RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  01-02632
            INDEX CODE:  108.08
            COUNSEL:  NONE

            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His disability retirement be corrected to show that  his  medical  condition
was the result of an "instrumentality  of  war  during  a  period  of  armed
conflict."

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was denied the benefit of having his military  enlistment  time  credited
for federal service retirement  because  his  records  do  not  reflect  the
medical findings of the Department of  Veterans'  Affairs  (DVA).   The  DVA
documented his disability as service-connected but the U.S.  Postal  Service
Human Resource Director says that he must have  a  statement  from  the  Air
Force indicating his  disability  occurred  as  an  instrumentality  of  war
during a time of war.

In support of his request, applicant provided  a  letter  from  the  DVA,  a
certificate of his combat missions in Southeast  Asia,  a  letter  from  the
U.S. Postal Service; a copy of his PS Form  50,  Notification  of  Personnel
Action; and copies of his DD Forms 214, Report  of  Separation  from  Active
Duty.  His complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant enlisted  in  the  Regular  Air  Force  on  11  Jan  61.   He  was
progressively promoted to the grade of  master  sergeant.   From  16 Dec  67
through 10 Mar 69, he served as an  HH-3E  Flight  Engineer  assigned  to  a
rescue and recovery squadron in Thailand.

An MEB was convened on 24 Mar 76  and  referred  his  case  to  an  Informal
Physical  Evaluation  Board  (IPEB)  with  a  diagnosis   of   Schizophrenic
reaction, paranoid type, with definite impairment of social  and  industrial
adaptability.  The IPEB found him unfit for  further  military  service  and
recommended that he be permanently retired  with  a  30  percent  disability
rating.   The  applicant  disagreed  with  the  findings   and   recommended
disposition of the IPEB.  After further explanation  of  the  IPEB  findings
and consult with his counsel, he elected to waive his earlier  election  for
a formal hearing.  He was permanently retired on 25 May 76.   He  served  15
years, 4 months, and 15 days on active duty
_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPD recommends denial of the applicant's request.   DPPD  states  that
he was diagnosed with Schizophrenia on 24 Mar 76 while assigned  to  MacDill
AFB, FL.  His MEB makes no mention that his condition was the direct  result
of an armed conflict or an  instrumentality  of  war.   The  IPEB  findings,
which he reviewed and agreed upon, also states that the disability  was  not
the direct result of an armed conflict or instrumentality of war.

The documentation he provided appears to infer that  his  medical  condition
was the result of his assignment to Southeast Asia.  His  personnel  records
contain a performance report for the period 16 Dec 67  through  10  Mar  69,
which reflects that he bravely performed as a Flight Engineer  in  a  Rescue
and Recovery Squadron stationed in Thailand, for which he was credited  with
98 combat hours and completing 46 rescue  sorties.   Subsequent  performance
reports following his assignment in  Thailand  for  the  period  March  1969
through November 1975 clearly show that he was fully capable  of  performing
his military duties as a Helicopter Technician and afterward as an  Airframe
Repair Specialist.

He was treated fairly throughout the disability evaluation process  and  was
properly rated  under  federal  disability  guidelines.   The  circumstances
involving his acquired  unfitting  medical  state  do  not  fall  under  the
instrumentality of war criteria.   There  is  no  justification  that  would
require his records be corrected to reflect that his medical  condition  was
the direct result of an instrumentality of war.  The DPPD evaluation  is  at
Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant states as defined in Title 38, the term "incurred in  combat  with
an enemy of the United States or caused by an  instrumentality  of  war  and
incurred in the line of duty during a period of war" applies to his service-
connected rating from the DVA.  He is 30 percent socially  and  industrially
disabled as a result of his military service.  The disability did happen  in
the military.  The DVA  clearly  states  that  he  is  service-connected  as
caused by or aggravated by the military during his enlistment  from  January
1961 to May 1976 in the line of duty.  The Air Force construed his  service-
connected disability was not caused by or aggravated by his  service  during
the Vietnam War.  Today the DVA is still  taking  claims  related  to  Agent
Orange from the Vietnam War era because  medical  conditions  are  just  now
showing up.  Six years after he was in Vietnam the  DVA  made  the  decision
and treated him  for  his  disability  that  was  incurred  or  effected  by
military service.  Although he doesn't have a statement  that  says  why  he
was rated service-connected, it  is  clear  that  the  DVA  was  relying  on
Section 1154 of Title 38 because he was in combat  at  one  point  and  time
during his military service.  The DVA indicated that his acquired  unfitting
medical state was incurred or aggravated by the circumstances involving  his
military service.  As implied by DPPD, there were no negative  circumstances
on his part.  By using the word  "acquired"  DPPD  is  implying  he  was  in
control of getting his illness.  DPPD stated that  he  reviewed  and  agreed
that his disability was not a direct result of  war  or  instrumentality  of
war.  If that is in writing, it is  not  fair.   DPPD  is  using  his  other
periods of service and neglecting the Vietnam Era.  He joined the Air  Force
one month after the Vietnam War started and was  separated  one  year  after
the war ended.  All but 13 months of his service was during the war era.

