RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-02885
		INDEX CODE:  108.03

		COUNSEL:  NONE

		HEARING DESIRED: NO

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APPLICANT REQUESTS THAT:

His record be changed to show that his disabilities encountered after his activation were judged to be service connected and any entitlement to incapacitation pay and health benefits be reinstated. 

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APPLICANT CONTENDS THAT:

Prior to his activation (in response to 9/11 attacks), he was living a happy and healthy lifestyle.  He was working three jobs at one time, he never missed a day of work due to illness, or hospitalization, was very active in a variety of sports, and was at a point where he was extremely happy with all aspects of his personal and professional life.

His life went downhill after he was activated in September 2001.  In November 2001, he was hospitalized for the first time in his life, during Thanksgiving, for a migraine headache attack.  He states he had never been hospitalized for migraine headaches prior to this episode.  He was prescribed medication to control the migraines and their frequency.  He states he had never been on medication for migraines prior to his activation.  He currently goes to bed and wakes up with some sort of headache, the pain of which dictates what he will or will not be able to accomplish during the day.  He states he suffers two to three migraines a month that totally incapacitate him to the point he is forced to rest in a dark room until it passes.  

Shortly after leaving the hospital, he experienced problems with his breathing and was subsequently diagnosed by a pulmonologist with asthma.  He states he had never been unable to complete a task or participate in any sporting event because of asthma.  

He contends the following additional conditions manifested themselves just after activation.  None of them existed prior to his activation and all of them require expensive medicines:

	1. Obsessive/Compulsive Disorder (OCD)

	2. Enlarged right ventricle of the heart.

	3. An inability to sleep.

After activation, he was forced to work 12 to 16 hour shifts for a month with no time off.  Many times these shifts were performed alone and outside where the weather was cold, windy, rainy, and very unhealthy.  These conditions led to him experiencing an inordinate amount of stress due to unusual circumstances.  He now deals with daily health issues that prohibit him from working and functioning like a normal, healthy 24-year-old male.  He states if the Air Force was not the cause of his health problems, it was at least a contributing factor in causing the permanent aggravation of these conditions.  Either way, his disabilities should be considered “service connected” rather than existing prior to service (EPTS).  He has lost his fulltime job and will soon lose any health insurance and considers himself unemployable.  

He received the results of the PEB on 17 July 2003 and was given until 31 July 2003 to rebut the findings.  He developed a response and faxed it to the PEB.  Two weeks later he found out the PEB had never received his rebuttal.  Therefore, the PEB did not see his rebuttal and considered his case closed.  He has included the Fax confirmation of receipt from the PEB office and also has a phone bill that shows he faxed the documents to Texas.

He believes the PEB results to be erroneous and feels he was denied due process in that he has not been allowed to rebut or appeal the decision of the PEB.  He contends that no one at the PEB office can explain what could have happened to his rebuttal paperwork.  He contends, as a result of the nonreceipt of his rebuttal, that he has been deprived of incapacitation pay and medical benefits for the duration of his case.  When the PEB closed his case, as a result of not receiving a rebuttal by the deadline, his incapacitation pay was stopped and he was no longer afforded medical care.  Consequently, he is unemployed and considered unemployable, his debt is mounting and, he cannot afford to buy the five expensive medications he needs for treatment.  

He contends the Disability Evaluation System (DES) is in need of an overhaul or that it was poorly administered in his case to his financial and physical detriment.  

In support of his appeal, the applicant has provided two personal statements, copies of several statements of support from civilian doctors, a copy of a memorandum from the PEB to the applicant soliciting either his acceptance of or a rebuttal to their findings, copies of fax paperwork, and a copy of his rebuttal to the PEB.

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

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STATEMENT OF FACTS:

Applicant joined the Air National Guard (ANG) on 8 December 1996 and served as a Security Forces Specialist.  He attained the rank of Senior Airman (SRA/E-4) with a date of rank of 1 March 1999.  He was activated in September 2001 in response to the 11 September 2001 terrorist attacks against the United States.  On 17 July 2003, he met a FPEB to determine his fitness for continued duty.  He was found unfit for continued duty and was recommended for discharge due to a condition that existed prior to service (EPTS) under other than United States Code (U.S.C.) Title 10, Chapter 61.  His case was finalized on 5 August 2003 following his failure to meet an established suspense date for submission of his rebuttal following the completion of his formal PEB.  He was honorably discharged from the ANG for physical disqualification on 5 September 2003 after serving for 6 years, 8 months, and 28 days.  

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AIR FORCE EVALUATION:

At the request of the AFBCMR and as an exception to policy, his case was forwarded to Secretary of the Air Force Personnel Council (SAFPC) for additional review on 9 January 2004.  SAFPC recommended the applicant be discharged under other than Chapter 61, Title 10, U.S.C. and confirmed the finding “not in line of duty”; existed prior to service without service aggravation.  SAFPC notes that upon review of the testimony presented before the FPEB, the remarks of the IPEB, the service medical record, and the narrative summary of the Medical Evaluation Board (MEB), that they decided to concur with the previous finding.  SAFPC also considered application of service connection to the member’s medical condition, as he desires, noting the exacerbation of his symptoms within a period of active military service in which he was entitled to receive basic pay.  

