RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-01214
            INDEX CODE:  108.03

            COUNSEL:  NONE

            HEARING DESIRED: NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His local Annual Training (AT) orders be changed to show him on active
duty at the time of his accident, on 9 November 1991.

_________________________________________________________________

APPLICANT CONTENDS THAT:

While helping a fellow airman in a traffic accident, he was struck  by
an oncoming vehicle that pinned his torso to another car.  He suffered
extensive damage to his legs  and  his  back,  and  he  experienced  a
ruptured bladder.  During his 11-day stay in the hospital, he contends
members from his unit assured him his injury would be declared line of
duty (LOD).  His supervisor, and his commander, told  him  his  orders
would be changed to include the day of his accident so that everything
would be taken care of.  Disappointment followed  as  he  later  could
find no evidence of an LOD ever having been completed, nor  would  the
Department of Veteran’s Affairs (DVA) help him with treatment for  his
injuries.  He only recently found out about the AFBCMR.  He has served
in the United States military for 17 years.

In support of his  appeal,  the  applicant  has  provided  a  personal
statement and copies of his active duty orders, the  accident  report,
various pertinent medical records surrounding his accident,  DD  Forms
214, Certificate of Release or Discharge from  Active  Duty,  National
Guard Bureau (NGB) Forms  22,  Report  of  Separation  and  Record  of
Service, and numerous pieces of correspondence between  the  applicant
and his representatives.

Applicant’s complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant enlisted  in  the  Alaska  Air  National  Guard  (AKANG)  on
1 October 1988, as  a  technical  sergeant  (TSgt/E-6),  after  having
served almost 10 years of combined active Navy and  Reserve  component
service.  Applicant was performing his AT (15 days) on  the  following
dates: 4-8 November 1991, 12-15 November 1991,  18-22  November  1991,
and 25 November 1991.  On 9  November  1991,  he  was  involved  in  a
serious accident wherein his legs, back, and  bladder  were  seriously
injured.  He was  treated  at  the  Elmendorf  Air  Force  Base  (AFB)
hospital and underwent surgery to repair his bladder and his legs.  He
was released from the hospital 11 days later on 19 November 1991.

On 26 April 1993, he applied to the DVA for compensation  due  to  the
injuries he received as a result of the accident.  On 1  August  1994,
his request was denied based on the fact he was not on active duty  at
the time of the injuries.  On 11 February  1995  he  was  examined  in
preparation for a local Medical Evaluation Board (MEB).

On 23 July 1995, he met an MEB wherein he was found  disqualified  for
world wide duty as he suffered from degenerative joint disease in  his
right knee, degenerative disc disease in the lumber area of his  back,
and a history fracture of his  right  femur.   In  December  1996,  he
applied again for compensation from the DVA and on  13  May  1997  his
claim was denied.  On 12 January 1996, he was honorably discharged  in
the grade of TSgt after having served 17 years and 3 days of  combined
active Navy and Reserve component service.

_________________________________________________________________

AIR FORCE EVALUATION:

ANG/DPPI recommends  denial.   Applicant’s  local  AT  orders  clearly
identify he was not on orders at the time of his injury and  therefore
is not entitled to military healthcare or compensation.  Further,  his
orders should not be amended to cover the period of his injury and  to
do so for the purpose of receiving entitlements would be in opposition
to written Instructions.  His former  commander  does  note  that  the
AKANG followed the  standard  operating  procedure  of  scheduling  AT
around non-work days in order to not include weekends so members would
not have to take military  leave.   DPPI  notes  Special  Order  A-167
actually covered applicant’s 15 days of AT;  however  it  did  include
breaks for non-duty days, one of which was the day the  applicant  was
injured.

DPPI’s complete evaluation, with attachments, is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the  applicant  on
14 January 2005 for review and comment within 30  days.   As  of  this
date, no response has been received by this office.

