B RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2007-02455 INDEX CODE: 110.12 XXXXXXXXXXXXXXXXXXX COUNSEL: Mr. J.P. HEARING DESIRED: YES ________________________________________________________________ _ APPLICANT REQUESTS THAT: His records be corrected to reflect a separation with severance pay rather than a Discharge Under Other Than Title 10 United States Code (USC), Chapter 61. ________________________________________________________________ _ APPLICANT CONTENDS THAT: He never had asthma as a child; therefore, the basis for his discharge and denial of severance pay were erroneous. In support of his request, the applicant provides a statement from his counsel; Secretary of the Air Force Personnel Counsel (SAFPC) decision on his separation; Informal Physical Evaluation Board (IPEB) findings; Formal Physical Evaluation Board (FPEB) findings; Medical Evaluation Board (MEB) findings; Physical Profile Serial Report; memorandum from a civilian doctor; performance evaluation records; award and decoration documents; Certificate of Release or Discharge from Active Duty; and Fitness Program reports. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ _ STATEMENT OF FACTS: On 14 July 1997, the applicant accepted a commission in the grade of second lieutenant as Reserve of the Air Force at the age of 27 and was subsequently ordered to active duty. He was progressively promoted to the grade of captain effective 15 June 2001. An MEB evaluation, dated 5 February 2004, indicates the applicant was evaluated and diagnosed with mild intermittent asthma. The MEB referred the applicant’s records to an IPEB. The IPEB findings, dated 27 February 2004, indicates the applicant was diagnosed with asthma, which existed prior to service (EPTS) without service aggravation, and that he was unfit because of physical disability. The IPEB stated the applicant’s condition was permanent and recommended he be discharged under provisions other than Title 10, USC, Chapter 61. On 4 March 2004, the applicant disagreed with the IPEB findings and demanded an FPEB. The FPEB findings and recommendation, dated 17 June 2004, diagnosed the applicant with asthma associated with seasonal allergies which existed prior to service without service aggravation. The FPEB recommended the applicant be discharged under other than Chapter 61, Title 10 USC (EPTS). The applicant disagreed with the FPEB findings and submitted a rebuttal on 25 June 2004. On 27 August 2004, SAFPC determined the applicant was physically unfit for continued military service and directed he receive a disability discharge under other than Chapter 61, Title 10, USC (EPTS). The applicant was discharged effective 22 October 2004 with an honorable characterization of service and with a narrative reason for separation of Disability, Existed Prior to Service. He served seven years, three months, and nine days on active duty. Following his discharge, the applicant received a 10 percent disability rating for asthma from the Department of Veterans Affairs (DVA). A DVA rating decision, dated 12 September 2007, indicates the applicant’s disability rating for Asthma, Service Connected, Gulf War Aggravated was upgraded to 30 percent. ________________________________________________________________ _ AIR FORCE EVALUATION: The BCMR Medical Consultant is of the opinion that no change in the applicant’s records is warranted. The BCMR Medical Consultant states that while the applicant’s asthmatic condition was identified while on active duty, there is ample evidence he had respiratory problems prior to military service that were not of sufficient severity to prompt the applicant or his parents to seek professional medical care. He used over the counter medications (inhalers) that appeared to help his condition. The applicant wrote in his letter of appeal “the fact is that I have never been officially tested, diagnosed, or treated for asthma until just recently.” Not seeking care and being unaware of the specific diagnosis does not prove that he never had the condition prior to service. The BCMR Medical Consultant is of the opinion that while the applicant’s condition worsened while on active duty, his condition represents the natural progression of the disease. Considering that his condition was given the lowest possible disability rating, no rating for any service aggravation seems appropriate in this case. The BCMR Medical Consultant states the evidence of record shows the applicant’s asthmatic condition was appropriately managed. It is the BCMR Medical Consultant’s opinion that action and disposition in this case are proper and equitable reflecting compliance with Air Force directives that implement the law. The BCMR Medical Consultant evaluation is at Exhibit C. ________________________________________________________________ _ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant’s counsel responded that the BCMR Medical Consultant’s advisory opinion is flawed. Counsel states that the fact his client used over the counter medications is not evidence of pre-service asthma. The greatest error by the BCMR Medical Consultant is illustrated by the following statement: “not seeking care and being unaware of the specific diagnosis does not prove that he never had the condition prior to service.” Counsel states the Air Force bears the burden to establish his client had asthma prior to his entry on active duty. His client has no duty to prove a negative – that he did not have asthma. The burden of proof is on the Air Force and the Air Force has failed in all respects to meet that burden. The BCMR Medical Consultant’s “opinion” is mere speculation, conjecture, and supposition. His client’s military records should be corrected to reflect he did not have asthma as a child. Any asthmatic condition was incurred while his client was on active duty. This is supported by the medical evidence and proper analysis under Air Force Instruction 36-3212. The Counsel’s rebuttal is at Exhibit E. ________________________________________________________________ _ 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 probable error or injustice. We took notice of the applicant's complete submission in judging the merits of the case. However, the applicant has provided no evidence which, in our opinion, successfully refutes the assessment of his case by the BCMR Medical Consultant. Therefore, we agree with the recommendation of the BCMR Medical Consultant and adopt his opinion as our findings in this case. In view of the above, we find no basis to favorably consider the applicant’s request. 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. ________________________________________________________________ _ 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. ________________________________________________________________ _ The following members of the Board considered this application in Executive Session on 24 January 2008, under the provisions of AFI 36-2603: The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2007-02455: Exhibit A. DD Form 149, dated 1 Aug 07, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, BCMR Medical Consultant, dtd 12 Oct 07. Exhibit D. Letter, SAF/MRBR, dated 17 Oct 07. Exhibit E. Counsel’s Rebuttal, dated 12 Nov 07.