AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

AUG 3 13998 

IN THE MATTER OF: 

DOCKET NUMBER: 96-01447 

HEARING DESIRED:  Yes 

*

.

 

APPLICANT REQUESTS THAT: 

1.  Her  military  record  be  corrected  to  show  that  she  was 
retired  from  active  duty  by  reason  of  physical  disability  in 
either June 1993 or October 1995; or in the alternative, 

Her  records  reflect  that  she  was  neither  released  from 
active. duty  in  September  1995  nor  transferred  to  the  Standby 
Reserve in October 1995. 
2.  Her  pay  and  allowance  be  corrected  accordingly, with  the 
usual provision for offsets and counter-offsets. 

APPLICANT CONTENDS THAT: 

Under Title  10, USC Section 1201-02, military  reserve personnel 
who  incur or aggravate a disease while performing more  than  30 
days of  extended  active  duty  ( E m )  are  entitled  to  a  full  and 
fair  hearing  to  determine  whether  they  should  be  retired  by 
reason of disability.  Under this legislation, she is entitled to 
active duty retirement because of her breast cancer. 
In May  1992, she was  serving on  EAD.  While  on EAD,  and  as  a 
result of self examination during July, she noticed a lump in her 
breast  and  reported  to  sick  call.  She  left  active  duty  on 
14 August  and  returned  on  19  August  1992.  She  was  given  a 
mammogram  and  in  September 1992, after a biopsy, was  diagnosed 
with breast cancer.  She underwent a modified left mastectomy and 
given chemotherapy treatment for six months.  At  the  completion 
of  the course of  treatment she was  found fit  for full duty and 
released from active duty back to the Air Force Reserve. 
In May  1995, she returned to EAD. 
She was examined pursuant to 
the Air Force Reserve's normal five-year cycle, and her condition 
found to be  in remission.  Nonetheless, on 29 August  1995, she 
was  found medically  disqualified  for  continuing military  duty. 
She was released from active duty on 30 September 1995 and given 
orders on 6 October  1995 relieving her  from her  assignment  and 
transferring her to Standby Reserve status.  The orders recited 
that she was "being processed for medical reason.Il' 

. 

Counsel  contends  that  neither  in  1992  nor  in  1995  was  the 
applicant afforded a Medical Evaluation Board  (MEB) as provided 
in AFI  36-3212.  She was entitled to an MEB because she was, in 
each instance, on active duty for more  than 30 days.  An  agency 
is bound  by  its own regulations. She  is entitled  to disability 
retirement because she was on EAD both in 1993 and 1995. The only 
question is the date on which she should be  deemed to have been 
retired from active duty. If the Air Force's position is that her 
condition is disqualifying, that determination must be applied as 
of  the time  she was treated in 1993,  since she was on EAD  when 
her cancer was diagnosed. 
Applicant's complete submission is attached at Exhibit A. 

STATEMENT OF FACTS: 

According to a 7 April  1992 message from HQ USAF/REP, Reservists 
injured in the line of duty  (LOD) when on orders for more than 30 
days, will not be  involuntarily released from those orders until 
final disposition of  their case; L e . ,  return to duty or final 
results of medical board action. Therefore, these Reservists are 
entitled to full pay, allowances, and benefits provided by law or 
regulation to the same extent as a Regular component member. 
Applicant  was  on active duty  (over 30 days) during the periods 
26 May  92  through  14  August  1992,  and  19  August  1992  through 
11 June 1993. 

. 

She was initially treated on 31 July 1992 for a lump in her left 
breast which had  rapidly grown from her  initial discovery about 
two months ago. In September 1992,  a biopsy confirmed cancer of 
the  infiltrating  ductal  type.  She  underwent  a  lumpectomy  on 
28 October  1992,  and  a  modified  left  radical  mastectomy  on 
17 November 1992.  Chemotherapy continued from 8 December throuah 
22 May  1993.  Subsequent  to completion of  chemotherapy, she wgs 
found fit for full duty. 
An  LOD  determination  dated  5  October  1992  found  applicant's 
mammary carcinoma was in the LOD. The AF Form 348 also indicates 
that the applicant had been present for duty from 0800 19 August 
1992 through 1700 20 September 1992. 
The 
Naval  Hospital  Surgeon  requested  on  28  September 
1992  that  the  applicant  be  placed  on  medical  hold  status.  On 
25 May  1993,  he  certified  applicant  fit  for duty  and  requested 
she be released from medical hold status. 
On  20  September  1995,  as  a  result  of  a  routine  physical,  HQ 
ARPC/SGS medically disqualified applicant for continued military 
service  based  on  a  diagnosis  of  Metastatic  Inraductal  Breast 
Carcinoma. HQ ARPC/SGS  indicated that  she was  not  eligible  for 
disability processing under provisions of AFI  36-3212,  Physical 

