RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBERS:  BC-2002-03929
		INDEX CODE 108.02 110.02 102.08
	 	COUNSEL:  None

	 	HEARING DESIRED:  No

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APPLICANT REQUESTS THAT:

His four years as a Uniformed Services University of the Health Care Services (USUHS) student be applied to his total active duty service of 16 years, 4 months and 1 day and his 2002 resignation for completion of required active service be changed to a medical retirement.

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APPLICANT CONTENDS THAT:

He had heart palpitations and other medical problems while on active duty and should have been presented to a Medical Evaluation Board (MEB). His separation “physical” did not include an examination or discussion regarding his list of medical problems. Using the Veterans Affairs (VA) rating schedule, these problems show their seriousness. He had heart palpations again shortly after separating. He has stomach problems and severe sleep apnea. His USUHS time should be creditable towards retirement by reason of physical disability incurred while on active duty. With more than 20 years of active duty, his status would be changed from separated to retired with all benefits and entitlements.

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

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STATEMENT OF FACTS:

Despite requests by SAF/MRBR, the applicant’s service medical records are unavailable, other than the documents provided at Exhibits A and B.

Title 10, USC, Section 8911, requires a member to serve at least 20 years of active federal military service to be eligible for years of service retirement (see Exhibit F).

According to Title 10, USC, Section 2126, participation in the USUHS program is not creditable in determining eligibility for retirement. However, per Title 10, USC, Section 2114, a graduate of USUHS who serves on active duty for 20 years will be eligible for the retirement annuity with a pay multiplier of an additional four years. 

In the fall of 1992, Congress enacted and the Secretary of Defense (SecDef) approved legislation providing for retirement from the active military with as few as 15 years of creditable total active service under the provisions of the Temporary Early Retirement Authority (TERA). This temporary legislation expired on 31 Dec 01. TERA was a force-shaping drawdown tool, not an entitlement, and permitted each Service to target segments of eligible population where losses would most likely occur. Not all members meeting minimum eligibility criteria were offered TERA. The Military Personnel Flight Memorandum (MPFM) dated 6 Dec 99 implemented the FY00-FY01 Phase III, Officer Voluntary Early Retirement Program, established the eligibility criteria and identified TERA eligibles by grade and Air Force Specialty Code (AFSC). 

The applicant began his first year in USUHS on 4 Aug 82 and entered active duty on 17 May 86 with a Regular commission after graduating with his medical degree. For his education, he incurred an active duty service commitment (ADSC) until 16 May 02. The applicant completed his orthopedic surgery residency at Wilford Hall Medical Center on 30 Jun 95, and ultimately attained the rank of lieutenant colonel. He served as a general medical officer, an emergency services physician, and lastly as the orthopedic surgical chief at Keesler AFB, MS. His Officer Performance Reports (OPRs) reflect excellent performance.

On 4 Apr 02, the applicant voluntarily applied for separation with an effective date of 17 Sep 02. His voluntary application was approved on 15 Jul 02. At the time, the applicant had over 15 years of active service, but he was not eligible to apply for retirement under TERA because his AFSC (45BX) was excluded from consideration. 

On 5 Aug 02, the applicant elected to take a medical examination in conjunction with his scheduled separation. Review of his medical records determined that a physical examination for separation was required and an appointment was set for around 12 Aug 02 (date illegible). On an 11 Aug 02 Report of Medical Assessment, the applicant indicated his overall health was worse and he had been evaluated for “Athletic Heart Syndrome” and peripheral edema. He attached a two-page list of medical complaints, conditions and injuries. However, he also indicated on the assessment that he did not have any condition which currently limited his ability to work in his primary military specialty or required geographic or assignment limitations. The physician noted that the applicant’s new concerns/complaints, reviewed the records, and determined no further medical evaluations were needed. 

The applicant resigned and was honorably separated in the grade of lieutenant colonel for completion of required active service on 17 Sep 02 with 16 years, 4 months and 1 day of active service.

