RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-02671
		INDEX CODE:  108.00

		COUNSEL:  NONE

		HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  30 Feb 06

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APPLICANT REQUESTS THAT:

By amendment, his records be corrected to reflect his permanent retirement by reason of physical disability.

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APPLICANT CONTENDS THAT:

He was discharged from active duty without due process, and he was not allowed personal access to the medical and/or review boards decisions while on active duty.

In support of his appeal, the applicant provided personal statements and documentation from his military personnel records.

By letter, dated 21 Sep 04, the applicant provided an amended request for correction of his military records, requesting that his records be corrected to reflect his permanent retirement by reason of physical disability, and he provided additional documentation for the Board’s consideration.

Applicant’s complete submissions, with attachments, are at Exhibits A and C.

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STATEMENT OF FACTS:

Applicant’s available military personnel records indicate the applicant enlisted in the Regular Air Force on 25 Jan 62 for a period of four years in the grade of airman basic.  He was retained beyond his expiration term of service (ETS) of 24 Jan 66 due to hospitalization.  

On 13 Jun 66, a Medical Evaluation Board (MEB) convened and established a diagnosis of spontaneous pneumothrax.  The MEB recommended the applicant be returned to duty.

Applicant was honorably released from active duty on 30 Jun 66 under the provisions of AFR 39-10 (Separation - Expiration of Term of Active Obligated Service) in the grade of airman first class and transferred to the Air Force Reserve.  He was credited with four years, five months, and six days of active service.  The terminal date of his Reserve obligation was 24 Jan 68.

On 28 Sep 66, he was notified by the Air Reserve Personnel Center (ARPC) that he had been medically disqualified by appropriate medical reviewing authority for General Military Service because of his diagnosis of spontaneous pneumothorax.

On 18 Oct 66, the applicant was officially notified that action had been initiated to determine whether or not he should be discharged from his enlistment as a Reserve airman.

On 25 Jan 67, an Air Force Reserve Disposition Board found the applicant was medically disqualified for active military service or for active military service with a waiver, and recommended he be honorably discharged from his Reserve enlisted status in the United States Air Force.

On 16 Mar 67, the applicant was relieved from his assignment and honorably discharged from the Air Force Reserve.

The remaining relevant facts pertaining to this application are contained in the letter prepared by the Medical Consultant.

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AIR FORCE EVALUATION:

The Medical Consultant recommended denial noting the applicant was retained on active duty past his established date of expiration of term of obligated active service in order to complete treatment and convalescence for recurrent pneumothorax. After recovery from surgery he was shown to be without symptoms of shortness of breath or chest pain, demonstrated normal lung function, and had a normal physical examination consistent with an absence of occupational impairment.  Prior to release from active duty, the applicant underwent an MEB that determined he was fit for continued military service in accordance with medical standards (AFR 35-4) that indicated recurrent pneumothorax successfully corrected by surgery was not considered unfitting for continued military service.  According to the Medical Consultant, a return to duty determination is not considered an adverse determination that a member may appeal since it does not cut a member's career short.  By today's regulations, policy and procedure, a member similarly placed on medical hold for surgical treatment of recurrent spontaneous pneumothorax who also fully recovers, would also be returned to duty and allowed to separate.  Active duty members with this condition without a scheduled separation would continue to serve on active duty and even members performing flying duties may be able to return to flying duties with a waiver if underlying causes are corrected without recurrence.  The evidence of record shows the applicant was properly evaluated by the MEB and returned to duty in the Regular Air Force in accordance with policy and regulations.  There is no evidence the applicant desired to remain on active duty in the Air Force or attempted to reenlist prior to his separation.  A review of his service medical records disclosed no other medical condition that warranted consideration in the Disability Evaluation System (DES).

Once the applicant separated and was transferred to the Air Force Reserve, his status changed from being a member of the active Regular Air Force, to being a member of the Inactive Reserves, a civilian who could be called to active duty if qualified and needed.  When he became a member of the Inactive Reserves, medical standards in AFM 160-1, Medical Examination and Medical Standards, applied to him.  AFM 160-1, Paragraph 1.c. (2), stipulates that AFM 160-1 standards apply to members of the Air Force Reserve when they enter active duty.  Because the reason for the Reserves is to be called to active duty when needed, these medical standards applied to members in Reserve status.  Also, AFR 45-43, paragraph 19, stipulates specifically that medical standards in AFM 160-1 apply.  Medical standards in AFM 160-1 state that there must be a period of two years with no recurrent pneumothorax following corrective surgery (Chapter 5, paragraph 76); therefore, the applicant was medically disqualified since it had been less than one year since his surgery.  This two-year period is due to the fact that individuals who have shown recurrent pneumothorax are at increased risk for further recurrences.  Even though there has been surgery on one side to prevent recurrence on that side, there is still a remaining increased risk for occurrence on the previously unaffected side.  Furthermore, the applicant was shown to have an underlying abnormality causing pneumothorax, pulmonary blebs.  Medical standards to retain members already on active duty accept a slightly higher medical risk than standards for accession or re-accession.  The two-year period of observation during which he would be disqualified would have taken him to the established date of his obligated Reserve service, thus further retention in the Reserves was unnecessary.  Evidence of the record clearly shows evidence of due process afforded to the applicant by the Air Force Reserve.  Although he requested review by the Air Force Disposition Board and was afforded appointed counsel, he submitted no request or statements on his own behalf.  A review of his case by the Disposition Board, which included a medical member, resulted in his discharge from the Reserves due to medical disqualification.

