RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:            DOCKET NUMBER:  00-00141

                 COUNSEL:  THEODORE C. JARVI

                 HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

Her late husband’s records be corrected to show his death was  in  the  line
of duty and she receive payment for an  additional  flying  training  period
(AFTP) that he performed on 5 August 1983.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Her husband was in a duty status at the time of his death.

The applicant states that her husband performed an  AFTP  on  5 August  1983
and remained overnight in the local area due to  a  unit  training  assembly
(UTA) the next day, 6 August 1983.  On 6 August 1983, he  died  while  in  a
duty status.  However, his death was listed as being in a non-duty status.

The applicant’s complete submission is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

On 5 August 1983, while performing inactive duty training (IDT) as a  member
of the North Carolina Air National Guard (NC ANG), the  member  participated
in a two-hour evening flight in a C-130B aircraft as a flight  surgeon.   He
was scheduled to perform another IDT flight on 6 August 1983.

In accordance with AFR 60-1, aircrew members, to  include  flight  surgeons,
are required to have  a  minimum  of  12  hours  rest  (i.e.,  4  hours  for
transportation/meals and 8 hours of uninterrupted  rest).   ANGR  60-1,  the
ANG supplement to AFR  60-1,  specifies  that  crew  rest  requirements  are
reduced by two hours if the member is billeted in  close  proximity  to  the
squadron.

On 6 August 1983, the member was found dead in his contract  quarters  hotel
room still wearing his flight suit.  The cause of his death  was  listed  as
arteriosclerotic heart disease.  No LOD determination was completed.

The remaining relevant facts pertaining to this application, extracted  from
the member’s military records, are contained in the letters 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, Personnel Operations Branch, ANG/DPPU, reviewed  the  application
and states that the applicant died on 6 August 1983 in  a  non-duty  status.
There is no evidence or supporting  documentation  provided  to  change  his
death to a favorable LOD determination.  The  applicant  contends  that  her
husband would have been in a UTA status the next day.  However, this  status
does not provide for a positive LOD determination since he  was  in  a  non-
duty status when  he  was  found  deceased  in  his  hotel  room  after  his
completion of  portal  to  portal  requirements.   In  addition,  the  death
certificate indicates that  the  death  resulted  from  an  arteriosclerotic
heart disease, which in a non-duty status, is clearly not in  the  LOD.   In
view of his non-duty status, they recommend denial of the request to  change
the LOD determination.

Concerning applicant’s request for payment of an additional flying  training
period, ANG/DPPU states that her husband did perform the AFTP  on  5  August
1983; however, the Barring Act prohibits consideration of  claims  over  six
years old.  There are no exceptions to the Act,  even  in  cases  where  its
application may seem  inequitable.   However,  the  Act  does  not  prohibit
consideration of the facts of a barred portion of  a  claim  in  determining
entitlements  for  a  portion  that  is  not  barred.   They  contacted  the
applicant and questioned whether a claim was made prior to August 1989,  and
the applicant and her son indicated that no claim was made to  seek  payment
of the AFTP until she submitted her application to  the  Board.   Therefore,
they recommend denial of the requested relief.

A complete copy of the evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant’s counsel reviewed the Air Force evaluation  and  states  that
there is no clear indication when the member died.  It is known that he  was
alive on the night of 5 August 1983, after flying  that  night.   The  Death
Certificate indicates only that he died before 12:15 p.m. on 6 August  1983.
 Furthermore, there was no LOD  determination  completed.   The  member  was
staying in contract quarters that were  obtained  by  the  NC  ANG  for  the
purpose of housing Guard members who had come too far  from  their  home  of
record to be able to return to their home overnight between duty days.   The
advisory opinion incorrectly  concludes  that  the  portal  to  portal  rule
applies; however, it does not.  In the portal to  portal  rule,  the  portal
that is referred to is the door of the service member’s  home.   It  is  not
the door of contract quarters, identified and specified for service  members
to stay overnight between duty days.  As such, the member was  in  a  travel
status between active duty training on the night of 5 August  1983  and  the
morning of 6 August 1983.  As such, he was in a duty status at the  time  of
his death.  Furthermore, at the time of his death, he was in the process  of
fulfilling crew rest requirements for the flight that he  was  scheduled  to
make the next day.  He could not have returned to his home, 90  miles  away,
after his flight and then driven back in time for his  anticipated  Saturday
flight.