The remaining details regarding the medical issues are discussed by the applicant in his submission at Exhibit A and by the AFBCMR Medical Consultant in his evaluation at Exhibit C.

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AIR FORCE EVALUATION:

The AFBCMR Medical Consultant notes that, according to the applicant, a second cardiologist in Jan 02 did not agree with a previous cardiologist’s Oct 00 opinion of athletic heart syndrome and did not believe the applicant required an MEB. Echocardiogram (EKG) is reported by the applicant to have shown “borderline left ventricular hypertrophy, and some leaky heart valves.” After separation, the applicant underwent further medical testing and provided copies of an echocardiogram, a stress test, a sleep study and results of an esophagogastroduodenoscopy (EGD). The EKG findings were mild and do not represent findings that would cause any functional impairment. The mitral valve abnormality warrants monitoring. The stress test indicated an excellent level of fitness, a low risk for significant coronary heart disease with normal cardiac function, excellent exercise capacity and a benign prognosis for the extra beats he experiences. The sleep studies diagnosing severe obstructive sleep apnea showed excellent response to continuous positive airway pressure (CPAP). The EGD found a small hiatal hernia but no evidence of inflammatory change, mass or a precursor to esophageal cancer.  The applicant voluntarily separated following completion of his period of obligated service. There is no evidence that the various injuries and medical conditions listed by the applicant interfered with his performance of duty as an orthopedic surgeon. The mere presence of a physical defect or condition does not qualify a member for disability retirement or discharge. Further, the inability to perform specialized duties (i.e., surgery when the physician can still be used as a physician or medical officer in another capacity) or the fact that the member has a condition which is cause for referral to a Physical Evaluation Board (PEB) is not justification for a finding of unfitness. None of the conditions listed by the applicant would have been cause for referral to a PEB. There is no evidence the applicant was unable to practice medicine due to a medical condition and no evidence in the personnel file that action to restrict his privileges to practice medicine had been made or was pending at the time of his voluntary separation. Denial is recommended.

A complete copy of the evaluation is at Exhibit C.

HQ AFPC/DPPAOR advises that, in accordance with Title 10, USC, Section 2126, participation in the USUHS program is not creditable in determining eligibility for retirement. However, per Title 10, USC, Section 2114, a graduate of USUHS who serves on active duty for 20 years will be eligible for the retirement annuity with a pay multiplier of an additional four years. The applicant does not meet the eligibility requirement for a retired annuity because he did not complete 20 years of active service prior to discharge. The USAF Physical Disability Division has denied his request.

[Examiner’s Note: Title 10, USC, Section 2126 stipulates, in part, that service credit for USUHS is not creditable in determining eligibility for retirement other than by reason of a physical disability incurred while on active duty as a member of the program.]  A complete copy of the evaluation is at Exhibit D.

HQ AFPC/DPPD asserts that although evidence provided by the applicant shows he was treated for various medical conditions throughout his military career, the preponderance of evidence does not show his career was curtailed or shortened as a result of an unfitting medical condition. His personnel records clearly indicate he was capable of performing his duties as an orthopedic element chief right up until his discharge date. This is documented in his most recent performance report closing 30 Jun 01. An 11 Aug 02 medical assessment also reflects he was cleared for worldwide service/separation with no serious or life-threatening medical conditions at that time. His career ended as a result of his election to be released from active duty, not due to a severe medical condition. DPPD explains the differences between Titles 10 and 30 of the USC. They find no acts of discrimination or injustice during the voluntary discharge process, nor were there any physical disabilities documented serious enough to warrant the initiation of an MEB or to justify a disability retirement. DPPD concurs with the AFBCMR Medical Consultant’s assessment and recommendation to deny.

A complete copy of the evaluation is at Exhibit E.

