RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 	DOCKET NUMBER: BC-2014-00166
					COUNSEL:  NONE
		HEARING DESIRED:  NO 


APPLICANT REQUESTS THAT:

1.  His AF Form 356, Findings and Recommended Disposition of USAF 
Physical Evaluation Board (PEB), dated 27 Oct 10, be changed to 
characterize his injury as a direct result of war/instrumentality 
of war and as a result of an armed conflict.  

2.  His DD Form 214, Certificate of Release or Discharge from 
Active Duty, issued in conjunction with his 24 Jan 11 separation 
be changed in Item 12f, Foreign Service, to reflect his foreign 
service.


APPLICANT CONTENDS THAT:

His Medical Evaluation Board (MEB) Summary written by his doctor 
provides evidence that an irreversible injury occurred while he 
was deployed in support of Operation ENDURING FREEDOM (OEF), in 
2009.  

He continued to fly despite his injury, but was physically unable 
after executing one Air-to-Air Training Sortie (instrumentality of 
war) upon his return from an OEF deployment.  His neck damage was 
too severe and prevented him from continuing flying status.

His deployment medical record documents "conservative therapy" 
(spinal manipulations and physical therapy); however, it was not 
incorporated in his file that was considered by the MEB. 

In support of his requests, the applicant submits copies of his 
MEB Summary, DVA Rating Decision, flight record and various other 
documents associated with his requests.

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


STATEMENT OF FACTS:

According to the information provided by the Air Force Office of 
Primary Responsibility (OPR), on 31 Aug 10, the Informal Physical 
Evaluation Board (IPEB) received this case after a MEB was 
conducted at Seymour Johnson AFB NC.  On 27 Oct 10, the IPEB 
reviewed the case and recommended permanent retirement due to 
diagnosis of cervicalgia with radiculopathy with a disability 
rating of 30 percent.  At that time, the IPEB determined that his 
disability was not combat related, a direct result of armed 
conflict or an instrumentality of war.  The narrative summary, 
dated 12 Aug 10 noted the first documented visit for the 
applicant's symptoms of neck pain was in Apr 04.  While deployed 
in Jul 09, his neck pain became more severe and conservative 
therapy provided minimal benefit lasting only a few days.

On 12 Nov 10, the applicant concurred and requested a shorter 
separation date of 24 Jan 11.  Special Order ACD-00347 was issued 
on 15 Nov 10.  

On 24 Jan 11, the applicant was permanently disability retired, 
with compensable disability rating of 30 percent.  He was credited 
with 7 years, 7 months and 11 days of active service.


AIR FORCE EVALUATION:

AFPC/DPFD recommends denial of the applicant’s request to change 
his AF Form 356.  Air Force Instruction 36-3212, Physical 
Evaluation for Retention, Retirement, and Separation, Section 
3.26, Attachment 1, states: "Armed Conflict-Conflict between 
nations or other contestants entailing the physical destruction 
of, or injury to, one another's armed forces.  Armed conflict 
exists if the direct use of physical force endangers the lives or 
safety of members of the armed services of a nation, belligerent 
power, coalition, or faction.  Armed conflict includes war, 
expedition, occupation of an area or territory, battle, skirmish, 
raid, invasion, rebellion, insurrection, guerrilla action, riot, 
or any other action in which Air Force military personnel engage a 
hostile or belligerent nation, faction, or force.  It also 
includes incidents involving a member while interned as a POW or 
while detained against his or her will in custody of a hostile or 
belligerent force or while escaping or attempting to escape from 
such confinement, POW or detained status.

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 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 must be incurred 
incident to a hazard or risk of the service. "
Air Force Instruction 36-3212, Section 3.27.21, states: "Combat-
Related - The IPEB will make a combat-related disability 
determination for: Armed Conflict, Extra Hazardous Service, 
Conditions Simulating War and Instrumentality of War.  

If the applicant felt that his neck pain was caused by an 
instrumentality of war, armed conflict and wanted it to be 
classified as combat related, he had two opportunities to appeal 
for that to be considered.  Based on definition, the facts and 
circumstances involved, the IPEB determined the applicant's 
medical condition was not caused by an instrumentality of war or a 
direct result of armed conflict.

The preponderance of evidence reflects that no error or injustice 
occurred during the disability process or at the time of 
retirement.

The complete DPFD evaluation is at Exhibit C.


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant 
on 15 May 14 for review and comment within 30 days.  As of this 
date, no response has been received by this office (Exhibit D).


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 an error or injustice.  We took 
notice of the applicant’s complete submission in judging the 
merits of the case; however, we agree with the opinion and 
recommendation of the Air Force office of primary responsibility 
(OPR) and adopt its rationale as the basis for our conclusion the 
applicant has not been the victim of an error of injustice.  
Therefore, in the absence of evidence to the contrary, we find no 
basis to recommend granting the requested relief.


THE BOARD DETERMINES THAT:

The applicant be notified the evidence presented did not 
demonstrate the existence of material error or injustice; the 
application was denied without a personal appearance; and 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-2014-00166 in Executive Session on 12 Nov 14 under the 
provisions of AFI 36-2603:

	, Panel Chair
	, Member
	, Member

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 7 Jan 14, w/atchs.
	Exhibit B.  Pertinent Excerpts from Personnel Record.
	Exhibit C.  Letter, AFPC/DPFD, dated 11 Apr 14.
Exhibit D.  Letter, SAF/MRBR, dated 15 May 14.