RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2014-00792
	XXXXXXXXXX	COUNSEL: NONE
			HEARING DESIRED: YES


APPLICANT REQUESTS THAT:

His AF Form 356, Findings and Recommended Disposition of USAF 
Physical Evaluation Board and Special Orders NO. ACD-2375 dated 
12 August 1993, be amended to reflect that his injury was caused 
by an “instrumentality of war.”


APPLICANT CONTENDS THAT:

The term “instrumentality of war” was not clearly defined at the 
time of his discharge in 1993 and not available until AFI 36-
3212, Physical Evaluation for Retention, Retirement, and 
Separation, was published in 2006. Therefore, it was not 
available to the Physical Evaluation Board (PEB) and the 
retirement section.  Furthermore, the C-141 he was injured on 
was a military transport aircraft that was used exclusively by 
the Air Force to transport goods, material, weapons and 
personnel in war.  Therefore, this aircraft should fall under 
the definition of an “instrumentality of war.”  Correcting this 
error will adjust his service computation date and ensure he is 
credited for his military service.

The Board should find it in the interest of justice to consider 
his untimely application because he did not discover the error 
until Human Resources at the Department of Transportation 
advised him of the possible error.

In support of his request, the applicant provides a personal 
statement, copies of his DD Form 214, Certificate of Release or 
Discharge from Active Duty; Medical Board Report, orders, and 
various other documents associated with his requests.

His complete submission, with attachments, is at Exhibit A.


STATEMENT OF FACTS:

According to an AF Form 356 dated 28 July 1993, an Informal PEB 
(IPEB) found the applicant unfit based on a diagnosis of 
“Patello-femoral syndrome, severe, right knee.”  Accordingly, 
the IPEB recommended he be permanently retired with a disability 
rating of 30 percent.

According to AF Form 1180, dated 9 August 1993, the applicant 
agreed with the findings of the IPEB.

According to Special Order ACD-2375 dated 12 August 1993, the 
applicant was discharged from active duty effective 22 September 
1993 and permanently disability retired with a 30 percent 
disability rating.  He served on active duty for 14 years, 
5 months and 17 days.


AIR FORCE EVALUATION:

AFPC/DPFD recommends denial.  The preponderance of evidence 
reflects that no error or injustice occurred during the 
disability process or at the time of the applicant’s retirement.  
The applicant claims that his condition was caused by an 
instrumentality of war.  AFR 35-4, Physical Evaluation for 
Retention, Retirement, and Separation, dated 28 June 1989, 
Section 3.44b (4) states “Instrumentality of War - The PEB may 
make a favorable determination if the disability was incurred 
during a 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.”  While the applicant's medical narrative states that 
he jumped from a burning C-141 in 1982, there is no formal line 
of duty as to how the fire started in the C-141 that caused the 
applicant to jump.  Based on definition and the facts and 
circumstances involved, the IPEB determined that the applicant's 
medical condition was not caused by an instrumentality of war or 
a direct result of armed conflict.

The complete DPFD evaluation is at Exhibit C.

AFPC/JA recommends denial.  The crux of the applicant's argument 
is that the IPEB should have found the C-141 was an 
instrumentality of war and that his injury was caused by it.  He 
alleges the IPEB and the retirement section did not have a clear 
definition of the term “instrumentality of war” in 1993.  He 
presumes the IPEBs would have defined the C-141 airplane as an 
“instrumentality of war” had the definition found in AFI 36-
3212 been available to the IPEB in 1993.  At the time of the 
applicant's IPEB in 1993, AFR 35-4, section 3-44(b), stated, in 
regard to “instrumentality of war” that “the PEB may make a 
favorable determination if the disability was incurred during 
any period of service as a result of such diverse causes as 
wounds caused by military weapon, accidents involving a military 
combat vehicle, injury, or sickness caused by fumes, gases, or 
explosions of military ordinances, vehicles, or material."  The 
applicant alleges that it was not until AFI 36-3212 was 
published that it explained, “in detail the term 
[instrumentality of war] and how to apply the term.”  However, 
AFI 36-3212, paragraph. 3.27.2.1.4, recites the same language 
quoted above from AFR 35-4.  The term “instrumentality of war” 
is defined in AFI 36-3212, and is arguably less favorable to the 
applicant's position.  AFI 36-3212 defines the term as 
“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, and the disability 
must be incurred incident to a hazard or risk of the service.” 
[emphasis added].

Transport planes, such as the C-141, are not designed primarily 
for military service.  There are other cargo planes used outside 
the military to carry both passengers and cargo, i.e. commercial 
airlines, FedEx.  The hazard in this case was a fire on the 
plane, which is not unique to a military aircraft or military 
service.  The applicant is an aircraft mechanic, and the risk of 
an injury from an engine fire while working on any airplane, 
whether civilian or military, would apply to both civilian and 
military mechanics.  The applicant has not provided any evidence 
to support his allegation that the C-141 is an instrumentality 
of war.

The complete JA evaluation is at Exhibit D.


APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION:

On 18 November 2014, copies of the Air Force evaluations were 
forwarded to the applicant for review and comment within 
30 days.  As of this date, no response has been received by this 
office (Exhibit E).


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 office of primary 
responsibility and AFPC/JA and adopt their rationale as the 
basis for our conclusion the applicant has not been the victim 
of an error or injustice.  Therefore, in the absence of evidence 
to the contrary, we find no basis to recommend granting the 
relief sought in this application.

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 issue(s) 
involved.  Therefore, the request for a hearing is not favorably 
considered.


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 this application 
in Executive Session on 15 January 2014, under the provisions of 
AFI 36-2603:

       , Panel Chair
       , Member
       , Member

The following documentary evidence pertaining to AFBCMR BC-2014-
00792 was considered:

Exhibit A.  DD Form 149, dated 18 February 2014, w/atch.
Exhibit B.  Applicant's Master Personnel Records.
Exhibit C.  Letter, AFPC/DPFD, dated 4 September 2014.
Exhibit D.  Letter, AFPC/JA, dated 28 October 2014.
Exhibit E.  Letter, SAF/MRBR, dated 17 November 2014.