Concerning the Barring Act  (31  USC  71a),  counsel  states  that  it  only
applies to claims for money against the government (e.g., for unpaid  flight
pay for 5 August 1983).  It does not apply  to  an  LOD  determination  that
does not constitute a claim  for  money.   An  LOD  determination  can,  and
should, be made separately from a claim for money and is  not  barred  by  a
statute of limitation.  Furthermore, although 31 USC 71a  does  not  provide
for exceptions, it has been replaced by  31  USC  3702  which  does  contain
exceptions.  In addition, in the Comptroller General Decision  B-181504,  it
was determined that since the military member was under military control  in
his training area at the time of his heart attack, he was on  inactive  duty
for training and therefore,  all  claims  of  his  beneficiaries  for  death
gratuity and medical expenses should be paid.

In further support of the appeal, counsel submits affidavits  from  two  ANG
colonels,  both  of  whom  were  eyewitnesses  to  matters  surrounding  the
member’s death.

Counsel’s complete responses are attached at Exhibits E and G.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

The Chief, Policy Branch, ANG/DPFP,  reviewed  the  application  and  states
that in order to consider an LOD-yes there must  be  proof  to  substantiate
that the member’s heart attack was caused by  an  event  or  situation  that
occurred during his inactive duty training or while  on  active  duty.   The
member may also be entitled to a favorable LOD determination based  on  ANGR
35-67, Line of Duty Determination and Misconduct Determinations  if  it  can
be proven that the provisions of  ANGR  35-67,  paragraph  1-5  can  be  met
(i.e., civilian medical  bill).   However,  there  is  no  new  evidence  or
supporting  documentation  provided  to  change  the  member’s  death  to  a
favorable  LOD  determination.   Therefore,   they   recommend   denial   of
applicant’s  request  unless  there  is  evidence  of  outstanding  civilian
medical bills.

In regard to the payment for the AFTP, ANG/DPFP  states  that  as  a  flight
surgeon, the member was entitled  to  conditional  flight  pay.   Therefore,
they  recommend  relief  be  granted  in  regard  to  this  portion  of  the
application.

A complete copy of the evaluation is at Exhibit H.

_________________________________________________________________

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

In letters, dated 16 May and 27 July 2001, the applicant’s Senator  provided
copies of correspondence provided to him by the applicant  and  her  counsel
(Exhibits J and M).

The applicant’s counsel reviewed the additional evaluation and  states  that
contrary to the evaluation, the circumstances of the referenced  Comptroller
General decision are the same.  The fact that the applicant’s husband  lived
outside of the commuting distance of 75 miles, further  supported  the  fact
that he stayed over at the motel to meet the  crew  rest  requirements.   In
addition, Congress has passed new legislation which  provides  that  strokes
and heart attacks suffered by  guardsmen  and  reservists  are  entitled  to
service connections if the condition was incurred while  performing,  or  in
transit to or from, inactive duty training.

In further support of the appeal, counsel submits the 6 August 1982  version
of  the  Air  Force  regulations  governing  crew  rest  and   flight   duty
limitations.

Counsel’s complete submissions are at Exhibits K and L.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or
regulations.

2.  The application was not timely filed; however, a majority of the Board
believes it is in the interest of justice to excuse the failure to timely
file.

3.  Sufficient relevant evidence  has  been  presented  to  demonstrate  the
existence  of  probable  error  or  injustice  to  warrant  payment  for  an
Additional Flying Training Period (AFTP).  In this respect,  a  majority  of
the Board notes that the member performed an AFTP on 5 August 1983  and,  as
a flight surgeon, was entitled to conditional flight pay in accordance  with
Title 37 United States Code.  In view of  this,  a  majority  of  the  Board
recommends his records be corrected to the extent indicated below.

