RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2002-02680
		INDEX CODE:  108.00
	XXXXXXXXXXXXXXXXXXXX	COUNSEL:  NONE

	XXXXXXXXXXXXXXXXX	HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His retirement for years of service be changed to retirement for physical disability.  

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APPLICANT CONTENDS THAT:

In the last several years of his active military service, medical personnel made grave errors in diagnosing his physical condition and mishandled the administrative process of his case that resulted in disqualifying and sometimes life-threatening ailments being misdiagnosed and not treated.  His submission of new evidence provides conclusive proof that an injustice was perpetrated against him.

In support of his application, he provided a personal statement and copies of military medical records.  The applicant’s complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

On 12 December 1943, the applicant enlisted in the Army Air Corps Reserve in the rank of private (E-1) at the age of 20.  He was discharged on 7 September 1944 to accept a commission in the Army Air Corps as a second lieutenant.  He was appointed a second lieutenant, Reserve of the Air Force on 9 November 1945.  The applicant was honorably released from active duty on 28 November 1945 due to demobilization.  The applicant returned to active duty as an Air Force second lieutenant on 14 January 1948.  He was progressively promoted to the grade of captain effective and with a date of rank of 15 December 1951.  On 6 March 1958, the applicant resigned his Reserve commission and accepted a commission in the Regular Air Force.  He was progressively promoted to the permanent grade of colonel effective and with the date of rank of 1 August 1970.  

On 30 November 1976, the applicant was relieved from active duty and retired under the provisions of AFR 35-7, mandatory retirement for length of service, effective 1 December 1976.  He was credited with 31 years, 6 months and 11 days of active duty service and 33 years, 11 months and 9 days of service for pay.

On 24 October 1979, the AFBCMR considered and denied a request by the applicant to change his retirement for years of service to a disability retirement.  For an accounting of the facts and circumstances surrounding the applicant’s service, and, the Board’s consideration of the appeal, see the Record of Proceedings at Exhibit C.

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AIR FORCE EVALUATION:

The BCMR Medical Consultant is of the opinion that no change in the applicant’s records is warranted.  After summarizing the information in the applicant’s military medical and DVA records the BCMR Medical Consultant states that regulations concerning retirement (AFM 35-7, Paragraph 2-8) stipulate “A fully executed order for retirement, if regular and valid, is final and may not be reopened, revoked, or amended in the absence of fraud, manifest error, mathematical miscalculation, mistake of law, or substantial new evidence.  Any action to cancel the retirement or revoke the order retiring the member is legally ineffective.  The fact that a member retired for reasons other than disability and may also be qualified for disability retirement, does not in any way affect the validity of the non-disability retirement.  Such a retirement cannot be set aside.  The existence of a disability that qualifies a member for disability retirement cannot change the fact that he or she performed the requisite service or attained the eligible age qualifying him or her for non-disability retirement.”  AFM 35-4 Physical Evaluation for Retention, Retirement, and Separation and AFM 160-1 outline a provision for retention of officers beyond their effective date of separation or retirement if they are being processed for disability (i.e. undergoing medical evaluation board and physical evaluation boards), or are in the process of being evaluated and treated for a disabling condition.  Further, retention is directed to continue until the optimum medical benefits of treatment have been realized.  The regulation clearly states that an officer “will not be retained for completion of purely elective surgery or treatment of non-disabling conditions.  Once a member has been medically cleared for retirement, medical clearance will not be withdrawn for medical or surgical treatment, of or any hospitalization associated with those conditions that ordinarily would not be considered disqualifying for military service and warrant disability processing.  Only conditions fully verified through coordination between the military treatment facility, the Major Command, and Medical Standards at AFMPC (now AFPC) as warranted would result in approval of delay.  All others will be retired as scheduled.”  