HQ AFPC/DPPRRP notes the applicant had over 15 years of active service at the time of his discharge but was not eligible to submit an application for retirement under the early retirement program because his AFSC was excluded from consideration. Further, he voluntarily requested release and discharge from the Air Force. There are no provisions of law to grant credit for unserved service, nor does DPPRRP support awarding the applicant credit for four years of USUHS program to permit retirement for length of service (20-year retirement). Additionally, it would be an injustice to other Air Force officers who attended the USUHS program and did not receive creditable service to permit retirement for length of service.

A complete copy of the evaluation, with attachments, is at Exhibit F.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant questions why the four years in USUHS are considered noncredible service when by all appearances he was on active duty.  He believes this is discriminatory. He concedes no limits were placed on his medical practice and he could perform all requirements of orthopedic surgery. However, these requirements are the same for a civilian orthopedic surgeon. He could not deploy with sleep apnea. However, he was never referred to a Physical Evaluation Board (PEB) because his sleep apnea was never diagnosed while on active duty. His discharge physical was a joke. He asked to be evaluated for his heart disability but was erroneously told nothing was wrong. He was ordered by first cardiologist to limit exercise. As a result, he gained weight and failed Air Force standards; however, he was never formally entered into the Weight Management Program (WMP). He separated because he felt he was no longer fit to do the job required of him and was more of a liability to the Air Force. He should have been properly diagnosed and received an MEB. He should now be credited with 20 years of active service.

A complete copy of applicant’s response, with attachments, 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 timely filed.

3.	Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice. After a thorough review of the evidence of record and the applicant’s submission, we are not persuaded that his four years in USUHS should be designated as creditable towards 20 years of active federal service or that he should be given a medical retirement. The applicant may believe Title 10, USC, Section 2126 is unfair. However, we are precluded from contravening statute and, even if this Board had the authority to do so, the applicant has not shown why he should be made a discriminatory exception from the other USUHS officers similarly situated. Shortly before his 16 May 02 ADSC date, the applicant voluntarily applied for separation effective 17 Sep 02. He was not eligible for retirement under TERA because his AFSC was excluded from consideration. As such, the applicant is not eligible for a retirement annuity because he did not complete 20 years of creditable active service prior to his voluntary resignation. As for the medical issue, we agree with the assessments by the AFBCMR Medical Consultant and HQ AFPC/DPPD that, at the time of the applicant’s discharge, he did not have an unfitting condition. His assertion that he was no longer fit and was a “liability” is his own opinion unsupported by the available evidence. The applicant’s career was curtailed with his voluntary election to be released from active duty after completing his ADSC, not because of a severe medical condition that kept him from performing his duties as a doctor. Indeed, this Board is aware of physicians with non-deployable conditions who continue to serve in a medical capacity on active duty. As the applicant has not demonstrated he had an unfitting disability warranting medical retirement, the issue of whether his four years in USUHS could be creditable towards retirement pay is moot. We therefore agree with the rationale expressed that the applicant has not sustained his burden of having suffered either an error or an injustice. In view of the above and absent persuasive evidence to the contrary, we conclude this appeal should be denied.  
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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 21 August 2003 under the provisions of AFI 36-2603:

The following documentary evidence relating to AFBCMR Docket Number BC-2002-03929 was considered:

   Exhibit A. DD Form 149, dated 4 Dec 02, w/atch.
   Exhibit B. Applicant's Master Personnel Records.
   Exhibit C. Letter, AFBCMR Medical Consultant, dated 16 Apr 03.
   Exhibit D. Letter, HQ AFPC/DPPAOR, dated 16 May 03.
   Exhibit E. Letter, HQ AFPC/DPPD, dated 3 Jun 03.
   Exhibit F. Letter, HQ AFPC/DPPRRP, dated 24 Jun 03, w/atchs.
   Exhibit G. Letter, SAF/MRBR, dated 3 Jul 03.
   Exhibit H. Letter, Applicant, dated 13 Jul 03, w/atchs.