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96-0 1447 

. 

~ 

Evaluation for Retention, Retirement and Separation. No Medical 
Evaluation Board  (MEB) was  initiated at  this time to determine 
her fitness for duty and AFRES  started administrative discharge 
action under the provisions of AFI 36-3209. 
Reserve Order JR-0806, dated  26  September 1995,  indicates that, 
effective  6  October  1995,  the  applicant  was  reassigned  to  HQ 
ARPC, Non-Affiliated Reserve Section  (NARS) .  This placed her in 
the Standby Reserve pending administrative discharge action, and 
denied her the opportunity to perform further military service. 

A  Notice of  Proposed Discharge, dated  17 October  1995,  from HQ 
ARPC/DPAD advised the applicant of her rights and options. 

In a letter dated 2 November 1995 to HQ ARPC/SG, applicant's area 
defense  counsel  (ADC)  contended  that  ARPC's  decision  to 
administratively discharge  her was  based  on a  Veterans Affairs 
(VA) rating which  incorrectly  stated  she  did  not  begin  active 
duty until  19  August  1992.  The ADC  asserted that  the applicant 
was on active duty for training from 26 May until 14 August 1992, 
and the cancer was removed in September 1992. The ADC argued that 
since  the  applicant  was  on  active  duty  in  excess  of  30  days 
during the timeframe the growth was discovered, she should have 
been processed through the procedures outlined in AFI 36-3212. 
HQ ARPC/SGS advised applicant's ADC on 7 November 1995  that the 
documentation submitted tended to support his position that the 
applicant  was  entitled  to  a  Medical  Evaluation  Board  (MEB). 
Further,  the  active  duty  Medical  Treatment  Facility  (MTF) is 
required to ensure  the  military  member  "meet an MEB  within  90 
calendar days  of  initial  diagnosis or  as  soon  as  the  medical 
condition has stabilized." As far as ARPC/SGS could determine, an 
LOD  determination was  not  made  and,  if  one  had  not  been  made 
prior to treatment, the applicant should file an appeal with the 
AFBCMR since an error appears to have occurred. 
On 17 January 1996,  the DVA rated the applicant's breast surgery 
as service-connected with a disability rating of 40%. The DVA had 
assigned a 100% rating from 15-18 August  1992,  and from 12 June 
1993, the date after release from active duty for training, until 
1 May 1994, 12 months after cessation of chemotherapy. 
Applicant's  retirement/retention year  28  February  1995  through 
27 February 1996 was a satisfactory year of service. 
On 10 September 1996,  ARPC/DPAD terminated discharge action and 
cleared  her  to  return  to  active  participating  status  in  the 
Reserve  as  in  Individual Mobilization Augmentee  (IMA) with  an 
assignment  limitation code  (ALC) of  rrC." This  ALC  is  used  to 
protect  members  from  being  assigned  to  an  environment without 
adequate medical  care for a possible  life-threatening condition 
and  to  prevent  the  assignment  of  non-worldwide  qualified 
personnel to overseas locations. 

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96-0 1447 

The  applicant  was  initially identified  as  tentatively eligible 
for consideration by the Reserve Brigadier General Qualification 
Board  (RBGQB),  which was scheduled to convene on 3 December 1996. 
However, on 18 October 1996, she was notified by HQ ARPC/DP that 
she was  ineligible for consideration because  she was not, among 
other things, in a Ready Reserve position. 
A s   of 24 February 1997, the applicant was still rated at 40% by 
the  DVA  for  modified  radical  mastectomy,  left  breast,  for 
intraductal carcinoma with lymph node matastases. 
By Reserve Order HB-00164 dated 10 March 1997, the applicant was 
reassigned from HQ ARPC, NARS, to HQ ARPC, Inactive Status List 
Reserve  Section  (ISLRS), in  Standby  Reserve  status, effective 
28 February  1997. The  order  indicates  that  the  reason  for the 
assignment  action  was  applicant's  inability  to  earn  required 
points for retention. 

