RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2007-03907
		INDEX CODE:  108.00
		COUNSEL:  XXXXXXXXXX
		HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

His honorable discharge be changed to a disability discharge.

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APPLICANT CONTENDS THAT:

Multiple medical doctors have attributed his disqualifying medical condition (Reactive Airway Disease) as being connected with occupational exposure to a cleaning solvent used in the wheel and tire shop to clean wheel bearings and landing gear components.  Proper hygiene work practices of minimizing fumes in the work place were not adhered to during use of this chemical.  No Material Safety Data Sheet (MSDS) was on file for the chemical being used as it was believed a different product was in use.  Without any means of exchanging contaminated air in the work place with fresh air, lingering fumes would remain in the work area until they slowly evaporated.  This would significantly increase the duration of exposure.

In support of his request, the applicant provided a personal statement, statements from several physicians, information pertaining to the MSDS and the chemical used, and witness statements.

His complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

Prior to applicant’s enlistment in the Air Force Reserve (AFRes) he served in the Marine Corps Reserve.  On 1 June 2007, applicant was honorably discharged from the AFRes for physical disqualification.

The remaining relevant facts pertaining to this application, extracted from the applicant’s military personnel records, are contained in the letter prepared by the appropriate office of the Air Force at Exhibit C.

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AIR FORCE EVALUATION:

AFRC/SGP recommends denial.  SGP states the applicant was identified with a potentially disqualifying medical condition, exercise induced asthma, during his annual preventive health assessment (PHA) conducted by his supporting reserve medical unit (RMU) on 19 January 2007.  Since his medical condition was identified outside a period of military service and it appeared there was no service connection, his RMU prepared a non-duty related worldwide duty package for submission to HQ AFRC/SGP IAW AFI 48-123, Volume 2.  As part of the processing of this package, he was briefed and signed a statement of understanding of this medical evaluation process.  This included a statement that he was entitled to have his case submitted to the Physical Evaluation Board (PEB) for a “fitness only” determination should HQ AFRC/SGP medically disqualify him for his non-duty related medical condition.  He elected not to have his case submitted to a PEB and upon review by HQ AFRC/SGP on 6 March 2007, he was deemed medically disqualified and his package was submitted for involuntary separation without review by a PEB.

In April 2007, the applicant expressed concern to Bioenvironmental Engineering Services (BES) over the change to the chemical NEW II in his shop from the previous chemical, Breakthrough.  He noted that the MSDS for the new chemical indicated respiratory protection should be used depending on the airborne concentration.  BES briefed him that a workshop evaluation would be conducted and that not all MSDS listed precautions are needed due to differences in work practices from place to place.  The BES investigation revealed that all required personal protective equipment, parts cleaning procedures and controls were adequate and in place correctly.  The switch to NEW II was coordinated appropriately and potential exposures were appropriately evaluated by BES, the Occupational Health Working Group doctors, and all appropriate measures were in place to reduce occupational exposures well below accepted standards.  The NEW II MSDS does in fact note that respiratory protection may be required depending on concentration levels and ventilation if working with the product in enclosed areas and/or in elevated temperatures.  However, the tasks performed with this chemical were very infrequent, of short duration and the levels were demonstrated to be well below accepted exposure concentrations.  For this reason respiratory protection was not required nor recommended for the work place.  Furthermore, additional ventilation was not deemed necessary because worst case sample results were 3% of the Occupational Safety and Health Administration (OSHA) permissible exposure limit (PEL) for the cleaning solvent.

On 13 June 2007, he filed a complaint with OSHA.  OSHA inspectors arrived on 20 June 2007 and conducted an assessment of the shop.  The findings of this investigation confirmed the findings of the previous shop assessment and agreed that no respiratory protection was needed and adequate administrative engineering controls existed for controlling vapors.  Based on the review conducted by BES and OSHA, no federal hazard communication (HAZCOM) violations exist for the change out from Breakthrough to NEW II.