The Medical Consultant noted that following his separation from the Air Force, the applicant was granted service connection by the Department of Veterans Affairs (DVA) for residuals of spontaneous pneumothorax rated at 10 percent from 1 Jul 66.   A DVA Rating Decision, dated 5 Aug 04, shows continuation of the 10 percent rating for residuals of spontaneous pneumothorax. A DVA compensation and pension examination, dated 25 Jun 04, states the applicant has not experienced any recurrence of his spontaneous pneumothorax following surgery in Jan 66 and has remained entirely asymptomatic.

The Medical Consultant indicated that the fact the applicant has been granted service-connected disability from the DVA does not entitle the applicant to Air Force disability compensation.  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.  Operating under different laws with a different purpose, determinations made by the Department of Defense (DoD) under Title 10 and the DVA under Title 38 are not determinative or binding on decisions made by the other.  The mere fact the DVA may grant service-connected compensation ratings following separation or retirement does not establish eligibility for similar action from the Air Force.  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 disease 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.  For an individual to be considered unfit for military service, there must be a medical condition that prevents performance of any work commensurate with rank and experience.

When members transition from active service in the Regular Air Force to the Reserves (Ready or Inactive), the change in status is attended by a change in the applicable laws and regulations.  Unless performing inactive duty training or on active duty in receipt of basic pay, members of the Reserves are in civilian status.  Although the applicant's medical condition was not unfitting for continued active service in the Regular Air Force under medical standards for continued active service, it was determined by competent Air Force Reserve medical authority to be disqualifying for membership in the Reserves under slightly more stringent medical standards that applied in his new status.  Because the condition was not incurred or aggravated by Reserve duty (inactive or active) while a member of the Reserves, the condition was not compensable even though it is service connected.  Two years after the surgery, the applicant would have again been medically qualified for military service.

In the Medical Consultant’s opinion, the action and disposition in this case were proper and equitable reflecting compliance with Air Force directives that implement the law, and that no change in the records is warranted.

A complete copy of the Medical Consultant’s evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant reviewed the advisory opinion and furnished a response indicating the Medical Consultant’s advisory opinion contained factually incorrect comments when it indicated he voluntarily extended his term of service beyond 24 Jan 66.  He was not privileged to any medical (or other) decisions made (for him) by the Air Force prior to 3 Jan 66 and thereafter leading to his separation for the convenience of the government.  He also indicated the advisory did not express any personal findings or the comments of his surgeon, who stated he was under military orders not to inform him of his options, and he reiterated he was not afforded due process.

Applicant’s complete response, with attachment, is at Exhibit F.

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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.  The applicant's complete submission was thoroughly reviewed and his contentions were duly noted.  However, we do not find the applicant’s assertions or his supporting documentation sufficiently persuasive to override the rationale provided by the Medical Consultant.  The evidence of record indicates that after being diagnosed and treated for spontaneous pneumothrax, the applicant was honorably released from active duty and transferred to the Air Force Reserve.  Subsequently, he was found medically disqualified for continued service and honorably discharged from the Air Force Reserve.  No evidence has been presented which shows to our satisfaction that at the time of his release from active duty, the applicant was unfit to perform the duties of his rank and office within the meaning of the law.  Nor do we find any evidence that convinces us the information used as a basis for his medical disqualification for continued service in the Air Force Reserve was erroneous.  In view of the foregoing, and in the absence of sufficient evidence to the contrary, we agree with the recommendation of the Medical Consultant and adopt his rationale as the basis for our decision that the applicant has failed to sustain his burden of establishing he has suffered either an error or an injustice.  Accordingly, 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-2004-02671 in Executive Session on 20 Oct 05, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 27 Aug 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, applicant, dated 21 Sep 04, w/atchs.
    Exhibit D.  Letter, Medical Consultant, dated 15 Sep 05.
    Exhibit E.  Letter, SAF/MRBR, dated 16 Sep 05.
    Exhibit F.  Letter, applicant, dated 28 Sep 05, w/atch.