The BCMR Medical Consultant states that the applicant was medically cleared for retirement on 17 March 1976, and received his retirement orders on 16 April 1976.  At this time, only a condition that clearly and significantly disabled him from performing his administrative job would have been grounds for revoking his retirement orders and processing him through the disability retirement system.  The applicant’s condition did not render him unfit to perform the duties of his administrative position.  It is the BCMR Medical Consultant’s opinion that had the Medical Standards Branch at AFMPC received a request for medical hold for the applicant’s disability processing, it is certain that the request would have been denied and the applicant would have been allowed to retire as scheduled.  By current Air Force Instruction, the applicant would have been presumed fit and allowed to retire for length of service.  Action and disposition in this case are proper and equitable reflecting compliance with Air Force directives that implement the law.  The BCMR Medical Consultant’s evaluation is at Exhibit D.  

AFPC/DPPD recommends denial of the member’s request.  It is DPPD’s opinion that the applicant’s medical records failed to document or justify that an error or injustice occurred at the time of his mandatory retirement for maximum years of service under the provisions of AFM 35-7.  DPPD states a review of the applicant’s service record does not show he was ever referred through the Air Force disability evaluation system (DES).  The decision to process a member through the military DES is determined by a Medical Evaluation Board (MEB) when he or she is determined medically disqualified for military service.  Although the applicant’s records reflect he was treated for various medical conditions throughout his military career, none of these conditions were ever considered serious or grave enough to warrant that an MEB be initiated.  On 17 March 1976, just prior to his mandatory retirement, the applicant received a combination flying/retirement physical, which found him fit for retirement and worldwide service.  The fact that a member has a medical condition does not automatically mean the condition is unfitting for the rigors of military service.  To be unfitting, the medical condition must be such that it by itself precludes the member from fulfilling the purpose for which he or she is employed.  

DPPD states that veterans who acquire service-connected medical conditions while on active duty and who are subsequently discharged or retired are eligible for treatment and compensation by the Department of Veteran Affairs (DVA).  The DVA is chartered to provide continual medical care to veterans once they depart active duty.  Under title 38, USC, the DVA may increase or decrease a member’s medical condition throughout his or her lifespan.  DPPD wholeheartedly agrees with the BCMR Medical Consultant’s evaluation.  The DPPD evaluation is at Exhibit E.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant disagrees with the Air Force evaluations that his ailments did not render him unfit to perform the duties of his administrative position.  The applicant claims he was absent approximately 52% of the time from March 1976 to December 1976 due to his physical decline.  The applicant submits statements from two officers he was assigned with during the March - December 1976 timeframe testifying to the applicant’s medical problems and absence from work.  The applicant also submits a summary of his ailments supported with medical documentation.  The applicant’s rebuttal 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 an error or injustice.  We took notice of the applicant's complete submission in judging the merits of the case and do not find that it supports a determination that the applicant was improperly released from active duty and retired for length of serve in 1976.  In order for a member to be retired by reason of physical disability, by law, it must be established that the member is unfit to perform the duties of his or her office and grade in such a manner as to reasonably fulfill the purpose of their employment on active duty.  Neither does the record reveal nor has the applicant provided any evidence that would lead us to believe that he was physically unfit within the meaning of the governing regulation, which implements the law.  Therefore, we agree with the opinion of the BCMR Medical Consultant that action and disposition in this case were proper and equitable reflecting compliance with Air Force directives that implement the law.  In the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this appeal and affirm the 1979 decision of the Board to deny this application.

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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 in Executive Session on 23 October 2003, under the provisions of AFI 36‑2603:

The following documentary evidence for AFBCMR Docket Number BC-2002-02680 was considered:

	Exhibit A.  DD Form 149, dated 5 Aug 02, with attachments.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, BCMR Medical Consultant, dated 12 Dec 02.
	Exhibit D.  Letter, AFPC/DPPD, dated 24 Jan 03.
	Exhibit E.  Letter, SAF/MRBR, dated 31 Jan 03.
	Exhibit G.  Applicant’s Rebuttal, dated 25 Feb 03.