RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  00-00747
            INDEX CODE:  108.05
            COUNSEL:  DAV

            HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

She receive pay for the 6  years  she  spent  on  the  Temporary  Disability
Retired List (TDRL) from 6 Jun 91 through 4 Jun 97; that  her  TDRL  pay  be
non-taxable; she receive continued  disability  (incapacitation)  pay;  and,
her records be changed to reflect that her illness was a  direct  result  of
war.

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APPLICANT CONTENDS THAT:

Federal income tax withholdings should not be taken  from  her  because  her
retirement with 100% disability is a direct result of her  participation  in
the Gulf War.  She was placed on the TDRL on 6 Jun 91 and remained so  until
4 Jun 97.  Monthly  recertifications  entitling  her  to  receive  continued
disability  pay  were  accomplished  by  her  physician  and  forwarded  for
payment, but were lost.

In support of her request applicant provided documents associated  with  her
Line of Duty (LOD) determination; copies of  AF  Forms  618,  Medical  Board
Report; copies of AF Forms 1971, Medical Certificate; and, a copy of her  ID
card, drivers' license, and  Disabled  American  Veteran  (DAV)  card.   Her
complete submission is at Exhibit A.

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STATEMENT OF FACTS:

Applicant was appointed a second lieutenant Reserve of the Air Force  on  11
Nov 80.  She was progressively promoted  to  the  Reserve  grade  of  major,
having assumed that grade effective     27 May 94.  On 2  Jan  91,  she  was
ordered to active duty (AD) in support of Operation DESERT STORM.  On 7  Jun
91, she was released from AD, due to demobilization, and transferred to  the
Air Force Reserve.  On 6 Jul 92, a Medical Evaluation Board  (MEB)  convened
and directed that she be returned  to  duty.   For  Retirement  Year  Ending
(RYE) 10 Nov 92, she was credited  with  18  AD  points  and  15  membership
points;  she was credited with 128 AD points and 15  membership  points  for
RYE 10 Nov 93; and, for RYE 10 Nov 94, she was credited with zero AD  points
and 15 membership points.  On  23  Jan  95,  a  Formal  Physical  Evaluation
Board (FPEB) directed that her name be  placed  on  the  TDRL  with  a  100%
compensable disability rating.  On 24  Jun  97,  she  was  assigned  to  the
Retired Reserve Section with a 100% compensable disability rating.  She  has
completed 14 years, 5 months, and 14 days of satisfactory  Federal  military
service.

Other relevant facts pertaining to  this  application,  extracted  from  the
applicant’s military records, are contained in the letters prepared  by  the
appropriate offices of the Air Force.  Accordingly,  there  is  no  need  to
recite these facts in this Record of Proceedings.

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AIR FORCE EVALUATION:

The  Technical  Branch,  Retired  Pay  Operations,  DFAS-CL/FRAB,   reviewed
applicant's request and states that applicant's records  indicate  that  she
was placed on the TDRL on  25  Apr  95  and  transferred  to  the  Permanent
Disability Retired List (PDRL) on  24 Jun 97.   Her  records  do  not  state
that the disability was the direct result of an armed conflict.  Unless  the
record is changed to reflect so, her pay will remain  taxable  (see  Exhibit
C).

The Chief, Special Actions, USAF Physical Disabilities Division,  AFPC/DPPD,
reviewed applicant's  request  and  recommends  denial.   DPPD  states  that
circumstances involving her incurred medical conditions show that  she  does
not qualify for tax benefit entitlements authorized for physical defects  or
conditions incurred as a direct result of armed conflict or  instrumentality
of war.  The mere presence of a service member in an area of armed  conflict
does not automatically qualify an individual to receive benefits under  such
a ruling.  A thorough review of  her  disability  file  reveals  no  errors,
irregularities, or injustice that would require a  change  to  her  records.
Applicant has not provided any evidence to reflect  that  her  records  were
incorrect at the time of her placement on the  TDRL,  or  afterward  at  the
time of her disability retirement (see Exhibit D).

