RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF: 	DOCKET NUMBER: BC-2014-00395

					COUNSEL:  NONE

		HEARING DESIRED:  YES



APPLICANT REQUESTS THAT:

His retirement order be corrected to reflect his disabilities were received in the line of duty as the direct result of armed conflict, caused by an instrumentality of war, incurred in the line of duty during a period of war, or were the direct result of a combat related injury.


APPLICANT CONTENDS THAT:

His disability is due to his deployment to Iraq during the Gulf War.  The “burn pits” at Balad Air Base, Iraq, contained chemical hazards which were released into the air and were the cause of his medical condition. 

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


STATEMENT OF FACTS:

According to the documentation provided by the applicant:

	a.  The applicant initially entered the Air Force on 23 Jul 95.  

	b.  He served at Ballad AB, Iraq during the period Nov 03 through Mar 04.

	c.  On 14 Apr 06, the applicant was examined at a civilian Hematology-Oncology Practice due to frequent headaches and fatigue.

	d.  On 20 Jun 07, the applicant was diagnosed by the Mayo Clinic as having “Polycythemia Vera (PV).” 

	e.  On 29 Oct 07, a Formal Physical Evaluation Board (FPEB) found the applicant unfit for duty and recommended he be placed on the Temporary Disability Retirement List (TDRL) for his PV and a myocardial infarction (non-cardiac chest pain) with a compensable disability rating of 100 percent.  

On 17 Dec 07, the applicant was relieved from active duty and transferred to the TDRL, effective 18 Dec 07.

On 13 May 08, the Department of Veteran Affairs (DVA) determined the applicant’s PV was service connected, and issued him a 100 percent compensable disability rating, effective 19 Dec 07. 

On 12 Jun 09, an IPEB, in conducting a periodic review of the applicant’s TDRL status, determined his disability was permanently unfitting and recommended he be removed from the TDRL and permanently retired with a 100 percent disability rating.  

Under Special Order Number ACD-01931, dated 18 Aug 09, the applicant was removed from the TDRL effective 7 Sep 09; credited with 12 years, 3 months, and 25 days of active duty; and officially retired with a compensable percentage of 100 percent for his physical disabilities.  His retirement order specifically states the applicant’s physical disability was not received 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, and was not the direct result of a combat related injury.

The remaining relevant facts pertaining to this application are contained in the memoranda prepared by the Air Force offices of primary responsibility (OPR), which are attached at Exhibits C and D.


AIR FORCE EVALUATION:

AFPC/DPFD recommends denial indicating there is no evidence of an error or an injustice.  Per AFI, 36-3212, Physical Evaluation For Retention, Retirement, And Separation, the IPEB will make a combat-related disability determination for:  Armed Conflict, Extra Hazardous Service, Conditions Simulating War, and Instrumentality of War.  The IPEB and FPEB both determined his medical conditions were not caused by an instrumentality of war or as a direct result of armed conflict.  The applicant concurred with the findings.  If the applicant felt his symptoms were caused by burn pits and should be determined to be combat related, he had two opportunities to appeal his IPEB’s findings.  

A complete copy of the AFPC/DPFD evaluation is at Exhibit C.

The BCMR Medical Consultant recommends denial indicating there is no evidence of an error or an injustice.  The applicant entered the Disability Evaluation System for a medical condition involving his blood called Polycythemia Vera (PV); manifested by a much greater than normal level of circulating platelets [the blood component with a big role in blood clotting] and volume of red blood cells at a given time [the oxygen carrying cells of the blood].  On 10 Aug 07, an IPEB recommended the applicant receive permanent retirement for a diagnosis of PV with a disability rating of 40 percent.  The applicant non-concurred with the IPEB determination, and requested a formal hearing with counsel.  On 29 Oct 07, a FPEB found the applicant unfit for duty and recommended placing him on the TDRL for the diagnosis of PV and a myocardial infarction, with a compensable disability rating of 100 percent.  The Jun 09, the IPEB which recommended transferring the applicant from the TDRL to permanent medical retirement, opined that his medical condition was not the direct result of armed conflict or caused by an instrumentality of war and was not the direct result of a combat related injury.  

In accordance with DoDI 1332.38, Physical Disability Evaluation, the qualifying information for each of the relevant categories is:

	a. Armed Conflict (E3.P5.1.2):  The physical disability is a disease or injury incurred in the line of duty as a direct result of armed combat.  The fact that a member may have incurred a disability during a period of war or in an area of armed conflict, or while participating in combat operations is not sufficient to support this finding.  There must be a definitive causal relationship between armed conflict and the resulting unfitting disability.  

	b. Instrumentality of War (E3.P5.2.2.4):  Incurrence during a period of war is not required.  A favorable determination is made if the disability was incurred during any period of service as a result of such diverse causes as wounds caused by a military weapon, accidents involving a military combat vehicle, injury, or sickness caused by fumes, gases, or explosion of military ordnance, vehicles, or material.  However, there must be a direct causal relationship between the instrumentality of war and the disability.  For example, an injury resulting from a Service member falling on the deck of a ship while participating in a sports activity would not normally be considered an injury caused by the instrumentality of war (the ship) since the sports activity and not the ship caused the fall.  

