RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

 IN THE MATTER OF:	DOCKET NUMBER: BC 2002-00313

	 	COUNSEL:  NONE

	 	HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

His records be corrected to show that on 31 January 1960, he was retired by reason of physical disability, rated at 100%, with retroactive pay and benefits.

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THE APPLICANT CONTENDS THAT:

His exposure to ionizing radiation during atmospheric nuclear bomb testing has resulted in his numerous health problems.  

The applicant states that on 5 September 1955, he was hurt in Judo and should never have been made an instructor, knowing that it would be double work.  He was diagnosed with Spondylolisthesis, permanently excused from Judo, and returned to flying status.  While flying combat in a B-29, he fell out of the forward bomb bay and badly sprained both of his ankles.  In 1956 and 1957, he was a B-36 crewmember and performing duties that included flying through nuclear mushroom clouds.  During this period several officers and airmen were not physically able to fly but no one was excused because there was a war that could start at any hour and the plane could not leave without them.  As a result of his exposure, he has a sensory loss along the outer surface of his right foot and lower leg.

In support of the appeal, the applicant submits various newspaper articles, extracts from his DVA records, and a statement from a fellow crewmember stating that he recalls flying several missions over and in the mushroom clouds over the atomic test site in Nevada.

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

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STATEMENT OF FACTS:

On 2 May 1950, the applicant enlisted in the Regular Air Force for a period of four years.  He was progressively promoted to the grade of staff sergeant.

He was assigned to the XXth Bombardment Squadron, XXth Bombardment Wing, Carswell AFB, Texas, as a B-36 Airborne Radio and Electronic Countermeasures Operator Technician, from 10 February 1954 to 6 December 1957.

From 18 February to 10 June 1955 and 28 May to 22 October 1957, atmospheric nuclear tests were performed at the Nevada test site.

On 7 March 1958, a Medical Evaluation Board (MEB) convened to determine whether the applicant should be continued on active duty because of chronic low back pain.  Based on the diagnoses of Spondylolisthesis and anxiety reaction, they determined he was physically unfit for active military service and referred him to a Physical Evaluation Board (PEB).

On 1 May and 25 July 1958, a PEB convened and based on the diagnosis of Spondylolisthesis, VASRD 5299-5295-5294, rated at 20%, and anxiety reaction, VASRD 9105-9101, rated at 10%, for a combined rating of 28%, recommended he be retained on the Temporary Disability Retired List (TDRL) with a 30% rating.

He underwent TDRL reevaluation on 30 November 1959, and based on the diagnoses of Spondylolisthesis, VASRD 5299-5295, rated at 20%, and anxiety reaction, VASRD 9105-9101, rated at 0%, recommended he be removed from the TDRL and disability discharged with severance pay (20%).  The applicant and the Physical Review Council concurred with the PEB recommendation.

On 31 January 1960, he was removed from the TDRL and honorably discharged with severance pay (20%) ($5280.00).  He completed 10 years, 10 months, and 26 days of active service.

In a letter, dated 30 September 1998, the Defense Special Weapons Agency indicated that while the applicant was airborne at the same time as nuclear testing on two occasions, his aircraft was not listed as participating in the atmospheric tests and no dosimetry records were found to indicate that he was exposed to radiation.

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AIR FORCE EVALUATIONS:

The BCMR Medical Consultant is of the opinion that no change in the records is warranted, and states, in part, the following:

	a.	Since his discharge, the Department of Veterans Affairs (DVA) has compensated the applicant for low back pain at the same disability rating level that the Air Force applied.

	b.	While he contends his exposure to ionizing radiation during atmospheric nuclear testing at the Nevada test site resulted in all of his medical problems, official Air Force records cannot confirm whether and to what degree the applicant was exposed to ionizing radiation.  However, a 2002 DVA evaluation through the Ionizing Radiation Registry (IRR) Program concluded that his medical problems are not related to prior ionizing radiation exposure.

	c.	He has not developed any disease the DVA has identified as potentially related to radiation exposure.

	d.	Peripheral neuropathy, reflex sympathetic dystrophy and atherosclerotic coronary artery disease are not recognized effects of ionizing radiation exposure.

	e.	There is no evidence to support a higher disability rating of the time of his discharge.

	f.	The action and disposition of his case were proper and equitable reflecting compliance with Air Force directives that implement the law.

