

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d.  Caused by m ' ' ~ e n t a l i t y  of war.  Incurred during a 
period of w(v is not required,  A Favorable detenniantion ir made if the 
disability was  incurred during rory period of service  Y a result 
diverse  causes  89  wounds  cawed  by  n  milky  WOIIPOO, 
involving a military combat vehicle, injury, or sickness cawed by =ea, 
gases,  or  explosion  of  military  ordinance,  vehicles,  or  rnatu'ial. 
However,  there  must  be  a  direct  cuusul  relationship  between  the 
instrumentality  of  war  and  the  disability.  For  example,  an  injury 
resulting from  a  Service  member  falling on the  deck  of  a  ship  while 
participating in  a  sport  activity  would  not normally  be  considered  an 
injury  caused  by  an  instrumentality of  war  (the  ship) since the  sports 
activity and  not  the  ship caused  the  fall.  The  exception occurs  if  the 
operation of the ship caused the fall. 

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After a thorough review of the applicant's case tile, we found no errors or irregularities.  His 
disability case was correctly processed. his condition appropriatdy rated, and he was afforded all rights to 
which he was entitled under department directives and law.  Neither his pneumonia nor schizophrenia 
qualify under the above provisions of Administrative Detenninations for the Purpose of Employment with 
Federal Civil Service.  His illness was not incuyed in combat with the enemy, due to m e d  conflict, or 
caused by an instrumentality of war.  Further, he started his tour in Korea after the official end of the war 
on 31 Jan 55. 

appears to apply to Civil Service bcnefits.  It applies only to the federal tax benefits. This portion does not 
mcmbcr as his Air Force rotircmcnt payment is non-taxable since he retired before 25 Sep 75 
elieve hc quolifics under the criteria set forth. 

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A Chief, USIF Physical Disability Division 

Dir of Pen Prog Mgt 

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