4.  Insufficient relevant evidence has been  presented  to  demonstrate  the
existence of probable error or injustice to warrant favorable  consideration
of the applicant’s request for an LOD determination.   In  this  respect,  a
majority of the Board notes  that  given  the  passage  of  time  since  the
member’s death (over 17 years ago), copies of the governing  ANG  regulation
(i.e., ANGR 35-67) in effect at the time are no longer  available,  as  they
have been long since destroyed in accordance  with  established  procedures.
However, a copy of  ANGR  35-67,  dated  30 March  1984,  is  available  and
indicates  in  paragraph  1-5  that,  if  a  member  dies  before   an   LOD
determination  is  started,  the  LOD  is  initiated  only  if   there   are
outstanding civilian medical bills  incurred  as  a  direct  result  of  the
incident that occurred while  the  member  was  in  an  eligibility  status.
Therefore, in view of the above, a majority of the  Board  agrees  with  the
opinions  and  recommendations  of  the  Air   Force   office   of   primary
responsibility regarding applicant’s request for a  determination  that  her
husband’s death was in line of duty and adopts their rationale as the  basis
for their conclusion that the applicant has not been the victim of an  error
or injustice to warrant such relief.

5.  The applicant's case is adequately documented and it has not been  shown
that a personal appearance with or without counsel will  materially  add  to
our understanding of the issue(s) involved.  Therefore, the  request  for  a
hearing is not favorably considered.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air  Force  relating
to APPLICANT be corrected to show that on 5 August  1983,  he  completed  an
Additional Flying Training Period and was  entitled  to  conditional  flight
pay.

_________________________________________________________________

The following members of the Board considered this application in  Executive
Session on 3 July and 16 August 2001, under the provisions of AFI 36-2603:

                       Mr. Henry Romo, Jr., Panel Chair
                       Mr. Philip Sheuerman, Member
                       Ms. Olga Crerar, Member

A  majority  of  the  Board  voted  to  deny  applicant’s  request   for   a
determination that her husband’s death was in line  of  duty.   However,   a
majority  of the  Board voted  to grant  applicant’s





request that she receive payment for an additional  flying  training  period
(AFTP) that the member performed on 5 August 1983.  Mr. Sheuerman  voted  to
deny the application in  its  entirety  as  untimely  and  has  submitted  a
Minority Report which is at Exhibit K.  The following  documentary  evidence
was considered:

     Exhibit A.  DD Form 149, dated 13 Jan 00, w/atchs.
     Exhibit B.  Applicant’s Master Personnel Record.
     Exhibit C.  Letter, ANG/DPPU, dated 2 May 00.
     Exhibit D.  Letters, SAF/MIBR, dated , dated 26 May 00.
     Exhibit E.  Letter, Counsel, dated 21 Jun 00, w/atchs.
     Exhibit F.  Letter, AFBCMR, dated 21 Sep 00.
     Exhibit G.  Letter, Counsel, dated 26 Jan 01, w/atchs.
     Exhibit H.  Letter, ANG/DPFP, dated 17 Apr 01, w/atchs.
     Exhibit I.  Letter, SAF/MIBR, dated 4 May 01.
     Exhibit J.  Letter, Sen Helms, dated 16 May 01, w/atchs.
     Exhibit K.  Letter, Counsel, dated 13 Jul 01, w/atchs.
     Exhibit L.  Letter, Counsel, dated 24 Jul 01, w/atch.
     Exhibit M.  Letters, Sen Helms, dated 27 Jul & 16 Aug 01,
        w/atchs.
     Exhibit N.  Minority Report, dated 28 Aug 01.




                                  HENRY ROMO, JR.
                                  Panel Chair

AFBCMR 00-00141




MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air Force
Board for Correction of Military Records and under the authority of Section
1552, Title 10, United States Code (70A Stat 116), it is directed that:

      The pertinent military records of the Department of the Air Force
relating to APPLICANT, be corrected to show that on 5 August 1983, he
completed an Additional Flying Training Period and was entitled to
conditional flight pay.








JOE G. LINEBERGER

Director

Air Force Review Boards Agency