RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: 00-00020
COUNSEL: NONE
HEARING DESIRED: NO
APPLICANT REQUESTS THAT:
His records be corrected to show that his disability was incurred in the
line of duty and caused by an instrumentality of war.
APPLICANT CONTENDS THAT:
His medical condition severely deteriorated during the period he was
ordered to active duty in support of Operation Desert Storm.
The applicant states that based on a previous application to the Board, his
records were corrected to show that he was retired from active duty by
reason of physical disability, with a rating of 30%. As a result, he was
required to make a very large annuity refund, and lost about one fourth of
his monthly civil service annuity. Because he was retired with an active
duty disability annuity, rather than a retired reserve annuity, he was not
eligible to utilize his initial four year active duty time during civil
service annuity computations.
The applicant’s complete submission is attached at Exhibit A.
STATEMENT OF FACTS:
The relevant facts pertaining to this application, extracted from the
applicant's military records, are contained in the letter prepared by the
appropriate office of the Air Force. Accordingly, there is no need to
recite these facts in this Record of Proceedings.
AIR FORCE EVALUATION:
The Chief, Special Actions/BCMR Advisories, AFPC/DPPD, reviewed the
application and states that applicant’s request to have his disability
retirement order amended to reflect his medical condition was the result of
an instrumentality of war does not meet the definition and intent stated in
AFR 35-4 in effect at the time of his disability processing. AFR 35-4
states that an instrumentality of war determination is only made when the
physical defect or condition is caused by an instrumentality of war,
incurred in the line of duty during a period of war, and that the defect or
condition, standing alone, makes the member unfit. The applicant’s medical
condition at the time of his initial disability discharge and his
succeeding disability retirement does not qualify him under this ruling.
AFPC/DPPD states that applicant’s objective for having his records changed
is to assist him in receiving civil service credit annuity computations for
his active duty service. The applicant has not submitted any material or
documentation to reflect that the retirement order was incorrect at the
time of his disability retirement. Therefore, they recommend the
application be denied.
A complete copy of the Air Force evaluation is attached at Exhibit C.
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
The applicant reviewed the Air Force evaluation and states that his
activation in support of the Gulf War was both directly and indirectly
instrumental in causing his permanent disability. As such, his condition
was caused by an instrumentality of war. The Officer of Personnel
Management (OPM) determined that he was not authorized to use his initial
active duty time in civil service retirement computation, because he was
retired from active duty, rather than the reserves. However, he had no
control over this and as a result, has been financially penalized for
becoming physically unfit, through no fault of his own, during a period of
war.
The applicant’s complete response is attached at Exhibit E.
THE BOARD CONCLUDES THAT:
1. The applicant has exhausted all remedies provided by existing law or
regulations.
2. The application was timely filed.
3. Insufficient relevant evidence has been presented to demonstrate the
existence of probable error or injustice. We took notice of the
applicant's complete submission in judging the merits of the case; however,
we agree with the opinion and recommendation of the Air Force and adopt
their rationale as the basis for our conclusion that the applicant has not
been the victim of an error or injustice. Therefore, in the absence of
evidence to the contrary, we find no compelling basis to recommend granting
the relief sought in this application.
THE BOARD DETERMINES THAT:
The applicant be notified that the evidence presented did not demonstrate
the existence of probable material error or injustice; that the application
was denied without a personal appearance; and that the application will
only be reconsidered upon the submission of newly discovered relevant
evidence not considered with this application.
The following members of the Board considered this application in Executive
Session on 21 June 2000, under the provisions of AFI 36-2603:
Mr. Thomas S. Markiewicz, Panel Chair
Ms. Nancy W. Drury, Member
Ms. Diana Arnold, Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 28 Dec 99, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, AFPC/DPPD, dated 13 Mar 00.
Exhibit D. Letter, SAF/MIBR, dated 31 Mar 00.
Exhibit E. Letter, Applicant, dated 4 Apr 00, w/atch.
THOMAS S. MARKIEWICZ
Panel Chair
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