AIR STAFF EVALUATION: 

The  Director, Health  Services,  Individu31 Reserve  Programs, HQ 
ARPC/SGS  evaluated  this  application.  The  author  indicates that 
the  applicant  maintains  she  should  have  had  an  MEB  before 
termination of  orders for active duty training. The  action was 
never  initiated.  AFI  36-3212  states  Reserve  members  are  not 
entitled to MEB processing. The LOD Determination in October 1992 
was not reviewed and approved by the proper appointing authority. 
Furthermore, the  issues of  Existed  Prior to Service  (EPTS) and 
Aggravated by Service were not addressed. Applicant contacted HQ 
ARPC in April 1995 for assistance with documentation to overturn 
the second opinion of the  [DVA] .  That was the first notice to HQ 
ARPC/SG that the medical conditions existed. HQ ARPC/SG evaluated 
the medical  documentation available concerning the diagnosis of 
Metastatic Breast Cancer in September 1995 and determined she was 
unfit for continuation in the Reserve program.  The documentation 
did show the condition to be  in a state of  remission; however, 
AFI  48-123, Atch  2, para A2.18a, identifies the diagnosis as a 
disqualifying  condition.  If  the  applicant  had  notified  this 
office  of  the  diagnosis  of  breast  cancer  when  it  was  first 
determined in September 1992, processing for discharge would have 
occurred  at  that  time.  Disapproval  of  this  request  is 
recommended.  She  received  fair  and  appropriate  medical 
consideration. If the Board disagrees with this recommendation, 
the 
medical 
retirement/discharge against the standards found in AFI 36-3212, 
and discharged for medical reasons with appropriate compensation. 
A  complete  copy  of  the  Air  Staff  evaluation  is  attached  at 
Exhibit C .  

evaluated 

appl i cant 

should 

be 

for 

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96-0 1447 

. 

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APPLICANT'S RESPONSE TO THE AIR STAFF EVALUATION: 
Counsel  points  out  that  the  evaluation  misstates  the  relief 
applicant requests.  He emphasizes that the applicant is entitled 
In  the 
to  be  retired  by  reason  of  disability  in  June  1 9 9 3 .  
alternative, she requests retirement in October 1 9 9 5 ,   or, in the 
alternative, that  she was  neither released  from active duty  in 
September 1 9 9 5   nor transferred to the Standby Reserve in October 
1 9 9 5 .  
Counsel states that applicant, contrary to the advisory opinion, 
was entitled to have been processed by an MEB because she was on 
active duty at  the time the lump in her breast was discovered. 
Whatever the legal rule may be for Reserve personnel who are not 
on active duty, that rule has no bearing on her case since she 
was  on  active  duty  at  the  pertinent  time.  It  is  not  the 
applicant's fault  that  the  favorable LOD  determination was  not 
reviewed by the proper appointing authority. Beyond this, nothing 
in the. advisory  opinion casts the  slightest  doubt  on  the  fact 
that her cancer was incurred in the LOD or suggests that any EPTS 
or  aggravation  issue  precludes  a  favorable  ruling.  It  is 
irrelevant  when  HQ  ARPC/SG  became  aware  of  the  applicant's 
medical condition. The question presented in this case is simply 
whether  the  applicant was  entitled  to be  retired  by  reason of 
disability  (cancer). 
If  she  had  breast  cancer  (which  is 
-  undisputed)  while  she  was  on  active  duty  (which  is  also 
undisputed), she is a clearly entitled to be retired by reason of 
disability as if she were a Regular officer. 
On  24  September  1 9 9 6 ,   counsel  provided  an  additional  input. 
Attached to his input is a memorandum for the applicant from HQ 
ARPC/DPAD  indicating  all  action  to  discharge  her  had  been 
terminated  and  that  she  was  cleared  to  return  to  active 
participation in  the  Reserve  in a  limited  capacity.  However, 
counsel  points  out  that  applicant  was  never  afforded  the 
requisite  medical  board  even  unto  this  day. 
The  original 
requests 
from  DPAD 
notwithstanding.  Counsel also states that if the Board for any 
reason denies her the physical disability retirement to which she 
is entitled, then it must  calculate the back pay and allowances 
she  would have received had she been permitted to perform drills 
during  the  period  from  the  time  she  was  dropped  from  active 
participation  until  such  time  as  she  is  restored  to  a  paid 
drilling position. 

