RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-02046
		INDEX NUMBER:  145.00
		COUNSEL:  NONE
		HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  2 JAN 06

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APPLICANT REQUESTS THAT:

His records be corrected to show he was on continuous active duty in support of Desert Storm through April 1991 and was medically separated.  

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APPLICANT CONTENDS THAT:

On 26 December 1990, he was called to active duty in support of Desert Storm.  On 16 January 1991, he was sent to the gas chamber and began to choke violently and was rushed to the hospital.  His medical records never made it to the Air Reserve Personnel Center.  He was pushed out of the Air Force without a physical examination.  He never received a DD Form 214, pay for the last two months of service or a physical examination.  Because he was young and naïve, he was told he could be held indefinitely until the war was over.  He was kept on active duty until 22 April 1991 and was told by the flight surgeon that he was unfit for duty because he had an asthma attack caused by the gas chamber.  After 13 years since the incident, he would like justice done.

In support of his appeal, applicant submits a copy of his DD Form 214 and Honorable Discharge Certificate, a copy of his pay records, copies of his AF Form 938, Request and Authorization for Active Duty Training/Active Duty Tour, and a copy of his shot record with associated medical documents.  Applicant’s submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

The applicant’s records are incomplete.  The following information was extracted from the available records and documents provided by the applicant.

The applicant was an active member of the Air Force Reserve who had prior Regular Air Force service from 23 November 1983 until 22 November 1987, when he was relieved from active duty in the grade of sergeant (E-4).  He was assigned to the Obligated Reserve Section until 6 January 1990, when he was assigned to an active Reserve position.  He was ordered to active duty on 26 December 1990 in support of Desert Storm.  He was released from active duty on 11 January 1991 and transferred to the Air Force Reserve.  He was relieved from his Reserve assignment and honorably discharged under the provisions of AFR 35-41, Volume III, paragraph 5-31 (medical disqualification), effective 1 April 1991.  His discharge orders indicate his reenlistment eligibility was “eligible with waiver.”  As of his discharge date, he was credited with 5 years, 4 months and 9 days of satisfactory Federal service.

The remaining relevant facts pertaining to his application, extracted from the available records, are contained in the advisory opinions prepared by the appropriate Air Force offices of primary responsibility.

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AIR FORCE EVALUATIONS:

AFRC/DPM recommends the application be denied.  DPM states that the military records provided by the applicant indicate he performed active duty service in support of Desert Storm for the period 26 December 1990 through 11 January 1991.  DPM further states that the applicant was separated from the Air Force Reserve for non-service connected medical disqualification.  The DD Form 214 correctly documents the applicants' active duty service.  The AFRC/DPM evaluation is at Exhibit B.  

AFRC/SG recommends the application be denied.  AFRC/SG states that due to lack of supporting medical documentation they conclude that the correct non-disability, non-medical, administrative action was proper.  The AFRC/SG evaluation is at Exhibit C. 

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APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

On 24 September 2004, copies of the Air Force evaluations were sent to the applicant for review and comment.  As of this date, this office has received no response. 

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ADDITIONAL AIR FORCE EVALUATION:

The BCMR Medical Consultant indicates the applicant was medically disqualified and released from the Air Force Reserve due to asthma or reactive airways disease that existed prior to service and was not permanently aggravated by service.  Noting the absence of medical records other than those submitted by the applicant, the BCMR Medical Consultant stated the available medical documentation indicates the applicant’s condition was mild favoring reactive airways disease or mild intermittent asthma triggered by exercise and the condition existed prior to service.  He had acute mild symptoms that resolved.  Follow up three months later indicated he was asymptomatic.

According to the governing statute, for members of the Reserve component to be eligible for Department of Defense disability benefits, the impairment must be the proximate result of duty or incurred or permanently aggravated in the line of duty while on active duty for more than 30 days and entitled to basic pay.  The BCMR Medical Consultant states that the preponderance of evidence in the medical records indicates that the applicant’s condition was not incurred during a period of duty of 31 days or more, proximately caused by duty of 30 days or less, or permanently aggravated by military service, and is not eligible for disability compensation.  The BCMR Medical Consultant is of the opinion that action and disposition in this case are proper and equitable reflecting compliance with Air Force directives that implement the law.  Therefore, the BCMR Medical Consultant recommends the application be denied.  The BCMR Medical Consultant evaluation is at Exhibit E.

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APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

On 19 April 2005, a copy of the Air Force evaluation was sent to the applicant for review and comment.  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 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.  We took notice of the applicant's complete submission in judging the merits of the case and do not find that it supports a findings the applicant served on active duty beyond 11 January 1991 or he was improperly separated from the Air Force Reserve in April 1991.  We noted the applicant’s contentions; however, we believe the detailed comments provided by AFRC/DPM and, in particular, the BCMR Medical Consultant thoroughly address his allegations.  Other than his own assertions, we have seen no evidence by the applicant that successfully refutes the assessments of his case.  Therefore, we agree with the opinions and recommendations of AFRC/DPM and the BCMR Medical Consultant and adopt the rationale provided as a basis for our conclusion that the applicant has not been the victim of either an error or an injustice.  Accordingly, the applicant’s requests are 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 this application in Executive Session on 14 December 2004 and 28 June 2005, under the provisions of AFI 36-2603:

The following documentary evidence was considered for AFBCMR Docket Number 04-02046:

	Exhibit A.  DD Form 149, dated 24 Jun 04, w/atchs.
	Exhibit B.  Letter, AFRC/DPM, dated 17 Aug 04.
	Exhibit C.  E-mail, AFRC/SGP, dated 21 Sep 04.
	Exhibit D.  Letter, SAF/MRBR, dated 24 Sep 04.
	Exhibit E.  Letter, BCMR Medical Consultant, dated 15 Apr 05.
	Exhibit F.  Letter, AFBCMR, dated 19 Apr 05.