RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:  			DOCKET NO:  01-02541
					INDEX CODE:  108.00

						COUNSEL:  NONE

						HEARING DESIRED:  YES

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APPLICANT REQUESTS:

Retroactive disability benefits; Reserve retirement benefits now rather than when he turns 60 years old; and, retroactive compensation for his pain and suffering, to include loss of leave from his Department of Defense employment.
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APPLICANT CONTENDS THAT:

His military retirement records and benefits should be reevaluated based on his diagnosis and treatment for cancer, which resulted from an injury sustained while on active duty.

In support of his request, the applicant submits a personal statement, copies of both his military and civilian medical records, a letter from his physician, a copy of a Line of Duty Injury Report of Investigation and additional documents associated with the issues cited in his contentions.  The applicant’s complete submission, with attachments, is at Exhibit A.
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STATEMENT OF FACTS:

On 7 Nov 95, the applicant was involuntarily relieved from his Reserve assignment in the Reserve grade of master sergeant (E-7) and assigned to the Retired Reserve Section and his name was placed on the USAF Reserve Retired List, effective 29 Dec 95.  The reason for this action was that he was being retired under the Reserve Transition Assistance Program (RTAP), having 20 or more years of satisfactory service.  The applicant was eligible for Reservist Special Separation Pay (RSSP) because he was involuntarily separated from the selected Reserve with 20 plus years of service.  He had completed a total of 26 years, 10 months and 10 days of satisfactory service.

The remaining relevant facts pertaining to this application, extracted from the applicant’s military records, are contained in the letter prepared by the appropriate offices of the Air Force at Exhibits C and D.
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AIR FORCE EVALUATION:

The AFBCMR Medical Consultant recommends the application be denied.  The AFBCMR Medical Consultant stated that the applicant was placed on the Retired Reserve List at age 45, eligible to begin retired pay at age 60, which will be in 2010.  In May 92, while on active duty orders, the applicant sustained an abrasion injury of his left lower leg when a pallet he and others were moving slipped causing the injury.  It is clear from his military medical records that the applicant sustained an injury while on active duty orders, but it is not at all clear that this was the cause of his later-diagnosed cutaneous lymphoma.  Evidence points against the presence of a cancerous growth during his active or reserve duty years, and the problem did not render him unfit for performance of his military duties, thereby rendering his request for retroactive disability benefits unfounded.  That a firm diagnosis of cancer was not established for some 8 years after the injury and 4 years after being placed on the Retired Reserve List speaks against a disabling condition for which disability compensation might have been considered.  The uncertain connection between the injury and later development of lymphoma makes the Department of Veterans Affairs (DVA) decision of listing the applicant as a category 7 (lowest priority) patient understandable, as a direct tie between the cancer and the on-duty injury is difficult to make.  The AFBCMR Medical Consultant’s evaluation is at Exhibit C.

HQ AFPC/DPPD recommends the application be denied.  DPPD stated that the mere presence of a physical defect or condition does not automatically qualify an individual for disability retirement or separation.  The physical defect or conditions must render the service member unfit for military duty.  A review of the applicant’s case file does not correlate that a severe or grave medical condition existed during his periods of active service, which would have precluded him from completing his military duties as a Reservist.  DPPD agrees with the medical aspects of this case as explained by the AFBCMR Medical Consultant.  The applicant has not submitted any material or documentation to show he was unfit due to a physical disability during his periods of active duty service.  The HQ AFPC/DPPD evaluation is at Exhibit D.
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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the advisory opinions and indicated that, at the time his name was placed on the Retired Reserve List, his leg was still not healed and the last military doctor he saw indicated his biopsies were returned with a diagnosis of atypical lymphoid infiltrate; and, the recommendation was to have periodic biopsies as a follow-up.  His current medical oncologist describes this as the “wait and watch period” because it is obvious something is wrong and needs to be watched closely.  As it turned out, his lymphoma was not diagnosed until Nov 99, with a change in diagnosis in Jan 00.  Therefore, he feels he is still within a timely filing status.

He disputes the statement that, at age 14, he had an injury to the back of his knee.  The injury at age 14 was to his groin.  He can see when Dr. --‘s statement somewhat runs together, but it is the groin lumps he is referring to, not a knee cyst.  There was nothing wrong with his leg before the injury and he has had nothing but problems since the injury.  His lymphoma is in the exact areas as seen in the diagrams on his military records.

As far as compensation, he is asking for compensation back to the date that he was diagnosed with lymphoma and started treatments.  He went through a very long period of time where he was on three different chemotherapy regemins, multiple biopsies, radiation therapy, etc.  Even though he is now in remission, there is no guarantee how long it will last.

The applicant’s complete submission, with attachments, is at Exhibit F.
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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 probable 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 respective Air Force offices and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  Although the applicant sustained an injury of his left leg while on active duty orders, we note that it was approximately eight years after the injury and four years after being placed on the Retired Reserve List before a firm diagnosis of cancer was established.  While we noted the medical problems suffered by the applicant, no evidence has been submitted to show he was physically unfit to perform his military duties.  No evidence has been provided to reflect that he was not treated fairly and properly by the Air Force and all procedures were followed.  We find no evidence that he was, at the time of his separation, considered medically disqualified for continued military service or unfit to perform the duties of his rank and office, which is, by law, the basis for disability processing.  In view of the foregoing and absent sufficient evidence to the contrary, we find no compelling 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.
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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of probable 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.
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The following members of the Board considered this application in Executive Session on 6 March 2002, under the provisions of AFI 36-2603:

	            Panel Chair
	            Member
	            Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 29 Aug 01, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFBCMR Medical Consultant, dated 6 Nov 01.
   Exhibit D.  Letter, HQ AFPC/DPPD, dated 30 Nov 01.
   Exhibit E.  Letter, SAF/MRBR, dated 7 Dec 01.
   Exhibit F.  Letter from applicant, undated, w/atchs.