remain  unchanged,  the  memorandum 

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Counsel  also  advised  that  his  client  has  been  notified  that 
because she is not in a Ready Reserve position, she is ineligible 
for  consideration  for  promotion  to  brigadier  general.  She  has 
been  reassigned to inactive Reserve status because she is unable 
to earn  the  points  required  for  retention. The  reason  she  is 
unable to earn the points  is because  the Air Force Reserve has 
made no effort to reinstate her to a position in which she could 
participate. These are further prejudices she is suffering. 

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96-0 1447 

Applicant's complete rebuttals are attached at Exhibit E. 

~ 

ADDITIONAL AIR FORCE EVALUATION: 

The Chief, Physical Disability Division, HQ AFPC/DPPD, provided 
an  additional  evaluation  of  this  appeal.  A  review  of  the 
applicant's records for the periods May  1993  through  September 
1995,  when  she performed  numerous  active  duty  tours, does  not 
contain  any  documentation  to  reflect  that  she  was  unable  to 
perform her assigned duties; L e .  ,  she was fit. The decision to 
conduct an MEB  is made by  the MTF providing health care to the 
member. In September 1995, when the applicant's fitness for duty 
was  first called  into question, she was  entitled  to disability 
processing through the USAF Disability Evaluation System. Based 
on the medical  records available, had  an MEB  been  conducted in 
September 1995 and had it been referred to the Informal Physical 
Evaluation Board  (PEB) ,  that board would  have  found  the member 
fit  and  returned  her  to  duty.  The  key  element  in  fitness 
determinations  is  whether  or  not  the  member  can  adequately 
perform  their military  duties. A  review of  her  record  clearly 
indicates outstanding duty performance throughout the periods in 
question.  The fact that the applicant received treatment for her 
medical  problem  and  the  DVA  granted  her  service-connected 
benefits  for residuals of  left  breast  surgery is  not  unusual. 
The reason why the applicant could be  found fit by the military 
and  subsequently  granted  a  disability  by  the  DVA  lies  in 
understanding  the  differences  between  Titles  10  and  38,  USC, 
which  the  author  proceeds  to  explain.  Nothing  in  her  records 
substantiates that -her medical  condition disqualified  her  from 
performing  her  assigned  duties.  The  author  defers  discussion 
regarding applicant's being compensated with retroactive pay and 
allowances for periods of  service in which  she was  denied  the 
opportunity to  serve  in the  Reserves  to  the  appropriate  staff 
agency.  [The AFBCMR  Medical  Consultant  indicated  h i s   concurrence 
w i t h   the  AFPC/DPPD  advisory  on 
l e t t e r   requesting 
additional  A i r  Force  comments. 3 
A  complete  copy  of  the  additional  Air  Force  evaluation  is 
attached at Exhibit F. 

the  AFBCMR 

The  Chief, Retirements  and  Separations Division, HQ  ARPC/DPAD, 
concurs with  the  advisory  prepared  by  HQ  AFPC/DPPD.  Discharge 
action against the applicant had been terminated on 10 September 
1996.  She  was  informed  she  was  cleared  to  return  to  active 
participating status, and given instructions on how to return to 
IMA  status.  An  Air  Force  Form  1288,  Application  for  Ready 
Reserve  Assignment  was  attached  for  her  convenience. ARPC  is 
unable  to  comment  on  why  the  applicant  did  not  apply  for  an 
active assignment. 

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96-0 1447 

A  complete  copy  of  the  additional  Air  Force  evaluation  is  at 
Exhibit G. 

