RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBER:  BC-2007-03452
                                             INDEX CODE:  108.07, 108.08,
                                               108.10
      XXXXXXXXXXXXXXX                   COUNSEL:  NONE

                                             HEARING DESIRED:  NO

________________________________________________________________

APPLICANT REQUESTS THAT:

His retirement orders be  changed  to  reflect  that  his  service-connected
disabilities were combat related, caused by an instrumentality of  war,  and
were incurred in the line-of-duty during a period of war.

His retirement date be changed from 8 August 1994 to 1 August 1996  to  give
him 20 years of active duty service.

________________________________________________________________

APPLICANT CONTENDS THAT:

The Informal Physical Evaluation Board (IPEB) failed  to  properly  enter  a
finding that his coronary artery disease was caused  by  an  instrumentality
of war and incurred in the line-of-duty  during  a  period  of  war,  solely
because he was medically retired in 1994.

The instability of his condition  at  the  time  his  case  was  adjudicated
should have resulted in his placement on the  Temporary  Disability  Retired
List (TDRL) for a period of up to five years.

In support of his appeal, he has provided copies of  a  personal  statement,
an AF Form 2096, Classification/On-the-Job Training Action, placing  him  in
Patient Status, a Cardiac Catheterization Report from the Bethesda  National
Naval Medical Center, a Medical Board Report referring him to  the  Physical
Evaluation Board (PEB), the Findings  and  Recommended  Disposition  of  the
PEB, a Physical Evaluation Action Memorandum from the  Air  Force  Personnel
Council, his concurrence with the Revised Recommended Findings  of  the  Air
Force  Personnel  Council,  an  AFMPC/DPMADS1  131524Z  June  1994   message
pertaining to his disability retirement, his retirement order, his  DD  Form
214, and  a  Department  of  Veterans  Affairs  (DVA)  Rating  Decision  and
supporting documents.

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

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STATEMENT OF FACTS:

The applicant initially entered the Regular Air Force on 20 June  1976,  and
was serving as a morale, welfare, recreation and services craftsman  at  the
time of his permanent disability retirement in the grade of  staff  sergeant
(SSgt – E-5), with a 30 percent disability rating.

In early 1993,  the  applicant  began  experiencing  exertion-induced  chest
pain.  After medical testing revealed he was suffering from coronary  artery
disease, he was subsequently referred to the IPEB for  adjudication.   On  4
March 1994, the  IPEB  found  him  unfit  for  further  military  duty,  and
recommended he be placed on the TDRL “due to the relatively recent onset  of
illness”, with a 30 percent disability  rating.   The  Air  Force  Personnel
Board (AFPB) reviewed his case and disagreed with the  IPEB’s  determination
that his coronary disease was unstable, and directed that he be  permanently
retired instead of being placed on the  TDRL.   On  22 April  1994,  he  was
notified of the AFPB’s Revised Recommended Findings (RRF),  and,  on  3  May
1994, designated with his signature that “I agree with  the  RRF.”   At  the
time of his permanent disability retirement on 8 August 1994, he had  served
a total of 18 years, 1 month, and 19 days of net active service.

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AIR FORCE EVALUATION:

AFPC/DPSD recommends denial of the applicant’s  request  to  change  his  AF
Form 356, Findings and Recommended Disposition of USAF  Physical  Evaluation
Board, dated 4 March 1994, to reflect  that  his  disability  was  a  combat
related injury and caused by an instrumentality of war.

Per Air Force Regulation  (AFR)  35-4,  section  3-43(b):   “Combat-Related-
Extra Hazardous Service.  Assignment to a military occupation entitling  the
member to hazardous duty pay, such as parachute,  flight  deck,  demolition,
experimental stress, or leprosarium duty.  Flight pay may be included if  it
involves other than routine training flights and there  is  enough  evidence
of record to show that extremely hazardous duty factor  was  present.”   AFR
35-4,  section  3-43(b)  also  states:   “Instrumentality  of   War.    This
determination is made only when the physical defect or condition was  caused
by an instrumentality of war and was incurred in the line-of-duty  during  a
period of war and that  defect  or  condition,  standing  alone,  makes  the
member unfit.”  The Board determined that his coronary  artery  disease  was
not found to be caused by an instrumentality of war and his injury  was  not
a direct result of armed conflict.

The AFPC/DPSD evaluation is at Exhibit C.