SAFPC states the applicant’s predisposition for manifesting OCD and somatoform symptoms, within the first week of his “activation,” were the result of a preexisting underlying medical disorder that predated his transition to “active” military status.  SAFPC acknowledges the member’s OCD symptoms may have become more intense following his “activation”, such as his use of padlocks to guarantee his safety while at home, the specific arrangement of his clothing within a drawer, and the ritualistic cleaning of his apartment (“four or five times a day”).  However, SAFPC is of the opinion that his demonstrated pattern of behavior following the events of “9/11” is representative of a spectrum of symptoms resulting from his underlying preexisting medical disorder and does not represent permanent service-aggravation.  Further, his demonstrated somatoform response (chest pain, respiratory difficulties, headaches, fatigue, anxiety) to stressors put upon him by the events of “9/11” less than one week after being activated, also bear a close causal relationship with his underlying chronic OCD.  Therefore, the decision to discharge the member under other than Chapter 61, Title 10, U.S.C.: “Signs or symptoms of chronic disease identified so soon after the day of entry into Military Service (usually 180 days) indicates that the disease could not have originated in that short a period and will be accepted as proof that the disease manifested prior to entrance into active Military Service.”  DPPD highly recommends the AFBCMR support SAFPC’s decision and subsequently uphold the previous discharge action.

SAFPC’s complete evaluation is at Exhibit C.

AFPC/DPPD recommends denial and defers to the SAFPC advisory for it’s rationale for denial of relief.  

DPPD’s evaluation, with attachments, is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant states the advisory’s contention that his case was finalized as he failed to meet an established suspense date for submission of his rebuttal is incorrect.  He points to his submission to the AFBCMR wherein he includes a phone bill along with a fax confirmation sheet that proves the fax was sent and received.  He contends the advisory is detrimental to his case in this regard as it shows he was delinquent in taking care of his paperwork.  

He states the comment in the advisory that indicates, “…within the first week of his activation…were the result of a preexisting underlying medical disorder that predated his transition to ‘active’ military service.”  He states it only looks like it happened that way, as the fact is that his activation orders started on 3 October 2001.  Further, he worked 14-16 hour days, seven days a week for three weeks before getting a day off.  He contends he was not suddenly sick in a week.  He states it was the accumulation of the 9/11 attack and continually being worked the way he was.  He addresses the advisory’s statement that should an injury or a sickness occur within the first 180 days of being on active duty that it is considered definitely EPTS.  He states this is completely inaccurate and not true.  He stresses and reemphasizes the fact that before 9/11 he was never treated for any of the conditions he is now suffering from.  He contends the advisory’s statement that “Causes are likely multiple and related to the individual’s preexisting physiological, mental, and emotional background” is wrong as, again, there were no preexisting conditions as he was not seen nor treated for any of the stated conditions prior to 9/11.  He has trouble understanding how his case can be considered preexisting.  

He contends the 180-day rule has made his case easy to deny.  He asks that the Board really look at what has happened to him after activation.  He still deals with daily headaches and migraines, severe OCD issues, respiratory problems, and wondering if he will ever find a job that he can do under his medical circumstances.  He contends the loss of his paperwork by the FPEB caused him to be discharged from active duty without further pay or medical benefits.  Even after showing proof that his fax was received, he has suffered over the past eight months wondering what was happening with his situation.  He feels he was not treated fairly; that he proved his case by showing he indeed got the pertinent rebuttal paperwork to the appropriate office prior to the suspense date.  He believes 100% that the military caused his severe health issues.  There is no record showing any health concerns prior to 9/11.  Only after his activation did his health deteriorate and he became disabled.

He thanks the Board for their time, patience, and understanding.  He asks that the Board take sufficient time and energy in completing his case with absolutely no bias and predisposition.

Applicant’s complete response is at Exhibit E.

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ADDITIONAL AIR FORCE EVALUATION:

The BCMR Medical Consultant is of the opinion that no change to the record is warranted.  He notes the applicant was discharged without disability benefits for Obsessive Compulsive Disorder (OCD) associated with undifferentiated somatoform disorder, asthma, and headaches that were determined by the PEB and SAFPC to have existed prior to service (EPTS) without service aggravation.  Based on the preponderance of evidence and accepted medical principles, the reviewer concludes that the applicant’s OCD (with associated somatoform features) existed prior to entry onto active military service.  Evidence of record indicates the applicant’s symptoms worsened in response to a breakup with his girlfriend and the September 11, 2001 terrorist attacks.  Although he was ordered to active duty in the few weeks prior to worsening of his symptoms, he was serving at his home base and there is no evidence in the record that indicates there was any aspect of his military duties that directly or permanently contributed to the exacerbation of his symptoms.  His headaches were a manifestation of his underlying psychological problem and were not separately unfitting.  He had a documented, pre-service history of exercise-induced bronchial hyper-reactivity (initially diagnosed as exercise-induced asthma, later retracted), and recurrent bronchitis.  His symptoms of chest pains and shortness of breath were due to anxiety and not asthma.  The positive methacholine bronchoprovocation test following activation on active duty confirmed the presence of bronchial hyper-reactivity and does not represent a new diagnosis of asthma incurred while on active duty, or a permanent aggravation of a preexisting condition.  He states the 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 complete evaluation is at Exhibit F.

