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