AFPC/JA recommends denial of the requested relief.  The application has  not
been filed within three years of the applicant’s “discovery”  of  his  claim
and should be denied on that basis alone.  The interests  of  justice  would
not be served by excusing his  failure  to  submit  this  issue  within  the
required time period as such waivers should  be  limited  to  situations  to
preclude an actual injustice.

Timeliness aside, the applicant’s claim also fails  on  the  merits.   After
reviewing his claim and the evidence available, there is no  basis  for  the
Board  to  declare  his  coronary  artery   disease   was   caused   by   an
instrumentality of war and was incurred in the line-of-duty during a  period
of war, and neither the IPEB nor the AFPB  found  that  his  disability  was
caused by an instrumentality of war or  was  incurred  in  the  line-of-duty
during a period of war.

Instrumentality of War – A vehicle, vessel,  or  device  designed  primarily
for Military Service and intended for use in such Service  at  the  time  of
the occurrence of the injury.  It may also be a vehicle, vessel,  or  device
not designed  primarily  for  Military  Service  if  use  of  or  occurrence
involving such a vehicle, vessel, or device subjects  the  individual  to  a
hazard peculiar to Military Service.  This use or  occurrence  differs  from
the use of or occurrence under similar circumstances in  civilian  pursuits.
There  must  be  a  direct  causal  relationship  between  the  use  of  the
instrumentality of war and  the  disability,  and  the  disability  must  be
incurred incident to a hazard or risk of service.

The applicant’s disability plainly does not fall into  this  classification.
There is  no  question  his  injuries  occurred  during  a  covered  period;
however, he fails to  present  evidence  linking  the  onset  of  his  heart
disease with military “a vehicle, vessel, or device.”  Designating a  heart-
related disability as being caused by an  instrumentality  of  war  when  it
occurred at Seymour-Johnson AFB,  NC,  exceeds  the  Department  of  Defense
Instruction’s (DODI’s) unambiguous intent to restrict this finding to  those
service members who were injured  while  directly  experiencing  the  unique
hazards of military service.

Additionally, the applicant seeks to have his DD Form 214  changed  to  show
that he served 20 years on active duty.  In  this  sense,  he  mistakes  the
nature of the TDRL which he claims he should have been placed on instead  of
being permanently retired.  Members on the TDRL are not given  service  time
while awaiting final disposition of their cases.  His current argument  that
because the AFPB erred in permanently retiring him, the time he  would  have
spent on the TDRL should be used in the  computation  of  his  total  active
service - thus permitting him to be credited with 20 years of service  -  is
a legally ineffectual assertion and it  exceeds  the  Board’s  authority  to
grant this relief.

Lastly, the applicant was  evidently  satisfied  in  1994  with  the  AFPB’s
determination and determined it would be in his  best  interests  to  accept
the AFPB’s decision that he was unfit for  further  service  and  should  be
permanently retired with a  30  per  cent  disability  rating.   He  made  a
knowing, intelligent, and voluntary decision to  forgo  his  opportunity  to
contest the AFPB’s findings on this issue  at  that  time.   In  failing  to
demand a formal hearing, he “foreclosed any fight  to  contest  [the  AFPB’s
decision].”  Moreover, by signing the document  in  which  he  accepted  the
AFPB’s findings, he certified that he understood his options and  agreed  to
accept this board’s decision on whether he should have been  placed  on  the
TDRL and whether his disability was caused by  an  instrumentality  of  war,
and there is no reason to doubt its legal efficacy in this case.

The AFPC/JA evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Complete copies of the evaluations were forwarded to  the  applicant  on  22
February 2008, for review and comment, within 30 days.  However, 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.  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 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.   After
reviewing his claim and  the  evidence  available,  there  is  no  basis  to
declare his coronary artery disease was caused by an instrumentality of  war
and was incurred in the line-of-duty during a period of war,  or  to  change
his retirement date to credit him with 20 years of service.   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  Docket  Number  BC-2007-03452
in Executive Session on 16 April 2008, under the provisions of AFI 36-2603:

                       Mr. Thomas S. Markiewicz, Chair
                       Ms. Mary C. Puckett, Member
                       Ms. Barbara J. Barger, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 28 Nov 07, w/atchs.
    Exhibit B.  Applicant's Available Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPSD, dated 24 Jan 08.
    Exhibit D.  Letter, AFPC/JA, dated 12 Feb 08.
    Exhibit E.  Letter, SAF/MRBR, dated 22 Feb 08.




                                   THOMAS S. MARKIEWICZ
                                   Chair