RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-00025
		INDEX CODE:  108.00

		COUNSEL:  NONE

		HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  3 JUNE 2006

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APPLICANT REQUESTS THAT:

He be awarded a disability retirement.

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APPLICANT CONTENDS THAT:

In October 1969, he was injured in a fall from a CH-3 helicopter.  At that time he was a pararescue technician participating in a rescue mission.  Permanent pain from his injuries did not appear until 1985 (11 years after his retirement from the Air Force).  Over the next five years (until 1990) the pain increased so much that he was no longer able to work.  The Department of Veterans Affairs (DVA) has awarded him 80% disability compensation for pay and a combined total of 70% for the fall from the helicopter.

By nobody’s fault there is an injustice here and he feels his Air Force records should be amended to show he was injured and eventually disabled by the fall from the helicopter.  Disability compensation should be retroactive to June 1974, his retirement date.  If that is not possible then the retroactive date should be January 1990 when he became completely disabled to work and unemployable.

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

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STATEMENT OF FACTS:

On 10 November 1953, the applicant enlisted in the Regular Army in the grade of private and on 31 October 1956 he was honorably discharged in the grade of private second class, under the provisions of AR 635-205 - Early Separation (Transferred to the Army Reserves).

On 26 November 1956, the applicant enlisted in the Regular Air Force in the grade of airman first class.

SF Form 88, Report of Medical Examination - for annual flying class II, dated 23 October 1973 indicates the applicant was medically qualified for flying class II.

SF Form 88, Report of Medical Examination for Retirement, dated 18 March 1974, indicates the applicant denied any significant medical or surgical history since his last medical examination.

The applicant’s performance reports indicates from 1 June 1968 through 6 February 1973 he received overall evaluations of 9.  The performance report closing 6 February 1974 reflects an overall rating of 7.

On 1 July 1974, the applicant retired in the grade of technical sergeant.  He served 20 years, 6 months, and 26 days of total active military service.

A Department of Veterans Affairs Rating Decision, dated 24 February 2004, indicates the following:

	1. Service connection for colon cancer claimed as due to agent-orange exposure was denied.

	2. Service connection for vascular circulatory problems claimed as due to cigarette smoking was denied.

	3. Entitlement to individual unemployability was granted effective 11 September 2001.

	4. Basic eligibility to Dependents’ Educational Assistance was established from 11 September 2001.

On 2 June 2004, the Air Force Board for Correction of Military Records (AFBCMR) advised the applicant that since it appeared he was seeking benefits under Combat-Related Special Compensation (CRSC), his case was being returned to the Air Force Personnel Center (AFPC), for a determination regarding that issue and his case was closed administratively (Exhibit D).

On 12 July 2004, AFPC/DPPDC notified the applicant that his application for CRSC was approved.  They indicated in making this decision, the following determinations were made regarding his disability: combat related - impaired hearing (10% disability) and non combat-related - spinal disc-condition (60% disability), hemorrhoids (10% disability).  The applicant stated in his application he fell from a helicopter.  His service medical records do note an incident in 1969; however, his only injury was chest pain.

The remaining relevant facts pertaining to this application, extracted from the applicant's military records, are contained in the letters prepared by the appropriate offices of the Air Force (Exhibits C, E, & G).

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AIR FORCE EVALUATION:

AFPC/DPPD recommended denial indicating the applicant’s medical record included a copy of his retirement medical examination conducted on 18 March 1974.  The medical examination does not appear to indicate the applicant was having a serious or life threatening medical problem severe enough to warrant the initiation of a Medical Evaluation Board (MEB) through military disability channels.  In fact, his retirement medical examination reflected him as qualified for worldwide service with no disqualifying physical profiles.  A review of his last performance report shows he was reasonably capable of performing his military duties as the Non-Commissioned Officer in Charge (NCOIC) of the Pararescue Section; however, his off-duty behavior was scrutinized by his commander.  A member’s ability to perform their military duties is one of the main concerns when considering a servicemember for a disability discharge/retirement under the provisions of AFM 35-4.

Medical records show the servicemember was treated for various conditions while on active duty.  The mere fact that a person may have been treated for a medical condition does not automatically mean the condition is unfitting for continued military service.  To be unfitting, the medical condition must be such that it by itself precludes the person from fulfilling the purpose for which he or she is employed.  USAF disability boards can only rate unfitting medical conditions based upon the individual’s medical status at the time of their evaluation; in essence a snapshot of the condition at that time.  If a Physical Evaluation Board (PEB) renders a finding of unfit, federal law provides appropriate compensation due to the premature termination of the member’s career.  Compensation for unfitting medical conditions while on active duty is authorized under the provisions of Title 10, United States Code (USC).  To qualify for a disability retirement, the servicemember would have had to attain a serious or life threatening medical condition prior to his release from active duty.  Records fail to show this to be the case in question.  

The applicant’s case file revealed no errors or irregularities during his retirement process that would justify a change to his military records.  The preponderance of evidence provided by the applicant does not substantiate or support his request for a disability retirement.  He has not submitted any material or documentation to show an error or injustice occurred at the time of his voluntary retirement.

