RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-00956
            INDEX CODE:  108.03

            COUNSEL:  NONE

            HEARING DESIRED: NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

The finding of Line of Duty – No (LOD-No) be changed to Line of Duty -
Yes (LOD), he receive incapacitation pay, he  be  reimbursed  for  all
medical and travel expenses related to the Physical  Evaluation  (PE),
he be evaluated by a Medical Evaluation Board (MEB), and his  AF  Form
422, Physical Profile Report, be  changed  to  reflect  incapacitation
dates of 7 April 2003 to 15 April 2005.

_________________________________________________________________

APPLICANT CONTENDS THAT:

In late January 2003 he had volunteered for an Air Expeditionary Force
(AEF) deployment to Prince Sultan Air Base (PSAB), Saudi Arabia.   The
return trip to the United States was in February 2003 and was  an  18-
hour flight.  He contends he had pain in the  calf  of  his  left  leg
that went away after a few days and then experienced pain in his  left
groin  area  that  also  eventually  subsided.   In  the  weeks  after
returning from the deployment he was fatigued at the end of  each  day
with little reserve energy.   The  fatigue  became  so  bad  that  his
performance as a letter carrier for the US Postal Service (USPS) began
to suffer to the point he received a Letter of Warning,  Charged  with
Unacceptable Performance in February 2003 because  he  was  unable  to
complete his route in the time allotted.  He contends all he could  do
at the end of each day was spend time resting in his recliner and  his
sleep pattern was changed from a normal seven hours of sleep  to  nine
to ten hours of sleep per night.  He noticed a big difference  in  his
ability to ski when on an annual ski trip to Colorado with his wife.

On 1 March 2003, he completed a Post Deployment DD 2795  at  his  unit
clinic and, for the  first  time  in  his  career,  under  the  Health
Assessment section, noted his health as very good – the first time  in
his career he had noted his health  as  anything  but  excellent.   He
answered no to the next several questions dealing with connecting  any
health problems to the deployment, as he had no idea at the  time  the
fatigue and trouble breathing were related to the  deployment.   On  6
April 2003, he experienced acute shortness of breath and  again  on  7
April when he visited his  family  physician.   He  was  sent  to  the
hospital and received  a  primary  diagnosis  of  bilateral  pulmonary
embolism and deep leg venous thrombosis with a secondary diagnosis  of
history of recent travel with an 18-hour flight  in  February  (2003).
He was put on total bed rest for 48 hours and placed on blood thinners
that he was told he would have to take for the next  six  months.   He
was given a leg scan to make sure the  clot  was  gone,  placed  on  a
regimen of one aspirin per day and on 14 April 2003 he was discharged.
 He returned to work on 23 April 2003 with no restrictions.  He  notes
he had no loss of income at his job at the USPS  as  he  was  on  sick
leave for the entire time he was recovering.

He  stopped  by   the   unit   clinic   and   explained   his   recent
hospitalization.  He was told he would have to  complete  a  LOD.   He
reported to the unit clinic on 2  May  2003  where  he  was  told  his
hospitalization would be noted in his medical record.  In the interest
of his family, he asked for an LOD.  The clinic  personnel  asked  him
whether or not his insurance company was paying his  bills.   He  told
the clinic the insurance was paying however, in the  interest  of  him
protecting his family, he wanted an LOD determination and he  intended
to apply for incapacitation pay (incap  pay).   The  clinic  told  him
since he had experienced no loss of income  he  wasn’t  qualified  for
incap pay.  After repeated insistence, he was given an appointment  on
4 May 2003 with a medical officer to initiate the AF Form 348, Line of
Duty Determination.  He also applied for incap pay on  that  date  for
the period 7 April 2003 to 6 October 2003.  After  his  LOD  had  been
approved through his  chain  of  command  it  was  sent  to  the  wing
commander (WG/CC) for final approval.  He was told there was a problem
and he was asked to report to the WG/CC’s office.  Several people were
present at the meeting including the staff judge advocate (SJA).   One
attending colonel referred to his request for incap pay by stating  it
really stuck in his stomach that he was getting full pay from the USPS
and was now trying to “screw”  the  government  for  more  money.   He
requested a copy of the AF  Form  348  several  times  throughout  the
meeting and afterwards but was denied.

