RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: 00-02223
COUNSEL: NONE
HEARING DESIRED: NO
APPLICANT REQUESTS THAT:
His records be corrected to show that he was permanently retired by reason
of physical disability, rather than retired for length of service.
APPLICANT CONTENDS THAT:
At the time of his retirement, the Air Force should have diagnosed him with
diverticulitis.
The applicant states that diverticulitis is a debilitating disease that can
be life threatening in its acute stages. Without medications and treatment
it can lead to death. While on active duty he had five serious episodes of
diverticulitis. However, his condition was never diagnosed by the Air
Force. As a result, calamitous injury was done to him when his condition
was not diagnosed and he was not given proper care, medications, and
instructions regarding the necessary changes in his diet and lifestyle to
control the condition. Based on the Air Force’s misdiagnosis of his
condition, in 1985, the Veterans Administration (VA) incorrectly determined
his Predominant Disability Picture (PDP) was hiatal hernia first, rather
than diverticulitis with colon resection and irritable bowel syndrome.
In support of his appeal, applicant submits copies of his medical records,
literature regarding his conditions, and VA and Department of Veterans
Affairs (DVA) rating decisions.
The applicant’s complete submission is attached at Exhibit A.
STATEMENT OF FACTS:
On 6 January 1965, the applicant reenlisted in the Regular Air Force for a
period of 3 years.
The applicant underwent a retirement physical on 26 September 1967 and was
found qualified for service or retirement.
Based on applicant’s complaint of stomach pain, fluoroscopic and film
studies of his upper gastrointestinal tract were taken on 10 October 1967
which revealed a hiatal hernia.
On 8 November 1967, the applicant underwent another retirement physical and
was again found qualified for service or retirement.
A Medical Evaluation Board (MEB) convened on 12 January 1968 and
recommended the applicant be returned to duty based on the diagnosis of
hiatus hernia, symptomatic, with probable reflux.
The hospital commander approved the recommendation of the MEB on 18 January
1968.
On 22 January 1968, the Surgeon General’s office approved the applicant for
retirement.
On 1 June 1968, the applicant was voluntarily retired for length of service
in the grade of chief master sergeant (E-9). He completed 24 years and 17
days of active service.
On 9 December 1968, the Veterans Affairs (VA) awarded the applicant a
combined service-connected disability rating of 10% for a hiatal hernia,
Veterans Administration Schedule for Rating Disabilities (VASRD) 7346. The
VA also found the applicant suffered from hemorrhoids; however, they
assigned a 0% rating for the condition.
On 3 July 1985, VA awarded the applicant a combined service-connected
disability rating of 30% for a hiatal hernia (10%) and diverticulitis,
colon resection (20%), VASRD 7327-7329. The VA also found the applicant
suffered from osteoarthritis, right shoulder, hemorrhoids and refractive
error (congenital or developmental abnormality); however, they assigned
these conditions a 0% rating.
AIR FORCE EVALUATIONS:
The BCMR Medical Consultant reviewed the application and states that the
reason why the applicant could be declared fit for duty or retirement by
the Air Force and later granted a service-connected disability by the DVA
lies in understanding the differences between Title 10, USC and Title 38,
USC. Title 10 USC is the federal statute that charges the service
secretaries with maintaining a fit and vital force. For an individual to
be considered unfit for military service, there must be a medical condition
so severe that it prevents performance of any work commensurate with rank
and experience. Once this determination is made, namely that the
individual is unfit, disability rating percentage is based upon the
member’s condition at the time of permanent disposition, and not upon
possible future events. As seen in the applicant’s records, he was not
incapacitated for duty by virtue of his GI symptoms, and, therefore, fit.
Congress, very wisely, recognized that a person can acquire physical
conditions that, although not unfitting at the time of separation, may
later progress in severity and alter the individual’s lifestyle and future
employability. With this in mind, Title 38, USC which governs the DVA
compensation system was written to allow awarding compensation ratings for
conditions that are not unfitting for military service. This is the reason
why an individual can be considered fit for duty, and yet soon thereafter
receive a compensation rating from the DVA for a service-connected, but
militarily non-unfitting condition. Therefore, the Medical Consultant for
the AFBCMR recommends the application be denied.
A complete copy of the evaluation is at Exhibit C.
The Chief, Special Actions/BCMR Advisories, AFPC/DPPD, reviewed the
application and states that there are no errors or irregularities that
would justify a change to the applicant’s records. The applicant has not
provided any evidence that he was unfit due to a physical disability at the
time of his voluntary retirement. Prior his voluntary retirement, he was
medically approved for retirement by the USAF Surgeon General’s office. In
addition, his performance reports indicate nothing but outstanding comments
concerning his job performance. They are unable to find any evidence that
he was incapable of performing his military duties right up until the time
of his voluntary retirement. Under military disability laws and policy,
USAF disability boards can only rate medical conditions based upon the
member’s situation at the time of his or her evaluation. Service-connected
medical conditions incurred, but not found while on active duty, are not
compensated. However, the DVA may compensate prior service members for
these conditions. Therefore, they recommend denial of his request.
A complete copy of the evaluation is at Exhibit D.
APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:
The applicant reviewed the evaluation and states that since the MEB failed
to recognize his five episodes of diverticulitis, the issue of an MEB is
moot. While he was able to perform his duties until his retirement, he was
not given medical treatments, bed-rest or medicines to preclude his later
incapacitation in civilian life from August 1970 to his colon resection in
1974 and between his civilian employment (June 1968 to 1974). Concerning
his timely filing, the applicant states that he did not discover the error
until 1997 when he began a diligent review of his entire medical history.
In addition, he began his appeal in the United States Court of Appeals for
Veterans Claims and did not receive a final decision until August 2000.
After he received the decision, he filed his application. As such, he
believes he has filed a timely request.
Applicant’s complete response is at Exhibit F.
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 warranting the applicant's
retirement by reason of physical disability. The applicant contends that
at the time of his retirement for length of service, he should have been
diagnosed with diverticulitis. However, we find insufficient evidence that
he was unfit for continued military service at the time of his voluntary
retirement. To the contrary, prior to his voluntary retirement, he was
medically approved for retirement by the USAF Surgeon General’s office and
his performance reports indicate outstanding performance. It appears the
applicant believes the DVA's decision to award him a combined compensable
disability rating of 30% substantiates that he should have been medically
retired by the Air Force. 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. Therefore, in
the absence of evidence to the contrary, we find no compelling basis to
recommend granting the relief sought in this application.
_________________________________________________________________
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 13 February 2001, under the provisions of AFI 36-2603:
Mr. Thomas S. Markiewicz, Vice Chair
Ms. Carolyn J. Watkins, Member
Mr. E. David Hoard, Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 14 Aug 00, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, BCMR Medical Consultant, dated 26 Oct 00.
Exhibit D. Letter, AFPC/DPPD, dated 16 Nov 00.
Exhibit E. Letter, SAF/MIBR, dated 1 Dec 00.
Exhibit F. Letter, Applicant, dated 26 Dec 00.
THOMAS S. MARKIEWICZ
Vice Chair
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