The evaluation is at Exhibit C.

AFPC/DPPD reviewed this case a second time and recommended denial indicating the Combat Related Special Compensation (CRSC) program was established to provide compensation to certain retirees with Combat-Related disabilities that qualify under the criteria set forth in Public Law 107-314.  If the veteran fails to satisfy the preliminary CRSC criteria, no further consideration by their service department is required and the application will be denied accordingly.

If the veteran satisfies the preliminary CRSC criteria, the application is reviewed for combat related determination.  In order to determine a disability is combat-related, there must be objective documentary evidence that the disability is the direct result of a combat event or events or performance of duty simulating war or caused by hazardous service or an instrumentality of war.  In addition, there are other conditions that are considered presumptive of Agent Orange, Radiation, Mustard Gas, or Prisoner of War (POW) internment by the Department of Veteran’s Affairs (VA), which also qualify for CRSC.

Beginning in June 2003, the program allowed compensation payments to active duty personnel and reservists with 7200 or more points, if the individual had disability rating(s) of at least 60% that were combat-related, or a rating of 10% or more from Purple Heart awarded injuries.  In January 2004, the criterion was lowered across the board to 10% or more disabilities that were combat-related.  The effective date of CRSC compensation, established by law, is based on the date the program came into effect, or the date the individual began receiving Department of Veterans Affairs (VA) compensation for the approved conditions, whichever is later.  In the case of the applicant, he did not meet basic program parameters until December 2003, when his combat-related disabilities were rated at 60% and the VA began offsetting his retired pay for that amount.

They recommend denial of the applicant’s request for compensation made retroactive to his retirement date, as claimed on the DD Form 149, Application for Correction of Military Record under the provisions of Title 10, United States Code, Section 1552.  This does not meet the mandatory criteria for compensation under the CRSC program as outlined under the provisions of Public Law 107-314.

The evaluation, with attachment, is at Exhibit E.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 25 February 2005, copies of the Air Force evaluations were forwarded to the applicant for review and response within 30 days (Exhibit F).  As of this date, no response has been received by this office.

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ADDITIONAL AIR FORCE EVALUATION:

The BCMR Medical Consultant recommended denial indicating the applicant’s original AFBCMR application appeared to be in conjunction with his application for compensation under the CRSC Program.  The applicant’s case file was forwarded to the Air Force CRSC Board and the applicant was granted CRSC for his service-connected disabilities.  It appeared the applicant was under the impression that a disability retirement from the Air Force was necessary in order to be eligible for CRSC; however, this is not the case.

A review of the applicant’s service personnel and service medical records indicate he voluntarily retired for length of service and did not have any medical condition that warranted referral for disability evaluation at the time of his retirement.

Department of Veterans Affairs documentation indicates the applicant developed colon cancer in the years following his retirement.  The DVA had denied the applicant’s claim for service connection based on exposure to Agent Orange while in Vietnam.  Colon cancer is not a condition recognized by the Institute of Medicine as having any association with exposure to herbicides (in particular dioxin) and is not a condition that qualifies a veteran for service connection under provisions of Title 38 for presumptive service connection due to exposure to herbicides in Vietnam.  

Action and disposition in this case are proper and equitable reflecting compliance with Air Force directives that implement the law.

The evaluation is at Exhibit G.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 22 April 2005, a copy of the Air Force evaluation was forwarded to the applicant for review and response within 30 days (Exhibit H).  As of this date, no response has been received by this office.

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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.  After reviewing the evidence of record, we are convinced the applicant’s separation from the Air Force was in accordance with Air Force policy.  His contentions are duly noted; however, in our opinion, the detailed comments provided by the AFBCMR Medical Consultant adequately address these allegations.  Therefore, we are in agreement with the comments and recommendation of the Medical Consultant and adopt his rationale as the basis for our decision that the applicant has not been the victim of either an error or injustice.  In this respect, the applicant’s service personnel and service medical records indicate he voluntarily retired for length of service and that he did not have any medical condition that warranted referral for a disability evaluation at the time of his retirement.  In view of the above and in the absence of evidence to the contrary, we find no compelling basis upon which to recommend favorable action on this application.

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THE BOARD DETERMINES THAT:

The applicant be notified the evidence presented did not demonstrate the existence of an error or injustice; the application was denied without a personal appearance; and 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 14 September 2005, under the provisions of AFI 36-2603:

The following documentary evidence pertaining to AFBCMR Docket Number BC-2004-00025 was considered:

   Exhibit A.  DD Form 149, dated 29 December 2003.
   Exhibit B.  Master Personnel Records.
   Exhibit C.  Letter, AFPC/DPPD, dated 11 February 2004.
   Exhibit D.  Letter, AFBCMR, dated 2 June 2004.
   Exhibit E.  Letter, AFPC/DPPD, dated 17 February 2005, w/atch.
   Exhibit F.  Letter, AFBCMR, dated 25 February 2005.
   Exhibit G.  Letter, BCMR Medical Consultant,
			   dated 18 April 2005.
   Exhibit H.  Letter, AFBCMR, dated 22 April 2005, w/atch.

				Panel Chair