On 30 June 2003, he was informed there would be a formal investigation
of his LOD.  The IO was to be his immediate commander who had  earlier
suggested he was greedy for requesting incap pay.  He  notes  AFI  36-
2910 wherein is stated the IO should be a disinterested officer…If the
IO cannot meet these  criteria,  include  a  memo  in  the  case  file
justifying the IO’s appointment.

In August 2003, when interviewed by the investigating officer (IO)  he
was not informed of his rights under AFI 36-2910 wherein is stated “In
all cases, the subject of the investigation  must  be  advised  before
being interviewed that Title 10, United States Code  (U.S.C.)  Section
1219 states: “A member of an armed force may not be required to sign a
statement relating to the  origin,  incidence,  or  aggravation  of  a
disease or injury that (he)/(she) has.   Any  such  statement  against
(his)/(her) interests, signed by a member  is  invalid.”   A  member’s
right to make a statement is violated if a person, in  the  course  of
the investigation, obtains the member’s oral  statements  and  reduces
them to writing,  unless  the  above  advice  was  given  first.”   He
contends the  statement  he  gave  on  3  August  2003  contains  many
misquotes and does not accurately reflect the oral statements he  made
to the IO.   Consequently,  he  refused  to  sign  the  statement  and
believes it should not be considered a sworn statement.

During  the  December  2003  Unit  Training  Assembly  (UTA),  he  was
involuntarily reassigned from his PERSCO Team Chief  position  to  the
Base Education Office effective 7 December 2003.  He states the reason
was he would no longer be able to fly because of the danger of getting
another blood clot.  Further, since he was  no  longer  qualified  for
worldwide duty, he could no longer  hold  his  mobility  position  and
would not be retained past his ETS of 15 April 2005.

On 25 June 2004, over  a  year  after  the  formal  investigation  was
initiated he was notified his LOD had been found Not in Line of Duty –
Not Due  to  Own  Misconduct.   On  6  August  2003,  he  requested  a
reconsideration of the finding.  On 13 January 2005, he  was  informed
the reinvestigation substantiated the earlier finding.  He contends he
is not the same person health-wise before  the  DVT/PE.   A  pulmonary
test revealed his pulmonary function is now 80% of a normal  51  year-
old.  His performance with the USPS has improved however  his  workday
continues to be a struggle.

In support of his  appeal,  the  applicant  has  provided  a  personal
statement and copies of  medical  records,  letters  of  support  from
attending physicians and  witnesses,  his  LOD  and  Physical  Profile
Report, the first and second Report of Investigation  (ROI),  military
medical history documents, deployment reports and  associated  orders,
and pertinent information  derived  from  the  Internet  dealing  with
pulmonary embolisms and air travel.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant, a retired member  of  the  IAANG,  began  his  military
career on 26 March 1985.  He eventually attained the  grade  of  chief
master sergeant (CMSgt) with an effective and date of rank of 1  April
2002.  On 24 January 2003, he was called to  active  duty  to  support
Operation Southern Watch at  Prince  Sultan  Air  Base  (PSAB),  Saudi
Arabia for 20 days.   He  returned  from  the  temporary  duty  on  10
February 2003.  On 7 April 2003, he was admitted to the  hospital  for
clinical exam and history  (recent  18-hour  flight)  consistent  with
pulmonary embolism.  He complained of pain  in  his  upper  thigh  and
shortness of breath  for  two  weeks  prior  to  this  admission.   He
complained of fatigue and  air  hunger.   His  primary  diagnosis  was
Bilateral pulmonary embolism and left leg deep venous thrombosis  with
secondary diagnosis listed as history of travel with an 18-hour flight
in February (2003).  On 4 May 2003, a Physical Profile  Serial  report
was accomplished wherein he was ordered to perform only administrative
duties, no sitting for more  than  30  minutes,  and  he  was  not  to
accomplish any physical fitness training.  On  7 June  2003,  a  local
Line of Duty Determination was accomplished, signed, and  approved  by
his chain of command, only to be rescinded  on  8  June  2003  by  his
immediate commander per a memo from the local Judge Advocate (JA).  On
21 November 2003, his doctor wrote him and advised him to stop  taking
blood thinners but to take an aspirin everyday.  Further,  his  doctor
noted he should not have any travel restrictions.  On 7 December 2003,
he was transferred from his PERSCO position to a position in the  base
training office.  On 17 December 2004 a Report of  Investigation  Line
of Duty Misconduct Status found him mentally sound, present for  duty,
and not guilty of willful  misconduct  as  to  the  causation  of  his
illness.  The report also  states  that  no  medical  personnel  could
confirm  the  diagnosis  was  sustained  on  the  aircraft.   Finally,
concerning the LOD, the investigation found his illness to be  Not  in
Line of Duty – Not Due  to  Own  Misconduct.   The  investigation  was
signed and approved through his chain of command.   The  body  of  the
IO’s report summarizes in stating there is no question he has suffered
an adverse medical condition.  Specifically sometime prior to 7  April
2003, he developed a  blood  clot  that  resulted  in  his  developing
bilateral pulmonary embolism and left leg deep venuos  thrombosis  for
which he was hospitalized and received treatment.  The ROI also  notes
that none of his attending physicians  could  definitively  state  the
injury occurred as a result of his flight home on 9  and  10  February
2003.  A reinvestigation of the LOD was authorized  as  the  applicant
had provided “new and significant evidence” that indicates the initial
LOD determination was in error.  The new evidence was  a  letter  from
two of his doctors stating their belief his blood clot was related  to
his active duty service.  His second piece of evidence  was  from  the
Postmaster regarding his recent performance and  resulting  Letter  of
Warning.  Another  investigation  was  undertaken  and  the  LOD   was
reaffirmed as Not in Line of Duty – Not Due to Own Misconduct  as  the
IO felt he had not provided conclusive evidence as to when  his  blood
clot formed and he presented no evidence it formed during the airplane
trip home from Saudi Arabia.