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: 

Counsel  reviewed  the  additional  Air  Force  evaluations  and 
provided  two  responses. He  contends that  AFPC/DPPD  essentially 
confirms that  it  was  an error not  to  conduct  an MEB,  and  the 
failure  to have  done  so  cannot  simply be  shrugged  off  as  the 
advisory appears to do. He questions AFPC/DPPDIs assumption that 
the applicant would have been found fit and returned to duty. In 
his second response, he indicates that IIARPC is unable to comment 
on why  [the applicant] did not  apply  for an active assignment" 
last year when she was notified that she was cleared to return to 
active  participating  status  in  the  Air  Force  Reserve.  The 
applicant  has  been  submitted  for  Mobilization  Augmentee 
assignments  or  Category  B  assignments.  The  applicant  had 
volunteered for a Category B assignment. It is evident the latest 
opinion was not based on a correct understanding of the events. 
Counsel contends that the core of this case is not complicated. 
The applicant has been treated extremely unfairly and is entitled 
to the relief for which she applied. 
Counsel's complete responses are at Exhibit I. 

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THE BOARD CONCLUDES THAT: 

The applicant has exhausted all remedies provided by existing 

1. 
law or regulations. 

2.  The application was timely filed. 
3.  Sufficient  relevant  evidence  has  been  presented  to 
demonstrate  the  existence  of  probable  error  or  injustice  to 
warrant  granting  partial  relief.  The  applicant  provided 
alternative remedies and we shall discuss our conclusions on each 
request in turn in the following paragraphs. 
4.  The applicant's primary request was  to be medically retired 
from  active  duty  either  in  June  1993  or  October  1995.  In 
considering this request, we noted she probably should have been 
placed  before  an  MEB  through  the  USAF  Disability  Evaluation 
System  in  September  1995  when  she was  on  active  duty  and  her 
fitness was first called into question. However, both during this 
time and upon completion of her chemotherapy back  in 1993,  she 
apparently  was  able  to  perform  her  assigned  duties.  Indeed, 
review of  her  record  clearly  indicates outstanding performance 
throughout  the  periods  in  question.  Also,  in  September  1996, 
ARPC/DPAD terminated discharge action and cleared her to return 
to active participating status with an assignment limitation code 

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96-0 1447 

of  llc.ll The evidence of  record does not  appear to indicate her 
medical  condition disqualified her from performing her assigned 
duties, and the key element in fitness determinations is whether 
or not the member can adequately perform their military duties. 
Consequently, we find no compelling basis upon which to disagree 
with  AFPC/DPPDIs  assessment  that,  had  her  condition  been 
considered by an MEB/PEB in 1995, she would have been found fit 
and returned to duty.  Furthermore, the AFBCMR Medical Consultant 
concurred  with  AFPC/DPPD's  opinion.  Therefore, as  we  are  not 
persuaded that a medical retirement is in order, this requested 
remedy is denied. 
4.  The  applicant's alternative  remedy was  for  her  records  to 
reflect that she was not released from active duty in September 
1995 nor transferred to the Standby Reserve in October 1995.  She 
requested she be  awarded the back pay and  allowances she would 
have received had she been permitted to perform drills from the 
time she was dropped from active participation until such time as 
she isarestored to a paid drilling position. As discussed above, 
the applicant was found fit for duty and was cleared to return to 
active participating status as an IMA with a rlC1l assignment code 
in September 1996.  We believe the fair resolution to this case 
would  be  to  void  her  reassignment  to  HQ  ARPC,  Non-Affiliated 
Reserve Section (NARS) in Standby Reserve on 6 October 1995, void 
-  her  reassignment  to  the  Inactive  Status  Reserve  List  on 
28 February 1997,  and award her an additional  35  inactive duty 
points for the period 28 February 1996 through 27 February 1997, 
making that period a satisfactory year of service.  However, when 
she was cleared to return to active participating status in the 
Reserve  as  an  IMA  on  10 September  1996,  we  believe  from  that 
point  on  it  was  the  applicant's  responsibility  to  take  such 
action  as  necessary  to  obtain  points  and  pay.  We  therefore 
recommend her records be corrected to the extent indicated below. 

