RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  01-02618
		INDEX CODE:  108.01
		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His Honorary Retired Reserve status be changed to a disability retirement and his records be corrected to show he was awarded the Purple Heart Medal.  

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APPLICANT CONTENDS THAT:

His cancer was deemed to be service-connected on 24 August 1999, backdated to October 1995 when he was a member in good standing at Homestead Air Reserve Base.  He should be upgraded to full retirement and awarded the Purple Heart.  His evidence includes a recent carcinogen study of the Occupational Safety and Health Administration (OSHA) and his allegations of mistakes in safety procedures that were either not enforced or followed and which were required by law at the time of his exposure.  

In support of his request, applicant provides documents associated with his medical disqualification for worldwide duty, his Department of Veterans Administration Rating Decision and his Honorary Retired Reserve Order. 

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

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STATEMENT OF FACTS:

Effective 2 April 1996, applicant was assigned to the Honorary Retired Reserve Section because of physical disqualification for worldwide duty.  His assignment to the Honorary Retired Reserve Section was in the grade of staff sergeant with a date of rank of 1 March 1995.  He was credited with 11 years, 4 months and 21 days of satisfactory federal service.  Records indicate the appropriate Air Force Reserve Surgeon certified that the applicant was physically disqualified for worldwide duty and therefore, that he did not meet the requirements for retention based on a diagnosis of small bowel cancer.  A physical disqualification review board later approved this action.

The relevant facts, extracted from the available records, are contained in the letters prepared by the appropriate offices of the Air Force at Exhibits D and E.

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AIR FORCE EVALUATION:

The BCMR Medical Consultant recommends the application be denied.  The Medical Consultant states that there is no evidence supporting a direct link between hydrazine exposure and development of cancer in human beings although some cancers in laboratory animals have been observed from this link.   The Medical Consultant states that he learned from the medical records that the applicant was seen for a profound anemia and weight loss in August 1994, the workup that eventually revealed the bowel cancer.  From this assessment, the Medical Consultant  states that it would appear that the cancer had started more than 6 months before the hydrazine incident, making the DVA decision somewhat suspect.  The BCMR Medical Consultant’s evaluation is at Exhibit C.

AFPC/DPPD recommends the application be denied.  DPPD states that the applicant’s claim that he developed cancer from the accidental hydrazine spillage incident appears to be speculative on his part.  DPPD states that the DVA originally rated the applicant at 100 percent on 6 October 1995, and the rating was later changed to zero (0) percent effective 1 November 1997.  DPPD states that it appears that the applicant’s request for a disability retirement is primarily supported on his disability rating from the DVA.  DPPD further states that under military disability laws and policy, USAF disability boards can only rate unfitting conditions based upon the individual’s medical status at the time of his or her evaluation; in essence a snapshot of their condition at that time.  The DVA, however, is chartered to provide continual medical care for veterans once they leave active duty, states DPPD, and the fact that the DVA awarded him a disability rating of 100 percent and later reduced it to zero percent does not entitle him to a military retirement or discharge.  The DPPD evaluation is at Exhibit D.

ARPC/DPP recommends the application be denied.  DPP states that on 28 March 1996, the applicant requested an honorary retirement in lieu of administrative discharge for physical disqualification.  DPP states that as of 1 April 1996, the applicant had completed 11 years, 11 months, and 21 days of satisfactory federal service.  DPP further states that in order to be transferred to the Retired Reserve, awaiting pay at age 60, a member must complete a minimum of 20 years of satisfactory federal service; therefore, the applicant is not eligible for transfer to the Retired Reserve to await pay at age 60.  The ARPC/DPP evaluation, with attachments, is at Exhibit E.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant responds that based on the 8th carcinogen report the possibility of a link between hydrazine and the development of cancer in human beings changed from a level of 2A to 2B.  Applicant states that this change makes the language less ambiguous in interpretation that hydrazine has caused Adeno Carcinoma in laboratory animals and was also determined by the rating board of the DVA; thus, nullifying the BCMR Medical Consultant’s evaluation.   In closing, the applicant states he has proved that malice and libel does exist.

Applicant’s letter, with attachments, is at Exhibit G.

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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 error or injustice.  We are not persuaded by the evidence presented that the applicant’s transfer to the Honorary Retired Reserve by reason of physical disqualification for worldwide duty was improper or contrary to the provisions of the governing regulations, which implement the law.  The applicant points to the service-connection determination and the disability assessment and rating he received from the Department of Veterans Affairs (DVA) and the OSHA carcinogen report to support his claim.  The DVA originally rated his condition at 100 percent disabling in October 1995 then later decreased the compensable rating to 0 percent in November 1997.  We note that, by law, the DVA is a separate Federal agency with a different mission governed by different standards and its decisions are not binding on this Board.  We believe that the determination by the DVA is insufficient to overcome the original finding by the Air Force.  The DVA finding that the applicant’s condition was incurred during or aggravated by his service appears to be contravened by the available medical evidence and sound medical principles, as noted by the Board’s Medical Consultant.  Not only has the applicant failed to provide compelling evidence that the hydrazine spill actually caused his cancer, but there is compelling medical evidence that his cancer predated the hydrazine spill.  There is no evidence that the applicant’s possible exposure to the hydrazine spill is qualifying for the Purple Heart.  The applicant’s request 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 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 AFBCMR Docket Number 01-02618 in Executive Session on 29 May 02, under the provisions of AFI 36-2603:

Panel Chair
Member
Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 7 Aug 01, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, BCMR Medical Consultant, dated 26 Feb 02.
    Exhibit D.  Letter, AFPC/DPPD, dated 2 Apr 02.
    Exhibit E.  Letter, ARPC/DPP, dated 5 Feb 02 w/atchs.
    Exhibit F.  Letter, SAF/MRBR, dated 12 Apr 02.
    Exhibit G.  Letter, Applicant, dated 20 Apr 02 w/atchs.