RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: 01-02618
INDEX CODE: 108.01
COUNSEL: NONE
HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS THAT:
His Honorary Retired Reserve status be changed to a disability retirement
and his records be corrected to show he was awarded the Purple Heart Medal.
_________________________________________________________________
APPLICANT CONTENDS THAT:
His cancer was deemed to be service-connected on 24 August 1999, backdated
to October 1995 when he was a member in good standing at Homestead Air
Reserve Base. He should be upgraded to full retirement and awarded the
Purple Heart. His evidence includes a recent carcinogen study of the
Occupational Safety and Health Administration (OSHA) and his allegations of
mistakes in safety procedures that were either not enforced or followed and
which were required by law at the time of his exposure.
In support of his request, applicant provides documents associated with his
medical disqualification for worldwide duty, his Department of Veterans
Administration Rating Decision and his Honorary Retired Reserve Order.
The applicant’s complete submission, with attachments, is at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
Effective 2 April 1996, applicant was assigned to the Honorary Retired
Reserve Section because of physical disqualification for worldwide duty.
His assignment to the Honorary Retired Reserve Section was in the grade of
staff sergeant with a date of rank of 1 March 1995. He was credited with
11 years, 4 months and 21 days of satisfactory federal service. Records
indicate the appropriate Air Force Reserve Surgeon certified that the
applicant was physically disqualified for worldwide duty and therefore,
that he did not meet the requirements for retention based on a diagnosis of
small bowel cancer. A physical disqualification review board later
approved this action.
The relevant facts, extracted from the available records, are contained in
the letters prepared by the appropriate offices of the Air Force at
Exhibits D and E.
_________________________________________________________________
AIR FORCE EVALUATION:
The BCMR Medical Consultant recommends the application be denied. The
Medical Consultant states that there is no evidence supporting a direct
link between hydrazine exposure and development of cancer in human beings
although some cancers in laboratory animals have been observed from this
link. The Medical Consultant states that he learned from the medical
records that the applicant was seen for a profound anemia and weight loss
in August 1994, the workup that eventually revealed the bowel cancer. From
this assessment, the Medical Consultant states that it would appear that
the cancer had started more than 6 months before the hydrazine incident,
making the DVA decision somewhat suspect. The BCMR Medical Consultant’s
evaluation is at Exhibit C.
AFPC/DPPD recommends the application be denied. DPPD states that the
applicant’s claim that he developed cancer from the accidental hydrazine
spillage incident appears to be speculative on his part. DPPD states that
the DVA originally rated the applicant at 100 percent on 6 October 1995,
and the rating was later changed to zero (0) percent effective 1 November
1997. DPPD states that it appears that the applicant’s request for a
disability retirement is primarily supported on his disability rating from
the DVA. DPPD further states that under military disability laws and
policy, USAF disability boards can only rate unfitting conditions based
upon the individual’s medical status at the time of his or her evaluation;
in essence a snapshot of their condition at that time. The DVA, however,
is chartered to provide continual medical care for veterans once they leave
active duty, states DPPD, and the fact that the DVA awarded him a
disability rating of 100 percent and later reduced it to zero percent does
not entitle him to a military retirement or discharge. The DPPD evaluation
is at Exhibit D.
ARPC/DPP recommends the application be denied. DPP states that on 28 March
1996, the applicant requested an honorary retirement in lieu of
administrative discharge for physical disqualification. DPP states that as
of 1 April 1996, the applicant had completed 11 years, 11 months, and 21
days of satisfactory federal service. DPP further states that in order to
be transferred to the Retired Reserve, awaiting pay at age 60, a member
must complete a minimum of 20 years of satisfactory federal service;
therefore, the applicant is not eligible for transfer to the Retired
Reserve to await pay at age 60. The ARPC/DPP evaluation, with attachments,
is at Exhibit E.
________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
Applicant responds that based on the 8th carcinogen report the possibility
of a link between hydrazine and the development of cancer in human beings
changed from a level of 2A to 2B. Applicant states that this change makes
the language less ambiguous in interpretation that hydrazine has caused
Adeno Carcinoma in laboratory animals and was also determined by the rating
board of the DVA; thus, nullifying the BCMR Medical Consultant’s
evaluation. In closing, the applicant states he has proved that malice
and libel does exist.
Applicant’s letter, 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 error or injustice. We are not persuaded by the evidence
presented that the applicant’s transfer to the Honorary Retired Reserve by
reason of physical disqualification for worldwide duty was improper or
contrary to the provisions of the governing regulations, which implement
the law. The applicant points to the service-connection determination and
the disability assessment and rating he received from the Department of
Veterans Affairs (DVA) and the OSHA carcinogen report to support his claim.
The DVA originally rated his condition at 100 percent disabling in October
1995 then later decreased the compensable rating to 0 percent in November
1997. We note that, by law, the DVA is a separate Federal agency with a
different mission governed by different standards and its decisions are not
binding on this Board. We believe that the determination by the DVA is
insufficient to overcome the original finding by the Air Force. The DVA
finding that the applicant’s condition was incurred during or aggravated by
his service appears to be contravened by the available medical evidence and
sound medical principles, as noted by the Board’s Medical Consultant. Not
only has the applicant failed to provide compelling evidence that the
hydrazine spill actually caused his cancer, but there is compelling medical
evidence that his cancer predated the hydrazine spill. There is no
evidence that the applicant’s possible exposure to the hydrazine spill is
qualifying for the Purple Heart. The applicant’s request is not favorably
considered.
_________________________________________________________________
THE BOARD DETERMINES THAT:
The applicant be notified that the evidence presented did not demonstrate
the existence of 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 AFBCMR
Docket Number 01-02618 in Executive Session on 29 May 02, under the
provisions of AFI 36-2603:
Mr. Philip Sheuerman, Panel Chair
Mr. Billy C. Baxter, Member
Mr. James W. Russell III, Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 7 Aug 01, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, BCMR Medical Consultant, dated 26 Feb 02.
Exhibit D. Letter, AFPC/DPPD, dated 2 Apr 02.
Exhibit E. Letter, ARPC/DPP, dated 5 Feb 02 w/atchs.
Exhibit F. Letter, SAF/MRBR, dated 12 Apr 02.
Exhibit G. Letter, Applicant, dated 20 Apr 02 w/atchs.
PHILIP SHEUERMAN
Panel Chair
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