RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:	DOCKET NUMBER:  BC-2014-00953

		COUNSEL:  NONE

		HEARING DESIRED:  YES


APPLICANT REQUESTS THAT:

His records be corrected to reflect his permanent disability was received in the line of duty, as a direct result of armed conflict or caused by instrumentality of war, and during a period of war.  

By amendment at Exhibit E, his disabilities be classified as combat related.  

His unfitting conditions include his neck, shoulders, elbows, and knees.  

His disability rating be changed from 40 percent to 50 percent.

He receives recognition for his service.  


APPLICANT CONTENDS THAT:

His entire Physical Evaluation Board (PEB) was poorly handled.  His retirement orders erroneously indicate that his injuries were not incurred as a direct result of armed conflict, while engaged in extra hazardous service on an instrumentality of war during a period of war.  However, his injuries were incurred due to a pilot performing evasive maneuvers to avoid enemy fire while he was performing duties as a C-130 Loadmaster on a C-130 aircraft during a combat mission from Bagram Air Base (AB), Afghanistan to Manas AB, Kyrgyzstan on 24 November 2009.  As such his records should be corrected.  

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


STATEMENT OF FACTS:

The applicant’s military personnel records indicate he served in the Air National Guard (ANG) and as a member of the Reserve of the Air Force in the grade of staff sergeant (E-5) during the matter under review.
On 15 December 2009, an AF IMT 348, Line of Duty (LOD) Determination, was initiated to evaluate a three week history of the applicant’s numbness and tingling in his thigh.  It was determined that while the applicant was deployed on active duty, he exhibited symptoms of numbness and tingling.  There was no evidence of prior known conditions and unsure of cause of events.  

On 23 December 2009, the applicant’s immediate commander recommended his condition be found in Line of Duty.

On 28 December 2009, the staff judge advocate (SJA) concurred with the recommendation of in Line of Duty.  

On 12 January 2010, the LOD appointing authority determined the findings in Line of Duty.  

On 26 January 2010, a LOD was initiated to evaluate the applicant’s numbness and tingling in his thigh, disc bulge and bilateral facet arthropathy, disc protusion and associated annular fissure.  It was determined that while the applicant was on active duty deployed to Afghanistan he somehow sustained an injury or condition to his back that caused him numbness/tingling in his thigh.  A likely cause would be handling the heavy pallets his job requires.  

On 27 January 2010, the applicant’s immediate commander recommended his condition be found in Line of Duty.  

On 29 January 2010, SJA concurred with the recommendation of in Line of Duty.  

On 4 February 2010, the LOD appointing authority determined the findings in Line of Duty.  

On 27 April 2010, the applicant acknowledged that he was briefed on the Disability Evaluation System (DES) process, he could request an Air Force physician or other appropriate health care professional (not involved in his MEB process) to offer an impartial review of the medical evidence, and his responsibility to file a disability claim with the Department of Veterans Affairs (DVA), if so desired.  

On 12 January 2011, an AF Form 469, Duty Limiting Condition Report, was initiated that placed duty and mobility restrictions upon the applicant, which precluded him from worldwide duty due to a medical defect/condition that required a Medical Evaluation Board (MEB) or PEB.  

On 8 March 2011, a SF Form 502, Narrative Summary (Clinical Resume), was initiated due to the applicant’s chief complaint of chronic back pain.  The onset began late 2009 while deployed and was exacerbated by lifting crates, patients, and other cargo.  The applicant also complained of burning, sharp constant pain, tenderness and tingling moderate to severe pain in his lower extremities and back.  It was determined that the applicant was precluded from a reasonable fulfillment of the purpose of his employment in the military service and a favorable MEB for continued military service would not benefit the United States Air Force.  

On 1 April 2011, a MEB convened to consider the applicant for continued active duty.  The applicant was diagnosed with chronic back pain with the approximate date of origin on 23 December 2009.  The MEB recommended the applicant be returned to duty and referred to an Informal Physical Evaluation Board (IPEB).  

On 7 April 2011, the chief nurse approved the Board’s recommendation.  

On 8 April 2011, the applicant acknowledged receipt of the Board’s findings and recommendations.  He elected to have an impartial review of his MEB to ensure the complete spectrum of his injuries and/or illnesses have been addressed.  

On 3 May 2011, the applicant was advised that the narrative summary and MEB package do not adequately reflect his complete spectrum of injuries or illness.  The physician requested an evaluation by neurosurgery or orthopedic surgery with an opinion on the merits of possible surgery to treat his condition.  As an alternative, the applicant could provide a statement indicating no interest in surgery.  

On 26 October 2011, the applicant was ordered to active duty for the period 13 January 2010 through 24 December 2011 for the purpose of Medical Continuation (MEDCON).  

