RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2003-00154

	 	COUNSEL:  NONE

	 	HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

Her discharge be changed to in the line of duty (LOD).

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THE APPLICANT CONTENDS THAT:

The formal LOD determination regarding her injuries incurred on 5 August 2001 should be changed to in the line of duty because she had a pituitary tumor that was hemorrhaging and she could have easily died.

The applicant states that the reason for her discharge is inequitable since she served two and a half years on active duty and her pituitary condition is service-connected.  In addition, her medical records contain a letter from the neuro-surgeon that performed her surgery stating that her condition could not have been known and that her accident did not cause the tumor.

In support of the appeal, the applicant submits a copy of a Department of Veterans Affairs (DVA) rating decision awarding her a combined compensable disability rating of 50%.

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

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STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 12 January 2000, for a period of six years.

She was involved in an automobile accident on 5 August 2001.

She reported to the clinic at Eglin AFB on 9, 14 and 31 August 2001, complaining of a headaches and neck pain.

The commander notified her on 15 August 1991, of his intent to impose nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) for violating Article 92 (i.e., failure to obey an order or regulation).  Specifically, for failing to report back to the local area prior to the expiration of the last day of chargeable leave.  After consulting legal counsel, she waived her right to a trial by court-martial and accepted the nonjudicial punishment.  After considering her written submission, on 17 August 2001, the commander determined that she did commit the alleged offense and imposed nonjudicial punishment consisting of reduction to the grade of airman, and 30 days of extra duty. However, the grade reduction was suspended until 16 February 2002, at which time it would be remitted without further action, unless sooner vacated.  She did not appeal the punishment.

Based on her complaints of massive headaches, she was admitted to the Eglin AFB hospital on 7 September 2001, at which time a Computed Axial Tomography (CAT) scan showed findings consistent with a pituitary hemorrhage.  She was referred for specialty care at the local civilian medical center and a Magnetic Resonance Image (MRI) confirmed a pituitary hemorrhage.  She was transferred to Fort Walton Beach Medical Center and underwent a transphenoidal resection of her pituitary gland.  During her hospitalization, she developed diabetes insipidus and hypopituitarism.

She underwent endocrinology evaluation and based on the diagnoses of pituitary apoplexy with resultant central hypothyroidism and diabetes insipidus, she was referred to a Medical Evaluation Board (MEB) on 12 October 2001.  The MEB concluded she was not fit for continued military service due to her condition and referred her to a Physical Evaluation Board (PEB).

The commander notified her on 29 October 2001, that he was considering whether to vacate the suspension of the grade reduction based on her violation of Article 92.  Specifically, that on 17 October 2001, she failed to report to the training room for verbal counseling, and failed to assist SSgt C--- and SrA F--- by remaining inside a government vehicle.  She consulted legal counsel, and submitted a written presentation to the commander.  After reviewing her written presentation, the commander determined that she did commit the alleged offense and vacated the suspended grade reduction, reducing her to the grade of airman, with a date of rank (DOR) of 17 August 2001.

A Line of Duty (LOD) investigation was completed on 11 January 2002, determining that her injuries, i.e., headaches, pituitary hemorrhage, sustained as a result of the 5 August 2001 automobile accident were not in line of duty - not due to own misconduct.  The investigating officer further concluded that at the time of the accident, the applicant was absent without authority (AWOL); that the accident was the cause of her injuries; and that the accident was not due to gross negligence or intentional misconduct on her part.  The reviewing authority approved the findings on 30 January 2002.

An Informal Physical Evaluation Board (IPEB) convened on 11 February 2002, and based on the diagnoses of pituitary apoplexy with sequelae, status post transphenoidal resection of pituitary: diabetes insipidus and hypothyroidism, found her unfit to perform her duties and recommended she be discharged.  The IPEB noted that since her medical condition was a result of an accident (injury) that was determined to be not in the line of duty, her medical condition was not compensable under the provisions of military disability law/policy.  She did not agree with the findings and recommendations of the IPEB and requested a Formal Physical Evaluation Board (FPEB).

An FPEB convened on 12 March 2002, and based on the diagnoses of pituitary apoplexy with sequelae, status post transphenoidal resection of pituitary and diabetes insipidus, VASRD 7909, recommended she be discharged with severance pay, with a 0% rating.  The FPEB also found her hypothyroidism unfitting but not compensable or ratable.  The FPEB noted that there was enough evidence (i.e., behavioral changes, large size of tumor, and small amount of bleed into pituitary) that her medical condition was sufficiently separate from the accident, and her case was referred to the Secretary of the Air Force Personnel Council (SAFPC).

On 9 May 2002, the SAFPC confirmed the findings of the LOD determination that she was unfit for military service by reason of injuries sustained during a period of unauthorized absence from duty, and directed that she be discharged.  The SAFPC considered the comments of the FPEB suggesting that her medical condition may have been unrelated to her automobile accident, but noted that the preponderance of the evidence suggested that her pituitary hemorrhage, which required surgical removal, was the direct result of a closed head trauma incident from a high-speed motor vehicle accident that occurred during a period of unauthorized absence.  The SAFPC found no compelling arguments that would support either the reversal of the LOD determination or the disassociation of her medical condition with her automobile accident.

On 24 June 2002, she was honorably discharged under the provisions of AFI 36-3212 (Disability, Not in Line of Duty).  She completed 2 years, 5 months, and 13 days of active service.

