RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS  sf z?: 

h-??? 

IN THE MATTER OF: 

DOCKET NUMBER:  97-02715 
COUNSEL : 
HEARING DESIRED:  NO 

APPLICANT REOUESTS THAT: 

~ 

~~ 

1. His  records  be  corrected  to  show  that  he  was  medically 
separated on 1 September 1997. 

2. He  be  presented  to  a  Physical Evaluation Board  (PEB) for a 
disability determination. 

3. He  receive payment  f o r   Aviator Continuation Pay  (ACP)  bonus 
previously recouped. 

APPLICANT CONTENDS THAT: 

He was unfit  for continued military  service at  the  time of  his 
separation and should have been processed through the Air Force 
Disability Evaluation System. 

The  applicant’s  counsel  states  that  the  applicant  was  never 
presented to a Medical Evaluation Board  (MEB) for his unfitting 
condition,  instead  he  was  found  medically  unfit  to  maintain 
flight  status  and  was  required  to  seek  voluntary  separation. 
Had  the  applicant  met  an  MEB,  found  unfit  and  medically 
separated  as  should  have  been  done,  he  would  have  received 
either separation pay or retirement and any recoupment of  bonus 
would have been waived. 

The applicant’s complete submission is attached at Exhibit A. 

STATEMENT OF FACTS: 

On  7  February  1988,  the  applicant  was  commissioned  a  second 
lieutenant and entered extended active duty. 

On  1  November  1996,  the  applicant  was  found  medically 
disqualified  for  flying  class  I1  duties  because  of  migraine 
headaches. 

On 
April 1997, the applicant requested separation from active 
duty by exception to policy due to his medical disqualification 
from flying. 

The  applicant  was  honorably  discharged  on  1  September  1997, 
under  the  provisions  of  AFI  36-3207  (Miscellaneous/General 
Reason).  He completed 9 years, 6 months, and 2 5   days of active 
service. 

AIR FORCE EVALUATION: 

The Chief, Medical  Consultant, BCMR, reviewed  this  application 
and states that the applicant was a pilot who developed migraine 
headaches which  were  diagnosed  in  September  1996  for which  he 
was  removed  from  flying  duties. 
Consideration  of  a  flying 
waiver  was  mentioned  if  he  remained  headache-free  off 
medications  for  one  year,  but  he  continued  to  have  some 
headaches as evidenced  in his  medical  records  and  from  a  note 
written by his wife who observed two of these 2-3 hour events at 
the end of June and early July 1997.  In the records available 
for review, a concise breakdown of  the applicant's options  was 
addressed to him on 4 April 1997 which presented the possibility 
of  a  separation  for  miscellaneous  reasons  under  exception  to 
policy  along  with  other  options  to  remain  on  active  duty  in 
other  than  flying  positions. 
This  letter  very  specifically 
spelled  out  that  a  separation for  miscellaneous  reasons  would 
not  be  a  medical  separation.  The  applicant  opted  for  the 
voluntary  separation  which  then  occurred  5  months  later  and 
which required recoupment of his unearned bonus moneys. 

The  Chief ,  Medical  Consultant ,  BCMR, states  that  the  applicant 
and his counsel feel that since the applicant has  the diagnosis 
of  migraine  headaches  that disqualified  him  for  flying that  he 
should have been  presented  to the disability  evaluation systew, 
for a medical discharge or retirement, citing the Department of 
Veterans Affairs  (DVA) VASRD as showing the diagnosis being  30% 
compensable for his alleged frequency and severity of headaches. 
However,  they  fail  to  recognize  that  migraines,  while 
disqualifying  him  from  flying  duty  are  not  disqualifying  for 
continued  military  duty  in  other  capacities  per  the  same 
authority unless they last  for several consecutive days and are 
unrelieved by  treatment, neither  criteria  of  which  are  met  by 
his particular headaches.  Having a non-unfitting condition, he 
was  not  eligible  for  consideration  under  the  disability 
evaluation system and had no right to a medical separation. 

The  Chief, Medical  Consultant, BCMR, notes  that  the  reason  the 
applicant  could  be  declared  fit  for  duty  by  the  Air  Force  and 
later be  considered for service-connected disability by  the DVA 
lies in understanding the differences between Title 10, USC, and 
Title 38, USC.  Title 10, USC, Chapter 61, is the federal statute 
that  charges the  Service Secretaries with maintaining a  fit  and 

2 

vital  force.  For  an  individual  to  be  unfit  there  must  be  a 
medical condition so severe that it prevents performance of work 
commensurate  with  rank  and  experience. 
As  noted  above,  the 
applicant did not have a disqualifying condition for other than 
flying duties.  Congress very wisely recognized that a person can 
acquire physical conditions which, although not unfitting at  the 
time of separation, may  later progress in severity and alter the 
individual's life style and  future employability.  With this in 
mind, Title 38, USC, which governs the DVA compensation system, 
was  written  to  allow  awarding  compensation for conditions  that 
are not unfitting for military service.  This is the reason why 
an  individual  can  be  found  fit  for  military  duty  and  later 
receive  a  compensation  rating  from  the  DVA  for  a  service- 
connected, but military non-unfitting condition.  Therefore, they 
recommend denial of the applicant's request 

A  complete  copy  of  the  Air  Force  evaluation  is  attached  at 
Exhibit C. 