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant responded to the advisories and states that after she got  ill  in
Saudi Arabia during the Gulf War she had two surgeries and received a  blood
transfusion.  She has had  15  surgeries  since  then.   When  she  returned
stateside on 7 Jun 91, she went to her hometown where  she  began  seeing  a
physician at Maxwell AFB, AL who completed AF Forms  1971,  indicating  that
she was entitled to continued disability pay.  She did not receive TDRL  pay
until the Air Force board met and agreed that she should  receive  it.   She
did not receive her entitled continuation pay from when she arrived home  on
7 Jun 91 through 6 Jun 96.  The AF Forms  1971  were  filled  out  correctly
every month by her physician.

In addition to her initial  request  for  corrections,  applicant  indicated
that she was not told at her retirement briefing that  she  must  apply  for
Veterans' Group Life Insurance (VGLI) within 120 days  of  separation.   She
has been advised  that  in  order  to  participate,  she  must  receive  new
retirement orders and requests her retirement date be changed accordingly.

The wrong box was marked on  her  AF  Form  356,  Findings  and  Recommended
Disposition of USAF Physical Evaluation Board.   Her  records  now  indicate
that her disability was and is a direct instrumentality of war.  She was  in
an area where scuds broke in half.  She believes  her  illness  was  from  a
combination of medicines she took, oil well fires, and the  fine  dust  (see
Exhibit F).

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ADDITIONAL AIR FORCE EVALUATION:

The Chief,  Military  Personnel  Division,  ARPC/DPM,  reviewed  applicant’s
request  and  states  that  applicant  may  be  entitled  to  some  form  of
incapacitation pay for the period 7 Jun 91 through 25 Apr 95.  She has  been
contacted and asked to provide the necessary documentation to  make  a  full
determination of her eligibility.  She provided some documentation, but  the
documents  provided  were  not  sufficient  enough  for  them  to   make   a
determination.   Without  the  documents  required  to   make   the   proper
determination, DPM recommends denial of her request (see Exhibit G).

AFPC/JA, reviewed applicant’s request and  recommends  denial.   JA   states
that applicant experienced barosinitus  pain  while  serving  on  a  medivac
flight during Operation DESERT STORM.  During this flight, the aircraft  was
not  used  in  circumstances  different  from  circumstances   in   civilian
pursuits.  The aircraft was  not  being  used  in  a  means  unique  to  the
military.   Therefore,  her  pain  would   not   be   one   caused   by   an
instrumentality of war as the term is  defined  in  DoDI  1332.38,  Physical
Disability Evaluation.  There is no evidence of an illness caused  by  armed
conflict or an instrumentality of  war.   There  must  be  a  direct  causal
relationship between the armed conflict and the disability, or  between  the
use of the instrumentality of war and the  disability.   It  is  not  enough
that a member have been in as area of armed conflict (see Exhibit H).

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APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Applicant responded and states that even though she was not shot  or  harmed
by  other  methods  of  conventional  warfare  she   was   injured   by   an
"instrumentality of war, incurred in line of duty during a period  of  war."
The JA advisory quotes DoD guidance which states, a  "disease"  or  "injury"
in  the  line  of  duty,  which  is  her  case;  and,  there  is  a   direct
relationship.  In regards to her life insurance,  she  states  that  it  was
supposed to be continued  from  active  duty,  to  the  TDRL  and  into  her
permanent retirement.  She did not receive an outprocessing briefing at  any
time and did not know that she had to apply for VGLI.  She received  no  pay
from 7 Jun 91 through 25 Apr 95.  She reiterates  that  the  AF  Forms  1971
were completed properly, which indicated she  was  entitled  to  continuance
pay, and they were signed by the  physicians.   She  traveled  to  different
military hospitals via  military  transport  and  never  received  per  diem
either.  She sent the requested IRS documents to AFRC.  AFRC then  requested
additional IRS information as well as  copies  of  AF  Forms  422,  Physical
Profile  Serial  Report.   She  thoroughly  searched  her  records  and  the
National Personnel Records Center was contacted and no AF Forms 422  can  be
found.  If she would have known ten years ago that the  AF  Forms  422  were
required to be completed by physicians at both Army and Air Force  hospitals
she would have followed up to ensure they were completed.