ARC members are entitled to disability evaluation for service connected conditions only IAW DODI 1241.2 and 1332.38.  The process for establishing whether a reserve member’s medical condition is service connected is outlined in AFI 36-2910, Line of Duty (Misconduct) Determination (LOD).  He was not entitled to an LOD determination based on the fact he was not in a military status when the condition was identified and no potential service connection existed.  There is no evidence military service caused or permanently aggravated his condition.  He was appropriately processed IAW with all applicable instructions, regulations and policies as an ARC member through the non-duty related world-wide duty evaluation process for a reactive airway disease.  Numerous evaluations by BES and OSHA were conducted of his workshop in which he spent most of his time as a civilian employee, Air Reserve Technician (ART), and limited time in a military status.  No LOD was required, therefore processing through the DES for military entitlements was not required.

AFRC/SGP’s complete evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant responded to the evaluation and states he was not granted due process during the discharge process.  Being diagnosed with exercise-induced asthma does not rule out the possibility of the disease stemming from exposure to a previous irritant, such as fumes from chemicals in the workplace.

He was informed by the military attorney appointed to his case that a PEB is solely for the purpose of determining fitness for duty or fitness only.  He was not contesting the fact that he was physically unfit for duty.  The PEB had no bearing on whether or not his case was service-connected.  The fact that he waived the PEB for this matter is irrelevant.  What is relevant is U.S.C. 10, 1214 which states “No member of the armed forces may be retired or separated for physical disability without a full and fair hearing if he demands it.”  He requested this new and relevant information be investigated and considered well before his separation date of 1 June 2007.  Since the unit gave AFRC inaccurate information and depicted a much healthier working environment than what actually existed prior to implementing the ventilation controls, AFRC deemed that no evidence of a service-connection existed based on false information.  He believes he did not receive a full and fair hearing.

AFI 36-2910, paragraph 1.4.2.1 states that members of the ARC who incur or aggravate an injury, illness or disease while serving on active military status may be subject to an LOD.  He believes he submitted sufficient documentation which meets this requirement.  He was exposed to a chemical which MSDS states “may aggravate respiratory diseases” without proper ventilation, while serving on active military status during unit training assemblies and annual tours.  Multiple medical doctors have directly and indirectly connected this exposure to his condition.

The 301st Maintenance Group wheel and tire shop violated Federal regulations by not posting the correct MSDS upon switching chemicals from one product to another.  Not reviewing the proper MSDS resulted in the unit failing to provide adequate ventilation to control fumes in the workplace in accordance with the manufacturer’s recommendations, and OSHA standard 1910.134(a)(1) concerning the prevention of occupational diseases caused by breathing harmful fumes in the workplace.  The unit made no attempt to minimize fumes in the workplace prior to April 2007.  Notarized signed statements from fellow airmen who also work in the wheel and tire shop confirm these facts.  Even if the concentration of fumes were below the allowable exposure limits, these limits would not apply to asthmatic individuals, and are irrelevant in determining whether or not his condition was aggravated by this exposure.  Medical documentation suggests that this exposure contributed in causing or aggravating his condition.  He was exposed to these fumes without the manufacturer’s suggested ventilation controls.

His disqualifying medical condition was caused or aggravated by exposure to respiratory irritants during periods of active military status that he was denied an LOD determination prior to military separation based on false information.

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

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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 timely filed.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of an error or an injustice.  After a thorough review of the evidence of record along with the applicant's submission, we find no evidence of an error within his discharge processing and are not persuaded by his assertions that he has been the victim of an injustice.  We are not persuaded by the evidence presented that the applicant was denied rights to which he was entitled or that the appropriate standards were not applied in this case.  His contentions regarding the chemicals used in his work area are duly noted; however, having found no conclusive evidence supporting his argument that his condition was aggravated by exposure to chemicals in his work area, his argument appears to be purely speculative.  In our opinion, the Air Force office of primary responsibility has adequately addressed his contentions and therefore, we adopt its rationale as the basis for our conclusion that the applicant failed to sustain his burden of proof of the existence of either an error or injustice in this case.  Therefore, in the absence of persuasive evidence to the contrary, 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 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 AFBCMR Docket Number BC-2007-03907 in Executive Session on 27 March 2008, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 22 October 2007, w/atchs.
   Exhibit B.  Applicant's Available Master Personnel Record.
   Exhibit C.  Letter, AFRC/SGP, dated 30 January 2008.
   Exhibit D.  Letter, SAF/MRBR, dated 8 February 2008.
   Exhibit E.  Letter, Applicant, dated 3 March 2008, w/atchs.