The  Chief,  Physical  Disability  Division,  AFPC/DPPD,  reviewed 
this application and states that the medical aspects of the case 
are  fully  explained  by  the  Medical  Consultant  and  they  agree 
with the advisory.  On 1 November 1996, the applicant was found 
medically  disqualified  for  flying  duties  because  of  his 
headaches.  Had  the  applicant  been  referred  to  the  physical 
disability evaluation system at that time, the Informal Physical 
Evaluation  Board  (IPEB) would  have  recommended  his  return  to 
duty.  Based on medical evidence provided, his condition was not 
serious enough to render him unfit  for further military service 
under  the  provisions  of  disability  law  and  policy  and  his 
utilization  in  a  different  career  field  appeared  appropriate. 
The applicant has  not  submitted any documentation to show that 
he  was unfit  due  to a physical  disability under the provisions 
of  Title  10, USC  at  the  time  of  his  voluntary  discharge  from 
active duty.  Therefore, they recommend denial of  his request. 

A  complete  copy  of  the  Air  Force  evaluation  is  attached  at 
Exhibit D. 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

The applicant's  counsel reviewed  the Air  Force evaluations and 
states  that  the  Medical  Consultant's  view  that  migraines  must 
last  for  several  consecutive  days  and  are  unrelieved  by 
treatment  is simply not  the  law.  The  law  is  contained in DoD 
Directive  1332.18  and  DoD  Instruction  1332.38 which  indicates 
headaches,  migraine,  tension,  vascular,  cluster  types  -  when 
manifested  by  documented  frequent  incapacitating  attacks. 
Counsel  contends  the  Medical  Consultant  is  trying  to  define 
migraine  disability  at  the  50%  rating  standard  under  VA 
Diagnostic Code 8100, and completely ignores the fact that there 
are  other  lesser  unfitting  categories.  Furthermore, the  DoD 

Instruction 1339.39 defines prostrating as when the member must 
stop what  he  or  she  is  doing  and  seek  medical  attention, and 
that  the  number  of  prostrating  attacks  per  time  period  (day, 
week, month) should be  recorded by  a neurologist for diagnostic 
confirmation.  Nowhere is it written that the migraine must  last 
for  several  days  and  be  refractory  to  medication. 
The 
applicant’s records  are  replete  with  examples  of  prostrating 
migraines.  Furthermore, the applicant’s acknowledgment that  he 
was not being discharged medically  is a nonsequitur since those 
responsible  to  tell  him  that  he  had  a  right  to  a  medical 
discharge, failed to do so. 

The applicant’s complete response is attached at Exhibit F. 

THE BOARD CONCLUDES THAT: 

The applicant has exhausted all remedies provided by existing 

1. 
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.  After 
thoroughly  reviewing  the  evidence  of  record  and  noting  the 
applicant’s contentions, we are not persuaded that the applicant 
was  unfit  for  continued  military  service  at  the  time  of  his 
separation. 
The  applicant‘s  counsel  contends  the  applicant 
should have  been presented  to  a Medical  Evaluation Board  (MEB) 
based  on  his  unfitting  condition  (migraines).  We  disagree. 
Although  the  applicant‘s condition disqualified him  from flying 
duty, it  did  not  render him  unfit  for continued military  duty. 
To the contrary, the applicant could have continued military duty 
in other capacities.  Although  counsel contends the  applicant‘s 
migraines did not need to last for several days and be refractory 
to medication, they did need to be  so severe that  they rendered 
the applicant unfit  to perform  the  duties of  his  office, rank, 
grade or rating in accordance with DoD Directive 1332.18.  In the 
applicant’s case, he had one prostrating migraine attack in June 
1997 and one in July 1997; however, he  did not have prostrating 
migraine attacks averaging one in 2 months over the last several 
months.  As such, at the time of his separation, he did not meet 
the criteria for disability processing.  It appears the applicant 
believes the DVA‘s decision to award him a 30% disability rating 
for frequency and  severity  of  headaches, substantiates  that  he 
should  have  been  processed  through  the  Disability  Evaluation 
System  (DES)  prior  to  his  separation.  However,  we  note  that 
although  the  Air  Force  is  required  to  rate  disabilities  in 
accordance with the VA Schedule for Rating Disabilities, the DVA 
operates  under  a  totally  separate  system  with  a  different 
statutory basis.  In this respect, we note that the DVA rates for 
any  and  all  service  connected  conditions, to  the  degree  they 
interfere  with  future  employability,  without  consideration  of 

fitness.  Whereas  the Air  Force rates  a  member's disability  at 
the time of separation.  In the applicant's case, he did not have 
a  disqualifying  condition  for  other  than  flying  duties. 
Therefore, in the absence of evidence to the contrary, we find no 
compelling basis to recommend granting the relief sought in this 
application. 

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  issue(s) 
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  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. 

The following members of the Board considered this application in 
Executive Session on 20 August  1998, under the provisions of AFI 
36-2603: 

Mr. David W. Mulgrew, Panel Chair 
Mr. Jackson A. Hauslein, Member 
Mr. Terry A. Yonkers, Member 
Mr. Phillip E. Horton, Examiner  (without vote) 

The following documentary evidence was considered: 

Exhibit A.  DD Form 149, dated 6 Sep 97, w/atchs. 
Exhibit B.  Applicant's Master Personnel Records. 
Exhibit C.  Letter, BCMR Medical Consultant, dated 20 Nov 97. 
Exhibit D.  Letter, AFPC/DPPD, dated 5 Jan 98. 
Exhibit E.  Letter, SAF/MIBR, dated 18 Jan 98. 
Exhibit F.  Letter, Counsel, dated 18 Feb 98. 

, -. 

Panel Chair