RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-03382
		INDEX NUMBER:  108.00
	XXXXXXX	COUNSEL:  None

	XXXXXXX	HEARING DESIRED:  Yes

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APPLICANT REQUESTS THAT:

He be granted service connection and compensation for his diagnosis of diabetes mellitus based on the Department of Veterans Affairs’ (DVA) determination that it is service connected.

The twenty years of satisfactory service he has for retirement from the Reserves be equated to twenty years of service for the purpose of participating in the combat-related special compensation program.

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APPLICANT CONTENDS THAT:

It is unjust not to have his diabetes mellitus declared as service connected because the basis used by the Air Force to not consider it service connected is the same as that used by the DVA in their determination that it is.  In support of his appeal, applicant provides a copy of the medical paperwork showing his diagnosis of diabetes mellitus requiring insulin and coronary heart disease, his medical disqualification and the ARPC/SG’s decision that he should be administratively discharged for medical reasons, and the DVA’s rating decision regarding his illness.

In support of his request for participation in the CRSC program, applicant provides a copy of his application for participation in the program.

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

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STATEMENT OF FACTS:

The applicant entered active duty on 30 Sep 66.  His service included a tour of duty in the Republic of Vietnam.  The applicant was discharged from active duty on 15 Aug 71 after resigning to attend school.  The applicant then transferred to the Air Force Reserve.  On 8 Mar 94, after reviewing the results of a physical examination conducted on the applicant, the ARPC Surgeon found the applicant medically disqualified for continued military service due to Coronary Artery Disease and Diabetes Mellitus requiring insulin.  It was recommended that the applicant be discharged according to AFR 35-41, Vol III and that he was not eligible for disability processing.  On 25 Apr 94, the ARPC Director of Personnel notified the applicant that the ARPC Commander had initiated action to determine if he should be discharged from his appointment as an Air Force Reserve officer.  The applicant acknowledged receipt on 2 May 94 and did not submit further documentation.  On 27 Jun 94, the Physical Disqualification Review Board considered the applicant’s case and determined that the applicant’s medical disqualification had been made by the appropriate surgeon in accordance with the pertinent directive.  The board recommended that the applicant be discharged with an honorable characterization of service.  On   23 Sep 94, the Director of Personnel notified the applicant of the board’s recommendation.  The applicant was also advised of his eligibility to transfer to the Retired Reserve.  On 18 Nov 94, the applicant was transferred to the Retired Reserve effective 31 Dec 96 with eligibility for retired pay when he attains age 60.

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AIR FORCE EVALUATION:

ARPC/SG recommends denial of the applicant’s requests.  In Jan 04, the applicant was granted compensation under CRSC, so that issue no longer exists.  At the time the applicant transferred to the Retired Reserve, his medical condition negated his remaining in service.  He was appropriately processed under conditions for continued military service.  Insulin dependent diabetes was and is not waiverable for worldwide duty and is disqualifying.

The complete evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his response to the ARPC/SG evaluation, applicant states that their statement of his requested action, “change the discharge action from administrative separation for medical reasons to disability retirement,” was not specifically what he is requesting.  His continuing request is that the ARPC/SG action be modified from administrative separation without compensation to administrative separation with compensation, specifically his earned compensation and benefits.  The applicant states that it is not his position that the ARPC/SG erred in determining that he suffered from diabetes mellitus and coronary artery disease but that the ARPC/SG acted perfunctorily and without logic to determine there was a basis to order an administrative discharge without compensation.  Applicant notes that with the exception of his initial medical examination, he always noted the medical condition of diabetes mellitus.  He discusses the timeline of his medical diagnoses.  Applicant states he is aware of a fellow ROTC cadet from undergraduate school who was diagnosed with diabetes mellitus during the time frame covered by his action, but was allowed to remain on active duty with the Air Force until a proper retirement time without administrative separation without compensation or the threat thereof.

Applicant discusses the DVA’s determination regarding his medical condition.  He opines that ARPC/SG fails to give recognition and acceptance of the full effect of the DVA’s determination.  The DVA presumes service connection of diabetes mellitus diagnosed after the fact of service in the Republic of Vietnam.  The Air Force as a subsidiary of the US Government is bound by its determinations and actions.  Applicant further indicates that the evaluation totally ignores the genesis of his application and fails to give recognition to his service in the Republic of Vietnam during 1969 and 1970 on military orders from the Air Force.  It also fails to give recognition to his time spent in the Ready Reserve and accumulation of the time specified for Air Force compensation and benefits.  Lastly, it seeks to ignore the Congressional mandates of fairness, justness, and equity in recognition of each of these identified decisions.