On 8 December 2011, the Chief of Aerospace Medicine indicated that since March 2011 the applicant continued to seek medical management and treatment for his chronic back pain.  He opined that granting the applicant a retention disposition would compromise his safety and/or his colleagues, to include compromising the Air Force mission.  

On 13 January 2012, IPEB president suspended the PEB proceedings and requested thoracolumbar spine Range of Motion (ROM) measurements to determine the applicant’s fitness for duty and disability rating.  

On 6 February 2012, the IPEB determined the applicant was unfit for his duties due to his diagnosis of Degenerative Disc Disease with associated Low Back Pain and recommended permanent retirement with a disability rating of 40 percent.  

On 16 February 2012, the applicant concurred with the findings and recommended disposition of the IPEB and waived his right to a formal PEB hearing. 

On 22 February 2012, officials with the Office of the Secretary of the Air Force (SAF) determined the applicant to be permanently retired under the provisions of 10 USC § 1201.  

On 27 April 2012, the applicant was relieved from active duty and permanently disability retired in the grade of staff sergeant (E-5) per Air Force Instruction 36-3212 with a compensable percentage of 40 percent for his non-combat related physical disability, effective 28 April 2012.  The applicant was credited with 14 years and 18 days total service for retirement.  

The Department of Defense (DoD) and the Department of Veterans Affairs (DVA) disability evaluation systems operate under separate laws.  Under Title 10, U.S.C, Physical Evaluation Boards must determine if a member’s condition renders them unfit for continued service relating to their office, grade, rank or rating.  The fact that a person has a medical condition does not mean that the condition is unfitting for continued military service.  The DoD also rates disabilities based on the member’s condition at the time of evaluation.  Under Title 38, the DVA may rate any service-connected condition based upon future employability or reevaluate based on changes in the severity of a condition.  

The remaining relevant facts pertaining to this application are described in the letter prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit C.  


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 retirement.  The applicant contends that his chronic low back pain should be deemed combat related.  However, in accordance with Air Force Instruction 36-3212, armed conflict is defined as 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 prisoner of war (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 is defined 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.  

The IPEB makes combat-related disability determinations and if the applicant felt that his chronic back pain symptoms were caused by lifting crates and patients in the AOR and should be classified as combat related, he had two opportunities to appeal the IPEB’s findings.  Based on definition, the facts and circumstances involved, the IPEB determined that the applicant’s medical conditions were not caused by an instrumentality of war or a direct result of armed conflict, but his prior back pain from 2009 was aggravated in the combat zone, but not combat related.  

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


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reiterates that his injuries were incurred in the line of duty during a period of war as indicated on his AF Form 356.  His injuries were not only a direct result of armed conflict and an instrumentality of war, but also was a result of extra hazardous service as a loadmaster.  Furthermore, his AF Form 356 indicates that his disability was incurred in a combat zone or incurred during the performance of duty in combat-related operations.  He performed duties as a loadmaster, which is considered extra hazardous service on an instrumentality of war.  The facts in his case clearly show that his back issues began during his 2009 deployment.  Although, it was stated that in 2011 his back pain was exacerbated; however, he was on a medical profile which prevented him from lifting more than 10 pounds and was prevented from performing his duties as a loadmaster from 2010-2012.  He is not claiming that his chronic low back pain be deemed combat related, but that the multitude of injuries sustained in the combat zone be deemed combat related.  

Contrary to being given two opportunities to appeal the IPEB’s findings, he was given one opportunity and was pressured into not appealing.  In addition, he had one week to make a decision, did not have a clear mind, and not properly advised by his Physical Evaluation Board Liaison Officer (PEBLO) when he agreed to the IPEB’s findings.  The IPEB never gave any merit to all the injuries he suffered in Afghanistan.  He continues to suffer constant and debilitating pain from several other injuries that were never taken into consideration.  

He would appreciate some kind of recognition for the sacrifice his family has made and continues to make for his service.  The entire process of his PEB was poorly handled from start to finish.  His disabilities are classified as combat related, the unfitting conditions which are compensable and ratable should be changed to reflect the true nature of his disabilities, and his disability rating should be increased to 50% due to the number of disability conditions that were never taken into consideration during the PEB process.  


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, to include his rebuttal, 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.  While the applicant’s contentions are duly noted, we find no evidence or documentation that would lead us to believe that the combat related determinations made at the final disposition were improper.  We noted the applicant’s request for recognition for his service; however, this request is outside the purview of the Board.  While we appreciate the personal sacrifice the applicant and his family endured, in view of the above and 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-2014-00953 in Executive Session on 6 January 2015, under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 26 February 2014, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, AFPC/DPFD, dated 1 May 2014.
Exhibit D.  Letter, SAF/MRBR, dated 22 September 2014.
Exhibit E.  Letter, Applicant, dated 10 October 2014.