In further support of her request, applicant provided copies of letters  and
emails she received from AFRC/DPM; her 1992 and 1993 IRS tax statement;  and
AF  Form  356,  Findings  and  Recommended  Disposition  of  USAF   Physical
Evaluation Board.  Her complete submission is at Exhibit J.

_________________________________________________________________

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,
evidence has not been presented which would lead  us  to  believe  that  her
medical conditions which resulted in the recommendation that she be  retired
from the Air Force by reason of medical disability, were the  direct  result
of armed conflict or an instrumentality of war.  We are  compelled  to  note
that there is no indication in the applicant's  available  record  that  she
has applied for disability compensation through the Department  of  Veterans
Affairs (DVA).  By law, the DVA rates service-connected  conditions  on  the
basis of social  and  industrial  adaptability  while  the  services  assign
ratings based on the degree or impairment for performance of duties.  It  is
entirely possible that her unfitting condition, which  was  rated  at  100%,
would receive an equal rating from the DVA, and therefore, provide  her  the
tax relief that she is seeking.

4.    In regard to the applicant's request that she  receive  incapacitation
pay, we find insufficient evidence to warrant a favorable recommendation  in
this matter.  We note that she  was  afforded  the  opportunity  to  provide
documents required to determine her eligibility; however, she has failed  to
provide the information requested.  In the absence  of  such  documentation,
we are unable to make  a  determination  in  this  matter.   If  the  proper
documentation is provided, we will reconsider her  request.   Therefore,  in
the absence of evidence to the contrary, we  agree  with  the  opinions  and
recommendations of the Air  Force  offices  of  primary  responsibility  and
adopt their rationales as the basis for our conclusion  that  the  applicant
has not been the victim of an error  or  injustice  and  find  no  basis  to
recommend granting the relief sought in this application.

5.    In the applicant's response to the advisory opinion,  in  addition  to
her previous requests, she requested that her retirement date be changed  so
that she may apply for Veteran's Group Life Insurance (VGLI).  We are  aware
that retiring members are  informed  of  their  option  to  apply  for  VGLI
conversion during out-processing briefings and that  VGLI  applications  are
mailed to retiring members by the Air Reserve Personnel Center  as  well  as
the Department of Veterans' Affairs upon retirement.   Her  contentions  are
duly noted; unfortunately, we do not find sufficient  relevant  evidence  of
error or injustice.  Her uncorroborated assertions, in  and  by  themselves,
are insufficiently persuasive to  warrant  favorable  consideration  of  her
request.

6.  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 issues involved.   Therefore,  the  request  for  a
hearing is not favorably considered.

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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 31 May 01, under the provisions of AFI 36-2603:

      Ms. Kathy L. Boockholdt, Panel Chair
      Ms. Barbara J. White-Olson, Member
      Mr. Steven A Shaw, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 1 Jan 00, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, DFAS-CL, dated 17 Apr 00.
    Exhibit D.  Letter, AFPC/DPPD, dated 20 Apr 00.
    Exhibit E.  Letter, SAF/MIBR, dated 5 May 00.
    Exhibit F.  Letter, Applicant, undated.
    Exhibit G.  Letter, AFRC/DPM,. dated 28 Feb 01, w/atchs.
    Exhibit H.  Letter, AFPC/JA, dated 11 Jan 01.
    Exhibit I.  Letter, SAF/MIBR, dated 9 mar 01.
    Exhibit J.  Letter, Applicant, dated 15 Apr 01, w/atchs.




                                   KATHY L. BOOCKHOLDT
                                   Panel Chair