On 18 April 2005, applicant was retired awaiting Reserve  Retired  pay
at age 60 after having served for over 22 years.

_________________________________________________________________

AIR FORCE EVALUATION:

HQ ANG/DPFOC recommends denial.  DPFOC contends the Iowa ANG  and  the
National Guard Bureau (NGB) subject matter  experts  have  extensively
reviewed  the  application  and  do  not   believe   the   application
demonstrates the existence of  material  error  or  injustice.   DPFOC
cites an attached advisory from the IAANG Wing Commander wherein it is
stated the primary concern with his LOD determination has always  been
whether or not the injury he suffered occurred while he was on  active
duty.  He contends the preponderance of the evidence provided  by  the
IO and the application of his own common sense does  not  support  the
conclusion his injury was suffered while on duty with the USAF or  the
IAANG.   In  fact,  the  preponderance  of  the   evidence   indicates
otherwise.  The applicant returned from the deployment on 10  February
2003 and filled out a health questionnaire  reporting  his  health  as
very good and he reported no health concerns  at  that  time.   Almost
three months later, he finally informed the unit of health problems he
believed were associated with the deployment.  He notes  he  continued
his strenuous USPS duties during this time and also took a lengthy ski
trip during the period where the lengthy trip could have prompted  his
injury.  In fact, given the ski trip was more  near  in  time  to  the
onset of his medical condition it is even more likely the trip  caused
the onset.  He contends the medical evidence is inconclusive,  as  the
attending physicians cannot say for sure that the  flight  caused  the
medical condition any more than the  drive  associated  with  the  ski
trip.  His complaint of fatigue is also inconclusive as  doctors  have
verified that fatigue is very common and that a blood clot is not  one
of the first things that come to their mind when a  patient  complains
of fatigue.  He contends, AFI 36-2910 states an LOD  determination  is
based on the onset of the disease, illness, or injury process, not the
existence of symptoms.  DPFOC contends more of the facts  support  the
onset of the disease as being after his deployment and not during.

