RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-01217
            INDEX CODE:  108.08
            COUNSEL:  NONE

            HEARING DESIRED: YES
_________________________________________________________________

APPLICANT REQUESTS THAT:

His record be corrected to reflect that his disability was received  in  the
line of duty  as  a  direct  result  of  armed  conflict  or  caused  by  an
instrumentality of war.

_________________________________________________________________

APPLICANT CONTENDS THAT:

While serving in Vietnam he was exposed to Agent Orange numerous times.   He
trained as a UC-23  spray/defoliation  pilot  and  C-123K  pilot.   He  flew
contaminated aircraft and moved the spray equipment that was used  to  spray
Agent Orange.  He was medically retired in October  2002  with  a  permanent
disability rating of 100 percent due to cancer of the larynx.   Even  though
the Physical Evaluation Board (PEB) was  aware  of  his  exposure  to  Agent
Orange, they failed to recognize this fact in the "Additional  Findings"  of
the AF Form 356.  He was advised by his counsel that it made  no  difference
in his case since he had over 20 years of active  duty  and  his  disability
was service related.  He later discovered that it does  make  a  difference.
His research of the Department of Veterans' Affairs  website  revealed  that
there was a direct relationship between his disease and  exposure  to  Agent
Orange.  had he been properly  informed  he  would  have  appealed  the  PEB
decision.  The PEB failed to recognize his disease  or  correctly  recognize
his disability  as  having  been  incurred  as  a  direct  result  of  armed
conflict, caused by an instrumentality of war and incurred in  the  line  of
duty during a period of war.

In support of his request, applicant  provided  extracts  from  his  medical
records, his AF Form 356, his retirement order, a copy of his DD  Form  214,
his Officer Effectiveness Report (OER) closing 28 Dec  71,  a  list  of  his
decorations,  a  Statement  of  Service,  a  DVA   website   printout,   and
documentation associated with his DVA claim.  His complete submission,  with
attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant,  a  prior  service  enlisted  Air  Force  Reservist,  accepted  a
commission and was appointed a second lieutenant, Reserve of the  Air  Force
on 29 Sep 69.  He was voluntarily ordered to extended active duty on 26  Mar
79.  He was progressively promoted to the grade of colonel,  having  assumed
that grade effective and with a date of rank of 1 Aug 92.

A Medical Evaluation Board (MEB) was convened on 3 Jun 02 and  referred  his
case to an Informal PEB (IPEB).  On 11 Jun 02, the IPEB found him unfit  for
further military service based on a compensable diagnosis of  squamous  cell
cancer of  the  larynx  with  a  disability  rating  of  60  percent  and  a
noncompensable diagnosis of gastroephageal reflux disease  and  chronic  low
back pain.  The IPEB recommended that he be permanently retired.   The  IPEB
indicated that his  disability  was  not  the  direct  result  of  an  armed
conflict, an instrumentality of war, or combat related.  The  applicant  did
not concur with the findings and recommended disposition of  the  IPEB.   On
31 Jul  02,  a  Formal  PEB  (FPEB)  considered  the  applicant's  case  and
recommended that he be  permanently  retired  from  the  Air  Force  with  a
compensable  diagnosis  of  squamous  cell  cancer  of  the  larynx  and   a
disability rating of 100 percent.  The FPEB indicated  that  his  disability
was not the direct result of an armed conflict, an instrumentality  of  war,
or combat related.  The applicant concurred with the  recommended  findings.
On 22 Oct 02, he was retired in the grade of colonel.  He served  28  years,
9 months, and 3 days on active duty.

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AIR FORCE EVALUATION:

AFPC/DPPD recommends denial.  DPPD states that although he was  treated  for
various medical conditions  throughout  his  career,  nothing  reflects  his
unfitting medical condition at the time of his PEB was the direct result  of
an instrumentality of war as defined in AFI 36-3212.  The mere  presence  in
an  area  of  armed  conflict  is  not  sufficient  to  qualify   for   this
entitlement.  There must be  a  definite  causal  relationship  between  the
armed conflict and the unfitting condition.  In order to meet  the  criteria
for an injury to be considered from an instrumentality of war the harm  must
have been caused by a military combat vehicle, injury or sickness caused  by
fumes, gases, or explosion of military ordinance, vehicles or  material.   A
review of his  record  by  the  IPEB  confirmed  the  lack  of  evidence  to
establish his claim that his medical condition was the direct  cause  of  an
armed conflict or the  result  of  an  instrumentality  of  war.   The  DPPD
evaluation is at Exhibit C.

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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 error or injustice.  We note that 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  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.  The  DVA  is  authorized  under  the
provisions of Title 38 U.S.C. to rate disabilities on a "presumptive  basis"
on the basis of exposure to Agent Orange and to presume such  disability  is
combat-related.  In order for the service departments, which are  not  bound
by such presumptions, to associate a particular condition with  exposure  to
Agent Orange, there must be  a  definite  causal  relationship  between  the
condition and exposure to Agent Orange.   We  are  not  persuaded  that  the
applicant has substantiated that there is  a  definite  causal  relationship
between his unfitting condition and exposure to  Agent  Orange.   Therefore,
we agree with the opinion and recommendation of  the  Air  Force  office  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.

4.  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.

_________________________________________________________________

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 AFBCMR Docket Number  BC-2003-
01217 in Executive Session on 17 Sep 03, under the  provisions  of  AFI  36-
2603:

      Mr. Albert F. Lowas, Jr., Panel Chair
      Mr. Michael Maglio, Member
      Ms. Dorothy P. Loeb, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 4 Apr 03, w/acths.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPD, dated 16 Jun 03.
    Exhibit D.  Letter, SAF/MRBR, dated 20 Jun 03.




                                   ALBERT F. LOWAS, Jr.
                                   Panel Chair