On 26 November 2002, the DVA awarded her a combined compensable disability rating of 50% (headaches - 30%; diabetes insipidus, residuals of pituitary resection - 20%; hypothyroidism, also claimed as hypopituitarism - 10%; maxillary sinusitis - 0%; hemorrhoids - 0%; cervical spine strain - 0%; and right ear keloid with scarring - 0%), retroactive to 25 June 2002.

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AIR FORCE EVALUATIONS:

AFPC/JA recommends the application be denied and states, in part, that for compensability purposes, a LOD determination is required by statute.  An injury, disease, or death is presumed to have been in the line of duty unless a preponderance of the evidence demonstrates that the member was AWOL or that the disability or death was proximately caused by the member’s own misconduct.  Even if the applicant’s tumor existed prior to the accident, there is a preponderance of evidence that supports the finding that the accident caused the hemorrhaging of the tumor.  She has provided no evidence that had the accident not occurred her tumor would have hemorrhaged on its own, causing her development of diabetes, insipidus, and hyperthyroidism.  To the contrary, her medical records do not indicate that she was suffering from any of the headaches she experienced after the accident.  From all indications, but for the accident that caused the tumor to hemorrhage, she could have gone on for years without even knowing of the tumor.  Furthermore, an injury incurred during a period of unauthorized absence, is appropriately determined to have been incurred not in the line of duty, not due to own misconduct.  In her case, although the LOD investigating officer determined the accident caused her tumor to hemorrhage, she was AWOL at the time of the accident.  She also argues that based on the DVA determination that she had a service-connected disability, the Air Force should have disability retired her; however, the fact the DVA will compensate her under its disability program does not effect the Air Force’s determination.

The AFPC/JA evaluation is at Exhibit C.

The BCMR Medical Consultant concurs with the findings and recommendation of the FPEB, finding her unfit due to a condition incurred in the line of duty, with a 0% rating.  The BCMR Medical Consultant states, in part, that the preponderance of the evidence does not support that the headache immediately following the accident was due to pituitary apoplexy, but rather the pituitary bleeding that led to surgery and the post-operative sequelae of diabetes insipidus and hypothyroidism.  It cannot be concluded that the acute 7 September 2001 headache one month after the accident was a direct result of the accident.  It is more likely that the pituitary hemorrhage was a spontaneously occurring event related solely to her pituitary tumor.  Her hypothyroidism and headaches were not unfitting.  In addition, while her diabetes insipidus rendered her unfit, based on the medical documentation and her FPEB testimony, it did not support the minimum rating of 20% in the VASRD.

The BCMR Medical Consultant’s evaluation is at Exhibit D.

AFPC/DPPD recommends the application be denied and states, in part, that no errors occurred during her processing through the Air Force disability evaluation system.  The formal LOD investigation revealed that it was the second time she was out of her authorized area when her leave ended.  She had been previously counseled on the leave policy.  Only the Secretary of the Air Force (SAF) or an SAF designated representative has the authority to reverse LOD determinations made under AFI 36-2910.  The PEB may not recommend a change to an LOD determination unless there is new and compelling evidence not considered during the disability process.  AFPC/DPPD agrees with the LOD determination and believe the final disposition of her disability case to be fair and in accordance with military laws and policy in effect at the time of her discharge.

The AFPC/DPPD evaluation is at Exhibit E.

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APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS:

Complete copies of the Air Force evaluations were forwarded to the applicant on 18 July 2003 for review and response within 30 days.  However, as of this date, this office has received no response.

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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.  Sufficient relevant evidence has been presented to demonstrate the existence of error or injustice to warrant correcting the applicant’s records to reflect that she was discharged under the provisions of AFI 36-3212, Physical Disability, with entitlement to severance pay.  In this respect, we note that the BCMR Medical Consultant has indicated that it cannot be concluded that the applicant’s acute headache one month after her automobile accident was a direct result of the accident, and that it is more likely that the pituitary hemorrhage was a spontaneously occurring event related solely to her pituitary tumor.  In view of this, we concur with the findings and recommendation of the FPEB, finding her unfit due to a condition incurred in the line of duty, with a 0% rating.    The applicant contends that based on the DVA determination that she had a service-connected disability, she should have been disability retired from the Air Force; however, the fact the DVA will compensate her under its disability program does not effect the Air Force’s determination.  Although the Air Force is required to rate disabilities in accordance with the DVA Schedule for Rating Disabilities (VASRD), the DVA operates under a totally separate system with a different statutory basis.  The DVA rates for any and all service connected conditions; to the degree they interfere with future employability, without consideration of fitness.  Whereas the Air Force rates a member's disability at the time of separation.  In the applicant's case, the Air Force considered her hypothyroidism, and headaches and did not find them unfitting.  While her diabetes insipidus rendered her unfit, the minimum rating of 20% in the VASRD was not support.  Therefore, we recommend the applicant’s records be corrected to the extent indicated below.

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THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that on 24 June 2002, she was honorably discharged under the provisions of AFI 36-3212, Physical Disability, with entitlement to severance pay.

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The following members of the Board considered Docket Number BC-2003-00154 in Executive Session on 23 September 2003, under the provisions of AFI 36-2603:

All members voted to correct the records, as recommended.  The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 2 Feb 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/JA, dated 28 Mar 03.
    Exhibit D.  Letter, BCMR Medical Consultant, dated 3 Jun 03.
    Exhibit E.  Letter, AFPC/DPPD, dated 10 Jul 03.
    Exhibit F.  Letter, SAF/MRBR, dated 18 Jul 03.