RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBERS:  01-02186
		INDEX CODE 108.01 108.03 108.07
	 	COUNSEL:  None

	 	HEARING DESIRED:  No

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APPLICANT REQUESTS THAT:

His records reflect he was medically retired for tonsil and prostate cancer and that the prostate cancer was in the line of duty (LOD) as a result of armed conflict and/or instrumentality of war.

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APPLICANT CONTENDS THAT:

During his retirement physical, there was an indication he might have prostate cancer. Therefore, before he officially retired, there were follow-up exams done at the Tripler Army Medical Center (TAMC) in Hawaii. However, it wasn't until after he retired that the prostate cancer was confirmed. During this same timeframe, he was diagnosed with tonsil cancer and the treatment for the prostate cancer was put on hold pending the resolution of the tonsil cancer, since the latter was more critical.  Since all treatments for both conditions was ongoing at TAMC, it wasn't until after he retired that everything was confirmed. He filed a claim with the Department of Veterans Affairs (DVA) for these disabilities. The DVA determined that his prostate cancer is directly related to military service as a result of his exposure to Agent Orange in Vietnam. He believes this condition qualifies for categorization as in the LOD as a direct result of armed conflict. The DVA presumed the tonsil cancer to have been caused by military service. 

The applicant's complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

In 68 and 69, the applicant performed three short temporary duties (2 days, 37 days and 24 days) in Vietnam. He retired on 1 Oct 94 in the grade of chief master sergeant with 30 years and 6 days of active service. A memo dated 24 May 94 reflects by first indorsement that the applicant did not desire a medical examination in conjunction with his scheduled retirement.

The remaining relevant facts pertaining to this application, extracted from the applicant's military records (Exhibit B), are contained in the official documents provided in the applicant’s submission (Exhibit A) and in the letters prepared by the appropriate offices of the Air Force (Exhibits C and D). 
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AIR FORCE EVALUATION:

The AFBCMR Medical Consultant notes the records show a distinct likelihood of prostate cancer having been present at the time of the applicant's retirement as seen in the elevated prostate-specific antigens (PSAs) recorded. The tonsillar cancer was not evident on the examinations he had in Feb and Jul prior to his Oct 94 separation, but one might suspect its subclinical presence since it made its appearance so close to his retirement date.  However, even if both of these disorders were present at the time of retirement, neither of them had rendered him unfit for performance of duties. On the other hand, had either or both of these diagnoses been established prior to his retirement date, he would likely have been placed on medical hold for appropriate treatment and then on the Temporary Disability Retired List (TDRL) for a period of observation until recovered to the point of rating the diseases on their residual effects, as has the DVA.  As of 6 Jan 68, the DVA has rated him at 10% for the tonsil cancer residuals and 100% for the prostate residuals.  It is a tenuous assumption that the prostate cancer was related to the applicant's brief trips into and out of Vietnam, but the DVA ruled in his favor on this doubtful case. The DVA operates under a different set of laws and specifically addresses long term medical care, social support, and educational assistance. It would seem the DVA is the proper authority to continue to provide care, treatment and compensation for these conditions that were clearly not unfitting for service up to the date of retirement, but which became apparent soon after.  Denial is recommended.

A complete copy of the evaluation is at Exhibit C.

HQ AFPC/DPPD advises that the applicant's medical state just prior to his retirement for years of service is substantiated in a mandatory medical records review conducted on 29 May 94. Review provided no medical evidence at that time which would have required a retirement physical be conducted. Records also show that he refused a retirement physical prior to his discharge, an indication that he himself did not feel that he had any major medical problems.  DPPD explains the differences between the military disability system and the DVA.  Denial is recommended.

A complete copy of the evaluation is at Exhibit D.

HQ AFPC/JA indicates that the Court of Claims has determined that disability ratings by the DVA and the Armed Forces are made for different purposes. The two systems were designed to address two different situations. The applicant was not retired under the Air Force disability system because he was found fit to perform his duty. His military career was not cut short due to his medical condition--quite the contrary, he was able to complete 30 years of military service.  The fact that he may have had cancer while he was on active duty does not go unrecognized; the DVA has certified that his illness was service connected. As a result, he is entitled to compensation under the DVA disability program in addition to his regular Air Force retirement pay. The applicant was not entitled to an Air Force disability retirement, but is being justly compensated by the DVA disability program. Denial is recommended based on both the untimeliness of the case and its lack of merit.

A complete copy of the evaluation is at Exhibit E.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Due to a civil service reduction-in-force (RIF) action, he is seeking veterans' preference, which he doesn't have since he is a retired member of the Armed Forces. He was told that if his prostate cancer was determined to be in the LOD as a direct result of armed conflict or caused by an instrumentality of war, he would qualify.  He explains why his appeal to the Board is not untimely. He's not requesting compensation or treatment from the Air Force as the DVA is superbly taking care of his needs. However, he does want his military records to show he retired with prostate cancer that was caused as a direct result of armed conflict and also caused by an instrumentality of war.  This is necessary so that he may obtain veterans' preference for RIF purposes as defined by the rules governing Federal civil service.

A complete copy of applicant’s response, with attachments, is at Exhibit G.

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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 probable error or injustice. After a thorough review of the evidence of record and the applicant’s submission, we are not persuaded that he should be medically retired or his condition found in the LOD as a result of armed conflict and/or instrumentality of war. The applicant’s contentions are duly noted; however, we do not find these uncorroborated assertions, in and by themselves, sufficiently persuasive to override the rationale provided by the Air Force. The offices of primary responsibility have adequately addressed the applicant’s contentions and we agree with their opinions and recommendations. We therefore adopt the rationale expressed as the basis for our decision that the applicant has failed to sustain his burden of having suffered either an error or an injustice. In view of the above and absent persuasive evidence to the contrary, we conclude this appeal should be denied. 

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of probable 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 23 January 2002 under the provisions of AFI 36-2603:

			Vice Chair
			Member
			Member

The following documentary evidence was considered:

   Exhibit A. DD Form 149, dated 27 Jul 01, w/atchs.
   Exhibit B. Applicant's Master Personnel Records.
   Exhibit C. Letter, AFBCMR Medical Consultant, dated 18 Sep 01.
   Exhibit D. Letter, HQ AFPC/DPPD, dated 25 Oct 01.
   Exhibit E. Letter, HQ AFPC/JA, dated 28 Nov 01.
   Exhibit F. Letter, SAF/MRBR, dated 7 Dec 01.
   Exhibit G. Letter, Applicant, 31 Dec 01, w/atchs.