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APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Applicant contends that a variety of incorrect statements need to be addressed.  He argues that the statement in the advisory “In the two weeks before his mobilization, the applicant had apparently been performing his annual two week tour of duty…” is incorrect as, prior to 9/11 he was working at his state job and filling back-fill days for the Active Guard Reserve (AGR) program.  He states that once 9/11 happened, he volunteered for active duty for as long as it took.  He states he originally volunteered for a year but was counseled to not do so as he would then be considered deployable at any time and would be under the control of the Air Force.  He chose not to volunteer for that amount of time and became sick in the 3 to 4-week time frame following 9/11.

Regarding the advisory’s statement “Review of available medical records contained in the case file indicates the applicant experienced obsessive-compulsive symptoms prior to 9/11 and had been under the care of a psychologist for two years prior to his activation…” the applicant contends he did see a doctor for personal reasons but not for OCD.  He states that comment is irrelevant to his case and needs to be disregarded.  He stresses he was never seen for OCD problems prior to 9/11 nor was he ever medicated for any OCD-related problems.  

The statement in the advisory “…documentation from the November 2001 hospitalization for headache with acute quadriparesis (neurological impairment of all four extremities) concluded his symptoms were due to a breakup with his girlfriend and the process of buying a house and made no mention of military activation or 9/11 as a cause for his statements…” is incorrect and false.  He is clueless as to where that information was found as he had no problems with his girlfriend at the time and the house-buying process went smoothly and with no problems.  Another advisory statement indicating he was interested in leaving active duty in the ANG in order to accept another employment opportunity in the State of XXXXXXX is incorrect and he would like to be provided the source of that information, as he did not write that statement.  He states he never asked for demobilization, even after he became ill.  

The advisory statement that “…he reported no history of headaches prior to September 11, 2001, however, medical documentation indicates he experienced headaches associated with a neck condition in 2000 that prevented him from completing a period of active duty.  The headaches were intertwined with his OCD and a familial predisposition is indicated by a reported family history of migraines in the father…” is totally and completely false as he was never unable to complete any active duty training because of headaches.  The documentation does state, however, that medication for a bulged disk in his neck was responsible for the missed training as well as a regulation that would not let him carry a weapon while on said medication.  The statement about his father is also completely false has his father has never had a problem with migraines, headaches, or any other illness.

In conclusion, the advisory presents obviously incorrect statements, which definitely need to be reevaluated and assessed.  The VA has service-connected his disability and he wonders why there is so much confusion regarding his case.  He continues to suffer a life that has turned into a nightmare because of worsening OCD problems and migraines.  His squadron and his commanders treated him unfairly as, while on medical hold, he was forced to clean bathrooms, mop floors, and perform a host of other janitorial duties against the recommendations of his doctors.  He was told he was faking it and conducting a game.  He was harassed by calls to his home, presumably to make sure he was there, and was actually followed; again presumably to make sure he was going where he said he was going.  He lost pay from the military that he was entitled to for the duration of the time it would have taken for the military to review his case, he lost medical benefits when his active duty orders expired, and became unemployed, all due to his becoming sick while on active duty.

Applicant’s complete response, 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 timely filed.

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 sympathize with his medical situation; however, we agree with the opinions and recommendations of the Air Force offices of primary responsibility and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  In fact, to preclude an error or injustice and as an exception to policy, SAFPC, after thoroughly analyzing the case file, inputs from the member (including his taped testimony), MEB, and FPEB and IPEB recommendations, concurred with the original MEB finding of EPTS.  Additionally, a detailed review of the record by the BCMR Medical Consultant validated the finding of the original MEB.  Therefore, in the absence of evidence to the contrary, 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 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 AFBCMR Docket Number BC-2003-02885 in Executive Session on 27 April 2004, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 19 Aug 03, w/atchs. 
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPD, dated 1 Mar 04, w/atchs.
    Exhibit D.  Letter, SAF/MRBR, dated 5 Mar 04.
    Exhibit E.  Letter, Applicant, dated 11 Mar 04.
    Exhibit F.  Letter, Medical Consultant, dated 2 Jun 04.
    Exhibit G.  Letter, Applicant, dated 24 Jun 04, w/atchs.