In support of his request, applicant provided excerpts from  Titles  01  and
38 U.S.C, extracts from his medical  records,  letters  from  the  DVA,  and
additional  copies  of  documents  previously   submitted.    His   complete
submission, with attachments, is at Exhibit E.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

USAF/JAG  recommends  denial  of  applicants  request   as   untimely.    If
considered on its merits, JAG recommends denial of his request.  JAG  states
that on 2 Feb 76 he was admitted to  the  hospital  in  a  psychotic  state.
During his month long hospitalization he underwent intensive evaluation  and
at no time did he relate  or  causally  connect  his  mental  and  emotional
disorder  to  his  Southeast  Asia  service.   In  fact,  according  to  the
applicant, the genesis  of  his  mental  and  emotional  problems  began  in
September 1975 and he attributed them to changes  and  stress  on  the  job,
stress at work which had been building  up,  and  worry  about  his  pending
promotion to master sergeant and the increased responsibility involved  with
that.

For disability determination purposes, a disability  received  as  a  direct
result of armed conflict has  a  very  specific  and  limited  meaning.   To
qualify, there must be a definite  causal  relationship  between  the  armed
conflict and the unfitting disability.  Consequently, a  disability  may  be
incurred during a period of war, in an area  of  armed  conflict,  or  while
participating in combat operations, but not be classified  as  a  disability
received as direct result of armed conflict.  For  disability  purposes,  an
instrumentality of  war  would  include  a  device  designed  primarily  for
military service and used as such at the time of the injury.   It  may  also
include a  device  not  designed  primarily  for  military  service  if  its
military use differs from its use under similar  circumstances  in  civilian
pursuits.   His  records  fail  to  establish  that  his   service-connected
disability was the  direct  result  of  armed  conflict,  or  caused  by  an
instrumentality of war during a period of war.  The  JAG  evaluation  is  at
Exhibit F.

_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

A copy  of  the  additional  Air  Force  evaluation  was  forwarded  to  the
applicant on 23 Oct 02 for review and comment within 30 days.   As  of  this
date, this office has received no response.

_________________________________________________________________

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, it is in the interest  of
justice to excuse the failure to timely file.

3.  Insufficient relevant evidence has been  presented  to  demonstrate  the
existence of  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  his  medical
condition which resulted in the recommendation that he be medically  retired
from the Air Force by reason of medical disability, was  the  direct  result
of armed conflict or an instrumentality of war.  We are  compelled  to  note
that there is a definitive difference between a service-connected  condition
and a condition being the result of an instrumentality of war  or  occurring
during armed conflict.  A disability is  considered  service-connected  when
it was incurred during a  period  of  active  military  service  and/or  the
condition was aggravated during active military  service.   A  condition  is
considered to be the result  of  an  armed  conflict  when  the  defect  was
incurred in the line of duty as a direct result of an armed  conflict.   The
mere presence in an area of an armed conflict  or  simply  being  in  active
military service during a period of armed  conflict,  does  not  in  itself,
mean that a condition was the result  of  an  armed  conflict.   To  be  the
result of an instrumentality of war, the condition or defect must have  been
incurred as a direct result of an instrument of war during a period of  war.
 Evidence has not been presented which would lead us  to  believe  that  his
condition was incurred as a result of an armed conflict or that it  was  the
result of an instrumentality of war.  Therefore, we agree with the  opinions
and recommendations of the Air Force offices of primary  responsibility  and
adopt their rationale as the basis for our  conclusion  that  the  applicant
has not been the victim of  an  error  or  injustice.   In  the  absence  of
evidence to the contrary, we find no 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 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  Docket  Number  01-02632  in
Executive Session on 26 Mar 03, under the provisions of AFI 36-2603:

      Mr. Thomas S. Markiewicz, Vice Chair
      Mr. James W. Russell III, Member
      Mrs. Carolyn J. Watkins-Taylor, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 8 Sep 01, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPD, dated 17 Oct 01.
    Exhibit D.  Letter, SAF/MRBR, dated 26 Oct 01.
    Exhibit E.  Letter, Applicant, dated 21 Jan 02, w/atchs.
    Exhibit F.  Letter, USAF/JAG, dated 17 Oct 02.
    Exhibit G.  Letter, SAF/MPBC, dated 23 Oct 02.




                                   THOMAS S. MARKIEWICZ
                                   Vice Chair