The applicant discusses what he considers ARPC/SG’s “authentically contemptuous denial” of his service to the United States and the Air Force by referring to him as a civilian, i.e., “Mr.”  Applicant opines that this intentional act of omission and commission gives notice that it denies the applicant recognition of the proper, fair, just and equitable application of rules, regulations and policies due all members of the US Air Force.  The applicant offers seven issues that must be considered to explore the relevant facts of his case:

	  1.  That he was ordered by the Air Force to perform duties via military orders in the Republic of Vietnam.

	  2.  A workday was literally 24 hours a day, seven days per week.

	  3.  The use by relevant authorities of chemical agents such as Agent Orange and other herbicides, which have been determined to cause illness, of which diabetes mellitus is an identified medical condition.

	  4.  Whether he was in the theater of military operations at a time when the identified agents causing diabetes mellitus were employed by military authorities.

	  5.  His service to the Air Force in the Republic of Vietnam from I Corps in the North to IV Corps in the South, inclusive of the Central Highlands.

	  6.  The character of his service resulting in the award of the Bronze Star Medal.

	  7.  Elimination of any and all other causes of diabetes mellitus from his medical history.

The applicant states that ARPC/SG can fulfill its duties by adherence to the determinations of the DVA in regard to the causes of diabetes mellitus based, in part, on studies conducted by the Air Force.  Applicant discusses the Air Force’s determination that his illness was not in line of duty and states that ARPC/SG has failed to eliminate any other proximate cause for his suffering from the illness of diabetes mellitus other than his service in the Republic of Vietnam.  To establish a proximate cause different from that established by the DVA requires more analysis by ARPC/SG than that presented in its initial decision for his administrative separation and its advisory opinion.

Applicant addresses the issue of his request for CRSC.  He states that the issue has not been resolved as indicated by ARPC/SG.  Applicant discusses paperwork he received indicating that payments would be made directly to his bank account.  To date, he states that he has not received payment.

The applicant’s complete response, with attachments, is at Exhibit E. 

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ADDITIONAL AIR FORCE EVALUATION:

Pursuant to the Board’s request, the AFBCMR Medical Consultant provided an additional evaluation of the applicant’s request.  He recommends denial of the applicant’s request.

The military service disability systems, operating under Title 10, and the DVA disability system, operating under Title 38, are complementary systems not intended to be duplicative.  The Military Disability Evaluation System, established to maintain a fit and vital fighting force, can by law under Title 10, only offer compensation for those diseases or injuries which specifically rendered a member unfit for continued active service, were the cause for termination of their career, and then only for the degree of impairment present at the time of separation.  According to Title 10, Chapter 61, for members of the Reserve Component to be eligible for Department of Defense (DoD) disability benefits, the impairment must be the proximate result of duty, or were incurred or aggravated in the line of duty while on active for more than 30 days and entitled to basic pay.  The DVA operates under a separate set of laws, specifically addresses long term medical care, social support and educational assistance.  The DVA is chartered to offer compensation and care to all eligible veterans for any service connected disease or injury without regard to whether it was unfitting for continued military service.  The DVA is also empowered to reevaluate veterans periodically for the purpose of changing their disability awards if their level of impairment varies over time.  Operating under different laws with a different purpose, determinations made by the DoD under Title 10 and by the DVA under Title 38 are not binding on the other.

The applicant’s disqualifying chronic medical conditions (diabetes and coronary artery disease) did not entitle him to consideration for referral into the Disability Evaluation System for disability compensation.  His chronic conditions were not incurred during a period of active duty of more than 30 days and were not incurred as a direct/proximate result of active duty.  Based on established medical principles, the applicant’s diabetes is directly related to familial factors and obesity.  In 2001, over 6 years following the applicant’s discharge, the DVA added Adult Onset Diabetes to the list of diseases associated with Agent Orange exposure for purposes of granting presumptive service connected disability compensation under Title 38.

Title 38, Section 1116 is the law that provides for the DVA to grant service connected disability benefits for certain diseases that develop after discharge that may have been the result of exposure to herbicides during service in Vietnam.  For the purposes of DVA disability compensation, certain diseases (as identified by the Institute of Medicine/National Academy of Sciences) are then “presumed” to be service connected.  Based on the conclusion by the Institute of Medicine, National Academy of Sciences that there existed “limited or suggestive evidence” of a link between Adult Onset (Type II) Diabetes and Agent Orange and other herbicides used in Vietnam, Adult Onset Diabetes was designated in 2001 as one of these diseases (The DVA recognizes diseases as being associated based on a low threshold for statistical association that favors the veteran).  Veterans do not have to prove that Agent Orange caused their medical problems to be eligible for compensation under this law and the VA makes the presumption of exposure to Agent Orange for Vietnam veterans.  Title 38 presumptions generally apply to CRSC.