The BCMR Medical Consultant evaluation is at Exhibit C.

AFPC/DPPD recommends the application be denied and states that they are unaware of any reasons why his records should be corrected to show an increase in his disability rating which would qualify him for a disability retirement.  The fact that the DVA rated his back pain for such an extensive period of time with the same disability percentage as the PEB’s assessment, leads them to believe the evaluation was accurate at the time of the MEB.

The AFPC/DPPD evaluation is at Exhibit E.

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APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS:

The applicant states that during the nuclear testing he was ordered to fly through the nuclear mushroom cloud to determine what effect it would have on humans and aircraft.  Upon landing, he had nausea and vomiting which eventually subsided and he was able to go several years before he began to have severe neuropathy secondary to radiation damage.  He repeatedly told the flight surgeons that he had a bad heart; however, they would not ground him until over two years later and his physical condition was the same.

In cases such as his, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the Secretary shall give the benefit of the doubt to the claimant.

His medical records document that he had a 99% blockage in his artery that had to be there for at least the last forty years, which would date back to his B-36 days when he was with his Lead Crew Eleven, XXth Bombardment Squadron, XXth Bombardment Wing, at Carswell AFB, Texas.  

He recently underwent a myocardial scan and unknown to him at the time, his body was injected with a radioactive dye.  As a result, he had a reaction.  The doctors questioned him as to whether he had ever been exposed to ionizing radiation in the past, to which he replied yes.  Based on this, it is obvious that his body is completely saturated with ionizing radiation.

In further support of the appeal, the applicant submits extracts from his DVA records.

The applicant’s complete responses, with attachments, are at Exhibits D, G, H, I, K and L.

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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.  After thoroughly review the evidence of record and noting the applicant’s contentions, we are not persuaded that relief should be granted.  The applicant contends that exposure to ionizing radiation during atmospheric nuclear bomb testing has resulted in his numerous health problems; however, he provides no evidence to indicate that his medical problems are related to his exposure.  While it does appear that he was exposed to ionizing radiation during atmospheric nuclear bomb testing, we find no causal linkage to his spondylolisthesis and anxiety reaction.  Furthermore, a 2002 DVA evaluation through the Ionizing Radiation Registry (IRR) Program concluded, among other things, that his medical problems were not related to prior ionizing radiation exposure and that he had not developed any disease the DVA had identified as potentially related to radiation exposure.  The personal sacrifice the applicant endured for his country is noted and our decision in no way diminishes the high regard we have for his service; however, he has failed to sustain his burden that he has suffered either an error or an injustice.  Hence, we find no compelling basis to recommend granting the relief sought.

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.

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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 Docket Number BC-2002-00313 in Executive Session on 10 April 2003, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 19 Jan 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, BCMR Medical Consultant, dated 26 Nov 02.
    Exhibit D.  Letter, Applicant, dated 5 Jan 03.
    Exhibit E.  Letter, AFPC/DPPD, dated 17 Jan 03.
    Exhibit F.  Letter, SAF/MRBR, dated 24 Jan 03.
    Exhibit G.  Letter, Applicant, undated, w/atchs.
    Exhibit H.  Letter, Applicant, dated 31 Jan 03, w/atchs.
    Exhibit I.  Letter, Applicant, dated 20 Feb 03.
    Exhibit J.  Letter, AFBCMR, dated 5 Mar 03.
    Exhibit K.  Letter, Applicant, dated 5 Mar 03, w/atchs.
    Exhibit L.  Letter, Applicant, dated 31 Mar 03, w/atch.