THE BOARD RECOMMENDS THAT: 
The pertinent military records of the Department of the Air Force 
relating to APPLICANT, be corrected to show that: 

a.  The  Reserve  Order  -, 

dated  26  September  1995, 
assigning  applicant  to  the  Non-Affiliated  Reserve  Section 
effective  6  October  1995,  be  declared  void  and  she  remained 
assigned  to  her  Individual  Mobilization  Augmentee  position  of 
9 6 3 IFlZM/MT . 

b.  She was  assigned  to  the  Non-Affiliated  Reserve  Section 

effective 10 September 1996. 

c.  The  Reserve  Order 

dated  10  March  1997, 
assigning applicant to the  Inactive Status List Reserve Section 
effective 28 February 1997, be declared void and removed from her 
records. 

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96-0 1447 

d.  She was  credited with  3 5   unpaid  inactive  duty  training 
points  and  15 membership points during the retirement/retention 
year 2 8   February 1 9 9 6   through 2 7   February 1 9 9 7 ,   resulting in 5 0  
total  points;  and  that  the  period  2 8   February  1 9 9 6   through 
2 7   February  1997 is a year of  satisfactory Federal Service for 
retirement. 

e.  She  be  evaluated  for  eligibility  for  possible 
consideration  by  the  Reserve  Brigadier  General  Qualification 
Board, which  convened  on  3 - 5   December  1 9 9 6 ,   to  determine  her 
potential for assignment to Reserve General Officer positions. 

The following members of the Board considered this application in 
Executive Session on 2 0   January 1 9 9 8 ,   under the provisions of AFI 
3 6 - 2 6 0 3 :  

Mr. Vaughn E. Schlunz, Panel Chair 
Mr. Gregory H. Petkoff, Member 
Dr. Gerald B. Kauvar, Member 

All  members voted  to correct the records, as recommended.  The 
following documentary evidence was considered: 

Exhibit A .   DD Form 1 4 9 ,   dated 2 2   May 96,  w/atchs. 
Exhibit B.  Applicant's Master Personnel Records. 
Exhibit C.  Letter, HQ ARPC/SGS, dated 15 Jul 9 6 .  
Exhibit D.  Letter, AFBCMR, dated 5  Aug 9 6 .  
Exhibit E.  Letters, Counsel, dated 5  &  2 4   Sep 9 6   w/atch, 
Exhibit F.  Letter, HQ AFPC/DPPD, dated 19 Jun 9 7 .  
Exhibit G.  Letter, HQ ARPC/DPAD, dated 2  Oct 97,  w/atchs. 
Exhibit H.  Letters, AFBCMR, dated 30 June 9 7   and 23  Oct 9 7 .  
Exhibit I.  Letters, Counsel, dated 2 5   Jul 9 7   and 2 9   Oct 9 7 .  

4 Nov 96  w/atch, and 1 8   Mar 9 7   w/atch. 

Panel- Chair 

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96-0 1447 

DEPARTMENT OF THE AIR FORCE 

WASHINGTON, DC 

AUG 3 11998 

Office of the Assistant Secretary 
AFBCMR 96-01447 

MEMORANDUM FOR THE CHIEF OF STAFF 

Having received and considered the recommendation of the Air Force Board for Correction 
of Military Records and under the authority of Section 1552, Title 10, United States Code (70A 
Stat 116), it is directed that: 

ary records of the Department of the Air Force relating to 
e corrected to show that: 

a.  The Reserve Ord 
dated 26 September 1995, assigning applicant to the 
Non-Affiliated Reserve Secti 
6 October 1995, be, and hereby is, declared void and 
she remained assigned to her Individual Mobilization Augmentee position of 963IF 1 ZM/MT. 

b.  She was assigned to the Non-Affiliated Reserve Section effective 10 September 

1996. 

c.  The Reserve Order 

dated 10 March 1997, assigning applicant to the 

- 

Inactive Status List Reserve Section effective 28 February 1997, be, and hereby is, declared void 
and removed fiom her records. 

d.  She was credited with 35 unpaid inactive duty training points and 15 membership 

points during the retirementhetention year 28 February 1996 through 27 February 1997, resulting 
in 50 total points; and that the period 28 February 1996 through 27 February 1997 is a year of 
satisfactory Federal Service for retirement. 

e.  She be evaluated for eligibility for possible consideration by the Reserve Brigadier 

General Qualification Board, which convened on 3-5 December 1996, to determine her potential 
for assignment to Reserve General Officer positions.