DPFOC’s complete evaluation, with attachment, is at Exhibit B.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant responds to the ANG advisory by noting the final comment  of
the WG/CC that he believed the LOD determination of  Not  in  Line  of
Duty – Not Due to Own Misconduct  was  absolutely  correct,  as  being
absolutely incorrect and not supportive of the  known  facts  of  this
case.  AFI 36-2910 states the finding of Not in Line of Duty – Not Due
to Own Misconduct is a determination supported by a  preponderance  of
the evidence that the member’s  death,  illness,  injury,  or  disease
happened while the member was absent without authority, and the death,
illness, injury, or disease was not proximately caused by the  members
own misconduct.  He contends he was not absent with authority and  the
IO’s duty status determination on the DD Form 261, Item 10, Basis  for
Findings, Present For Duty reads yes.   Therefore,  their  finding  is
incorrect and is not supported by the facts of  the  case.   Secondly,
the ANG’s and the WG/CC’s comments that lead one to believe the  onset
of his disease happened after he arrived back in the US and  while  he
was not on duty as a member of the AF or the IAANG is addressed  quite
clearly by AFI 36-2910, where in it states: “Existed Prior to  Service
(EPTS) – Terms added to a  medical  diagnosis  where  there  is  clear
evidence that a illness, injury, or disease, the underlying  condition
causing it, existed before the member’s entry into  military  service,
and was not aggravated by  service.   EPTS  diseases  include  chronic
diseases and diseases with  an  incubation  period  that  rule  out  a
finding that they started during inactive duty training,  active  duty
training, or tours of active  duty.”   He  contends  no  such  medical
diagnosis was made, indeed, not even a medical opinion  supporting  an
EPTS was put forth.

Since the formal LOD investigation did not  find  him  absent  without
authority, or any misconduct, and no medical diagnosis was made of  an
EPTS, then there is only one finding left of the four for the Board to
choose that applies to his situation: His medical condition was in the
LOD.

The applicant’s complete response is at Exhibit D.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

The BCMR Medical Consultant contends although it is plausible  he  may
have developed a venous clot related to his February flight, there  is
no convincing evidence that he did.  Eighteen days after  the  flight,
he reported no health concerns  at  the  time  of  a  post  deployment
medical assessment.  His reported  symptom  of  fatigue  is  too  non-
specific.  A medical evaluation in  April  2003  identified  no  other
underlying risk factors other  than  recent  travel.   The  weight  of
evidence of the medical literature indicates that  the  risk  for  the
development of acute DVT/PTE after four weeks following prolonged  air
travel becomes vanishingly small and the development of the  condition
over four weeks later is either due  to  other  factors  or  a  chance
unrelated occurrence.  In his case, it is clear  the  later  ski  trip
represented significant risks of immobility  (and  possible  prolonged
exposure to altitude) that occurred in close temporal proximity to the
onset of clinical symptoms reported  in  the  contemporaneous  medical
records.  The preponderance of the evidence of the medical records and
of the medical literature does not support his request for  correction
of military records.

The remaining pertinent medical facts are contained in the  evaluation
prepared by the BCMR Medical Consultant at Exhibit E.

_________________________________________________________________

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  took  notice  of   the
applicant's complete submission in judging the  merits  of  the  case;
however, we agree with the opinions and  recommendations  of  the  Air
National Guard office of primary responsibility and the AFBCMR Medical
Consultant and adopt their rationale as the basis for  our  conclusion
that the applicant has not been the victim of an error  or  injustice.
The preponderance of the evidence tends to support the  onset  of  the
disease as being after his deployment and not during his  active  duty
tour. Additionally, the medical records and the weight of the  medical
literature indicates that  the  risk  for  the  development  of  acute
DVT/PTE after  four  weeks  following  prolonged  air  travel  becomes
vanishingly small and the development of the condition over four weeks
later is either due to other factors or a chance unrelated occurrence.
 Therefore, in the absence of evidence to the  contrary,  we  find  no
compelling 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 AFBCMR Docket Number BC-
2005-00956  in  Executive  Session  on  18  January  2006,  under  the
provisions of AFI 36-2603:

      Ms. Kathleen F. Graham, Panel Chair
      Mr. Wallace F. Beard, Jr., Member
      Ms. Josephine L. Davis, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 9 Mar 05, w/atchs.
    Exhibit B.  Letter, ANG/DPFOC, dated 14 Nov 05, w/atch.
    Exhibit C.  Letter, SAF/MRBR, dated 18 Nov 05.
    Exhibit D.  Letter, Applicant, dated 26 Nov 05.
    Exhibit E.  Letter, BCMR Medical Consultant, dated 19 Jul 06.



                                   KATHLEEN F. GRAHAM
                                   Panel Chair