RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  02-01912
		INDEX CODE:  108.00
		COUNSEL:  NONE
		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

Consideration be given to correcting her husband’s records to show he was retired because of disability rather than for length of service.

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APPLICANT CONTENDS THAT:

Her husband’s death was service-connected based upon the fact that he had a cancerous lump near one of his eyes as well as having high blood pressure.  Some of the countries that her husband served while on active duty i.e., New Guinea, Biak and Tokyo, may have contributed to his death.  She has been fighting the system for over 20 years for benefits she adamantly believes are due to her.  She has gone the route with Senators, Congressmen, the Veterans Administration (VA), and the Inspector General and was recently advised that in order to receive consideration for benefits, her husband’s reason for retirement must be for medical reasons.  She and her husband spent 23 years defending this great country and feels it has gotten to the point of being almost degrading that the widow of a veteran must fight these many years in an attempt to receive these benefits.  If she had known years before about this, she would have made this request much sooner.  

In support of her application, the applicant provides a copy of her spouse’s death certificate, a copy of the Disabled American Veterans Informal Hearing Memorandum, a copy of her VA application for compensation or pension, and medical documents and correspondence relating to her VA claim tabbed 1-10.  The applicant’s complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

The former member’s service history record indicates that he enlisted in the United States Army on 27 September 1940.  On 11 May 1942, he accepted a commission in the Army of the United States and continued to serve until his retirement.  He was assigned to the Retired Reserve Section and placed on the USAF Reserve Retired list in the Reserve grade of lieutenant colonel effective 1 January 1964.  He was credited with 23 years, 3 months and 4 days of active service for retirement.  He was credited with 23 years, 3 months and 4 days service for basic pay in the grade of major.

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

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AIR FORCE EVALUATION:

The BCMR Medical Consultant recommends the application be denied.  The BCMR Medical Consultant states that the former member’s service medical records reflect a history of basal cell carcinoma of the skin located on his right lower eyelid treated in 1956 and followed by dermatology for five years without evidence of recurrence.  An April 1960 hospital report for hemorrhoid surgery recorded his blood pressure as 154/84, mildly elevated.  His retirement physical examination documented a mildly elevated blood pressure of 142/84.  While on active duty hypertension was not diagnosed or treated.  Following retirement from the Air Force, the former member developed sustained essential hypertension controlled by diet and medication.  The BCMR Medical Consultant states that although hypertension is listed on the death certificate as an underlying cause to death, it was not the cause of his death.  Had the former member not developed cancer, his ultimate death many years later may have been due to causes related to hypertension such as stroke, heart attack, heart failure or kidney failure.  Essential hypertension does not cause cancer.  His basal cell carcinoma of the eyelid in 1956 is unrelated to his subsequent lung cancer.  This skin cancer does not spread to other areas of the body and there is no evidence that the former member had lung cancer at the time of his retirement.  The BCMR Medical Consultant’s evaluation is at Exhibit C.

AFPC/DPPD recommends the application be denied.  DPPD states that the former member’s medical records include a retirement physical examination conducted on 29 July 1963 that shows he was found qualified for retirement by the Air Defense Command Surgeon General.  Members who have an approved length of service retirement, except for individuals previously determined unfit and continued in a permanent limited duty status, must overcome the presumption of fitness during their last year of active duty.  A member’s continued performance of duty once a retirement date is approved creates a rebuttable presumption that his or her medical conditions have not caused an early career termination.  The former member’s records clearly show he was fully capable of performing his military duties right up until the date of his retirement, and that his medical conditions did not curtail his military career.  The AFPC/DPPD evaluation is at Exhibit D.  
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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 4 September 2002, in response to a SAF/MRBR request for information regarding her husband’s service medical records, applicant submitted a copy of the medical care and clinical record from the USAF Hospital covering the dates 14 November 1969 to 12 December 1969.  A copy of this letter is at Exhibit F.

On 4 November 2002, the applicant requested that her case be temporarily withdrawn (See Exhibit G).

On 9 December 2002, applicant requests her case be reopened and states that on her husband’s death certificate it lists, “essential hypertension” as “due to, or as a consequence of” in the cause of death block.  In any event, essential hypertension is an “other significant condition,” which certainly contributed to his death and numerous findings in autopsy show damage related to hypertension.  Applicant’s letter is at Exhibit H.

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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 took notice of the applicant’s complete submission in judging the merits of the case and do not find it supports a determination that the former member’s record be corrected to show that he was retired because of disability rather than for length of service.  Based on the evidence of record, it appears that the former member’s cancerous lump located on his right lower eyelid was treated while on active duty without evidence of recurrence and, according to the Medical Consultant, is unrelated to his subsequent lung cancer.  Additionally, although hypertension is listed on the death certificate and the former member’s retirement physical examination documents a mildly elevated blood pressure, there is no evidence indicating hypertension was diagnosed or treated while on active duty.  More importantly, in order for the former member to qualify for disability retirement or separation, it was necessary that a finding of unfitness be reached at the time of his retirement.  Even if it could be determined that the medical conditions cited by the applicant were incurred while the former member was serving on active duty, this, alone, would not establish an entitlement to disability separation or retirement.  Neither does the record reveal, nor has the applicant provided any evidence that would indicate that the former member was unable to perform his duties because of physical disability at the time of his release from active duty.  Accordingly, in view of the above and in the absence of evidence to the contrary, we agree with the opinion and recommendation of the BCMR Medical Consultant and adopt his rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  Therefore, we find no compelling basis to recommend granting the relief sought in this application.
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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 AFBCMR Docket Number 02-01912 in Executive Session on 16 April 2003, under the provisions of AFI 36‑2603:

The following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 4 June 2002 w/ atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, BCMR Medical Consultant, dated 
                 25 September 2002.
     Exhibit D.  Letter, AFPC/DPPD, dated 7 October 2002.
     Exhibit E.  Letter, SAF/MRBR, dated 11 October 20021.
     Exhibit F.  Letter, Applicant, dated 4 September 2002.
     Exhibit G.  Letter, Applicant, dated 4 November 2002.
     Exhibit H.  Letter, Applicant, dated 9 December 2002.

                                  Panel Chair