The applicant’s medical records show an episode of care, dated 14 Apr 06, during which the provider noted the applicant returned from Iraq two years previously, reporting having blood work completed on an annual basis, and that he did not have abnormal blood counts prior to this.  The BCMR Medical Consultant opines that the open burn pits utilized in Iraq were a temporary method of waste disposal and were not an Instrumentality of War.  Therefore, the smoke emanating from the burn puts, although allegedly causing the applicant’s illness [and rendering it service incurred], would not qualify as an Instrumentality of War.  Similarly, although allegedly caused during a period of war, or in an area of armed conflict, the applicant’s illness is not the direct result of armed conflict, and at best would be considered indirect result of armed conflict.  

A complete copy of the BCMR Medical Consultant’s evaluation is at Exhibit D.


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

He takes exception to each of the two Air Force advisories.  The AFPC/DPFD advisory states that if he felt his symptoms were caused by the burn pits and should be determined to be combat related, he had to opportunities to appeal the IPEB’s findings.  However, at the time he was unaware of the direct link between the burn pits and his illnesses.  It was not until 2010 that he heard the DVA had started to link member’s medical conditions to the burn pits, so he could not have appealed the IPEB decisions at the time.

The BCMR Medical Consultant cites DoDI, para E3.P5.2.2.4. Instrumentality of War.  It also states a FAVORABLE determination is made if the disability was incurred during any period of service as a result of such diverse causes as wounds caused by a military weapon, accidents involving a military combat vehicle, injury, or SICKNESS caused by FUMES, GASES, or explosion of military ordnance, vehicles, or materials.  He finds the BCMR Medical Consultant’s comments that the burn pits were a temporary method of waste disposal and not an instrumentality of war, and that the applicant’s illnesses would be at best the indirect result of armed conflict, very insulting and extremely false.  It was the only source of waste disposal and he was exposed to some very nasty toxins that link directly to his medical conditions, and he was under orders to use the burn pits on a daily basis.

He has a condition which is going to kill him a lot earlier than he should die and he contracted the condition in support of his country while fighting in a war zone by being exposed to toxins.  This could have been avoided if the correct disposal equipment was available.  He asks the board members to read all the information on the burn pits to perform their due diligence and not rely on the opinions of others who were not there (Exhibit F).   


ADDITIONAL AIR FORCE EVALUATION:

SAF/MRBP does not make a recommendation, but states that the Secretary of the Air Force Personnel Council (SAFPC) has not determined that burn pits are an instrumentality of war in any of its cases.  SAFPC routinely considers appeals requesting combat-related/instrumentality of war designations for disability.  The requisite analysis for instrumentality of war first requires determining whether the vehicle, vessel, or device meets the basic definition of instrumentality of war (i.e., designated primarily for military service and intended for use in such service at the time of the occurrence or injury).  With regard to burn pits, they would not meet the basic definition because burn pits, in general, are not designated primarily for military service.  SAFPC has not determined that the military’s use of burn pits to incinerate trash or waste has differed from the use or occurrence under similar circumstances in civilian pursuits; therefore, SAFPC has not determined in any of its cases that burn pits were an instrumentality of war.  

A complete copy of the SAF/MRBP evaluation is at Exhibit G.


APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

A copy of the additional Air Force evaluation was forwarded to the applicant on 30 Jan 15 for review and comment within 30 days (Exhibit H).  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 an error or injustice.  We took notice of the applicant’s complete submission, to include his rebuttal response to the advisory opinion, in judging the merits of the case; however, we agree with the opinion and recommendation of the BCMR Medical Consultant and adopt his rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice.  While we note the applicant’s contention that the burn pits at Ballad AB, Iraq were an instrumentality of war, the Board agrees with the findings of the IPEB, PEB, and the recommendations of the BCMR Medical consultant and SAF/PC that burn pits do not meet the definition of an instrumentality of war.  In addition, even though the applicant’s medical condition was determined to be unfitting for further military service, and he officially retired with a compensable disability rating of percentage 100 percent, his retirement orders specifically state the applicant’s physical disability was not received 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, and was not the direct result of a combat related injury.  While the applicant’s arguments are duly noted, we are not convinced the burn pits constitute an instrumentality of war and are therefore not convinced that corrective action is warranted.  We are not unmindful of the applicant’s service to the Nation, but believe the Air Force and Department of Veterans Affairs determinations that he should be granted a 100 percent disability rating for his duty related conditions was proper and fitting and will ensure that he receives the medical care and compensation appropriate to his circumstances.  Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief.

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 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-2014-00395 in Executive Session on 22 Jan 15 under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence pertaining to AFBCMR Docket Number BC-2014-00395 was considered:

	Exhibit A.  DD Form 149, dated 23 Jan 14, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPFD, dated 27 Feb 14.
	Exhibit D.  Memorandum, BCMR Medical Consultant, dated 7 Jul 14.
	Exhibit E.  Letter, SAF/MRBR, dated 28 Jul 14.
	Exhibit F.  Letter, Applicant, undated. 
	Exhibit G.  Memorandum, SAF/MRBP, dated 29 Jan 15.
	Exhibit H.  Letter, SAF/MRBR, dated 30 Jan 14.