The applicant’s argument that the Title 38 provision for presumptive service connection due to Agent Orange in DVA disability compensation applies to all other branches of the government for all purposes is not accurate.  Title 38 presumptions of service connection for Agent Orange do not apply to DoD disability processing under Title 10.

The complete evaluation is at Exhibit F.

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APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

In his response to the additional Air Force evaluation, the applicant states that the level of origin of the evaluation brings into issue the matter of undue influence.  The applicant opines that the BCMR Medical Consultant sits in the chain of command of the Board members and makes his advisory opinion too great a weight for the applicant to overcome.  The applicant lists six questions that he believes the BCMR Medical Consultant’s advisory raises in the Board member’s minds.  Applicant opines that the BCMR Medical Consultant has taken the role of an advocate for the ARPC/SG’s error plagued and unjust position against him rather than as a consultant to the board.  It is his position that the additional advisory opinion prepared by the BCMR Medical Consultant should be kept out of the Board’s proceedings because its mere presence introduces the element of undue command influence.

The applicant states that the issue of his CRSC payment is still a live issue for the AFBCMR to resolve and that it is necessary for the AFBCMR to issue its opinion and order directing immediate payment to the applicant of all sums due him from 1 Jan 04 forward.

The applicant opines that the BCMR Medical Consultant’s reference to his family history and statement that he has a long history of obesity is a personal attack without logic and totally misses the facts and issues before the AFBCMR.  The applicant contrasts the medical issues of a member of his family who developed onset diabetes after exposure to Agent Orange and of a member who was not exposed and did not develop onset diabetes.  He concludes that the implications of the BCMR Medical Consultant’s additional advisory opinion are without merit.  The applicant also discusses how treatment for diabetes contributes to weight retention and that failure of the BCMR Medical Consultant to bring this to the Board’s attention constitutes, at the least, an ethical violation.  The applicant references a study he is forwarding to the Board sponsored by the American Diabetes Association.

The applicant indicates that the BCMR Medical Consultant in his advisory reflects a lack of understanding of a precise legal term, proximate cause.  He discusses how his service in Vietnam and exposure to Agent Orange resulted in his onset diabetes.  The applicant also states that the additional advisory opinion is deficient in asserting the applicant’s condition must have been quantified for compensation and/or benefits at the time of his separation.  He references the United States Court of Claims case of Walters v. United States as controlling precedent that he is entitled to disability retirement from his date of discharge in August 1971.  The applicant also discusses how the results of the physical exam that led to his administrative separation verify that, as a minimum, he is entitled to disability retirement benefits.

The applicant’s complete submission is at Exhibit H.

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Additional Response to Additional Air Force Evaluation:

In further support of his appeal and as part of his rebuttal to the additional Air Force evaluation, the applicant submitted a copy of a study from the American Diabetes Association.  The study addresses the relationship between diabetes insulin treatment and weight gain/retention.  The applicant believes that this study makes the argument of the BCMR Medical Consultant regarding his being overweight moot.

The applicant’s complete submission, with attachment, is at Exhibit I.

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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; however, we agree with the opinion and recommendation of the Air Force offices of primary responsibility and adopt its rationale as the primary basis for our conclusion that the applicant has not been the victim of an error or injustice.  We note the applicant’s allegations of undue command influence on the part of the BCMR Medical Consultant.  However, it appears that the applicant’s concerns are based on a lack of understanding of the Board’s organizational structure, which makes the type of undue influence alleged by the applicant impossible.  Regarding the applicant’s request for payment of CRSC benefits he has been approved for, we have been advised by AFPC/DPPD/CRSC that the letter sent to the applicant, dated     12 Feb 04, advising him to expect payment beginning 60 days from his receipt of the letter was in error and should have advised him that his payments would not begin until he reaches age 60.  Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

4.  The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved.  Therefore, the request for a hearing is not favorably considered.

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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 Docket Number BC-2003-03382 in Executive Session on 1 and 9 September 2004, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 3 Oct 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, ARPC/SG, dated 7 Jun 04.
    Exhibit D.  Letter, SAF/MRBR, dated 11 Jun 04.
    Exhibit E.  Letter, Applicant, dated 18 Jun 04, w/atchs.
    Exhibit F.  Memorandum, BCMR Medical Consultant, 
                dated 22 Jul 04.
    Exhibit G.  Letter, AFBCMR, dated 27 Jul 04.
    Exhibit H.  Letter, Applicant dated 25 Aug 04.
    Exhibit I.  Letter, Applicant, dated 27 Aug 04, w/atch.