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
_________________________________________________________________
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.
_________________________________________________________________
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.
_________________________________________________________________
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).
_________________________________________________________________
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.
_________________________________________________________________
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.
_________________________________________________________________
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.
_________________________________________________________________
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 23 January 2002 under the provisions of AFI 36-
2603:
Mr. Thomas S. Markiewicz, Vice Chair
Mr. Jay H. Jordan, Member
Ms. Brenda L. Romine, 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.
THOMAS S. MARKIEWICZ
Vice Chair
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