_________________________________________________________________

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.  Sufficient relevant evidence has been  presented  to  demonstrate
the existence of  an  error  or  injustice.   In  this  respect,  the
majority of the Board notes the following:

      a.  The applicant being a member of the Air  National  Guard  is
required to perform annual  active  duty  training.   His  period  of
active duty was for 15 days,  4  November  1991  through  25 November
1991, and under normal circumstances active duty  orders  would  have
been published for this period of time.  However,  in  an  effort  to
prevent the military technician from being charged military leave  on
non-workdays, the Alaska ANG established a policy to publish separate
active duty orders and  not  include  weekends  or  holidays.   On  9
November 1991, a Saturday, applicant was involved  in  an  automobile
accident and incurred injuries to his legs,  back  and  bladder.   He
underwent surgery at Elmendorf AFB hospital and was  released  on  19
November 1991.  He continued to serve with the ANG and performed  his
active duty tours, and his inactive duty training.  It is also  noted
that he performed his full time military technician duties from  1991
to 1995.


      b.  The applicant in his appeal to this Board has requested that
his active duty orders be amended to reflect that he  was  on  active
duty on 9 November 1991, the day  of  the  automobile  accident.   It
appears that he has been denied medical benefits by the Department of
Veteran Affairs (DVA) for the injuries he incurred.  After  reviewing
the evidence of record, the majority of the Board believes  that  the
applicant has been the victim of an injustice.  In this  regard,  the
majority of the Board notes that while the Alaska ANG was  trying  to
help its members by publishing separate active duty orders to prevent
its members from taking leave, their effort in this  particular  case
was harmful to the applicant.  Therefore, the majority of  the  Board
believes  that  his  active  orders  should  be  amended  to  include
9 November 1991.  As a matter of  information,  whether  or  not  the
proposed action by this Board  will  entitle  the  applicant  to  any
veteran's benefits remains an issue between  the  applicant  and  the
DVA.


      c.  Based on the above recommended correction,  applicant  would
have been entitled to remain on active duty until returned to his ANG
unit.   Therefore, the majority of  the  Board  recommends  that  his
record be corrected as indicated below.

THE BOARD RECOMMENDS THAT:

The pertinent military records  of  the  Department  of  the  Air  Force
relating to APPLICANT be corrected to show that:

            a. Special Order A-167, dated 29 October 1991, be  amended  to
reflect he was on active duty from 4 November 1991 to 9 November 1991.

            b. The injuries he incurred  as  a  result  of  an  automobile
accident on 9 November 1991 were determined to have incurred in  the  Line
of Duty (LOD) by competent authority.

            c. On 10 November 1991, he was continued on active duty  until
20 November 1991 at which time he was released from active duty.

______________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 8  March  2005  and  2  August  2005,  under  the
provisions of AFI 36-2603:

      Mr. Richard A. Peterson, Panel Chair
      Ms. Barbara R. Murray, Member
      Mr. Christopher D. Carey, Member

By a majority vote,  the  Board  voted  to  grant  the  request.   Mr.
Peterson voted to deny the request and did  not  desire  to  submit  a
minority report.  The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 9 Apr 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, ANG/DPPI, dated 11 Jan 05, w/atchs.
    Exhibit D.  Letter, SAF/MRBR, dated 14 Jan 05.




                                   RICHARD A. PETERSON
                                   Panel Chair



                         DEPARTMENT OF THE AIR FORCE
                                WASHINGTON DC

[pic]
Office Of The Assistant Secretary



AFBCMR BC-2004-01214




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:

            a. Special Order A-167, dated 29 October 1991, be  amended  to
reflect he was on active duty from 4 November 1991 to 9 November 1991.

            b. The injuries he incurred  as  a  result  of  an  automobile
accident on 9 November 1991 were determined to have incurred in  the  Line
of Duty (LOD) by competent authority.

            c. On 10 November 1991, he was continued on active duty  until
20 November 1991 at which time he was released from active duty.





     JOE G. LINEBERGER

     Director

     Air Force Review Boards Agency