RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2002-02680
            INDEX CODE:  108.00
      XXXXXXXXXXXXXXXXXXXX   COUNSEL:  NONE

      XXXXXXXXXXXXXXXXX      HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His retirement for years of service be changed to  retirement  for  physical
disability.

_________________________________________________________________

APPLICANT CONTENDS THAT:

In the last several years of his active military service, medical  personnel
made grave errors in diagnosing his physical condition  and  mishandled  the
administrative process of  his  case  that  resulted  in  disqualifying  and
sometimes life-threatening ailments  being  misdiagnosed  and  not  treated.
His submission of new evidence provides conclusive proof that  an  injustice
was perpetrated against him.

In support of his application, he provided a personal statement  and  copies
of military medical records.   The  applicant’s  complete  submission,  with
attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

On 12 December 1943, the applicant enlisted in the Army  Air  Corps  Reserve
in the rank of private (E-1) at the age of  20.   He  was  discharged  on  7
September 1944 to accept a commission in the Army  Air  Corps  as  a  second
lieutenant.  He was appointed a second lieutenant, Reserve of the Air  Force
on 9 November 1945.  The applicant was honorably released from  active  duty
on 28 November 1945  due  to  demobilization.   The  applicant  returned  to
active duty as an Air Force second lieutenant on 14 January  1948.   He  was
progressively promoted to the grade of captain effective and with a date  of
rank of 15 December 1951.  On 6  March  1958,  the  applicant  resigned  his
Reserve commission and accepted a commission in the Regular Air  Force.   He
was progressively promoted to the permanent grade of colonel  effective  and
with the date of rank of 1 August 1970.

On 30 November 1976,  the  applicant  was  relieved  from  active  duty  and
retired under the provisions of AFR 35-7, mandatory  retirement  for  length
of service, effective 1 December 1976.  He was credited  with  31  years,  6
months and 11 days of active duty service and 33  years,  11  months  and  9
days of service for pay.

On 24 October 1979, the AFBCMR  considered  and  denied  a  request  by  the
applicant to change his retirement for years  of  service  to  a  disability
retirement.  For an accounting of the facts  and  circumstances  surrounding
the applicant’s service, and, the Board’s consideration of the  appeal,  see
the Record of Proceedings at Exhibit C.

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AIR FORCE EVALUATION:

The BCMR Medical Consultant  is  of  the  opinion  that  no  change  in  the
applicant’s records is warranted.  After summarizing the information in  the
applicant’s military medical and DVA records  the  BCMR  Medical  Consultant
states that regulations concerning  retirement  (AFM  35-7,  Paragraph  2-8)
stipulate “A fully executed order for retirement, if regular and  valid,  is
final and may not be reopened, revoked, or amended in the absence of  fraud,
manifest error, mathematical miscalculation, mistake of law, or  substantial
new evidence.  Any action to cancel  the  retirement  or  revoke  the  order
retiring the member is legally ineffective.  The fact that a member  retired
for reasons other than disability and may also be qualified  for  disability
retirement, does not in any way affect the validity  of  the  non-disability
retirement.  Such a retirement cannot be set  aside.   The  existence  of  a
disability that qualifies a member for disability retirement  cannot  change
the fact that he or she performed the  requisite  service  or  attained  the
eligible age qualifying him or her for non-disability retirement.”  AFM  35-
4 Physical Evaluation for Retention, Retirement, and Separation and AFM 160-
1 outline a provision for retention of officers beyond their effective  date
of separation or retirement if  they  are  being  processed  for  disability
(i.e. undergoing medical evaluation board and physical  evaluation  boards),
or are in the process  of  being  evaluated  and  treated  for  a  disabling
condition.  Further, retention is directed to  continue  until  the  optimum
medical benefits of treatment have been realized.   The  regulation  clearly
states that an officer “will  not  be  retained  for  completion  of  purely
elective surgery or treatment of non-disabling conditions.   Once  a  member
has been medically cleared for retirement, medical  clearance  will  not  be
withdrawn for medical or  surgical  treatment,  of  or  any  hospitalization
associated with those conditions that ordinarily  would  not  be  considered
disqualifying for military service and warrant disability processing.   Only
conditions  fully  verified  through  coordination  between   the   military
treatment facility, the Major Command, and Medical Standards at  AFMPC  (now
AFPC) as warranted would result in approval of delay.  All  others  will  be
retired as scheduled.”

The BCMR Medical Consultant states that the applicant was medically  cleared
for retirement on 17 March 1976, and received his retirement  orders  on  16
April 1976.  At this time, only a condition that clearly  and  significantly
disabled him from performing his administrative job would have been  grounds
for  revoking  his  retirement  orders  and  processing  him   through   the
disability retirement system.  The applicant’s condition did not render  him
unfit to perform the duties of his administrative position.  It is the  BCMR
Medical Consultant’s opinion that had the Medical Standards Branch at  AFMPC
received  a  request  for  medical  hold  for  the  applicant’s   disability
processing, it is certain that the request would have been  denied  and  the
applicant would have been allowed to retire as scheduled.   By  current  Air
Force Instruction, the applicant would have been presumed  fit  and  allowed
to retire for length of service.  Action and disposition in  this  case  are
proper and equitable reflecting compliance with Air  Force  directives  that
implement the law.  The BCMR Medical Consultant’s evaluation is  at  Exhibit
D.

AFPC/DPPD recommends denial of the member’s request.  It is  DPPD’s  opinion
that the applicant’s medical records failed to document or justify  that  an
error or injustice occurred at the time  of  his  mandatory  retirement  for
maximum years of service under the provisions of AFM 35-7.   DPPD  states  a
review of the applicant’s service record does not show he was ever  referred
through the Air Force disability evaluation system (DES).  The  decision  to
process a member through  the  military  DES  is  determined  by  a  Medical
Evaluation Board (MEB) when he or she is determined  medically  disqualified
for military service.  Although  the  applicant’s  records  reflect  he  was
treated for various medical conditions throughout his military career,  none
of these conditions were ever considered serious or grave enough to  warrant
that an MEB be initiated.  On 17 March 1976, just  prior  to  his  mandatory
retirement,  the  applicant   received   a   combination   flying/retirement
physical, which found him fit for retirement  and  worldwide  service.   The
fact that a member has a medical condition does not automatically  mean  the
condition  is  unfitting  for  the  rigors  of  military  service.   To   be
unfitting, the medical condition must be such that it  by  itself  precludes
the member from fulfilling the purpose for which he or she is employed.

DPPD states that veterans who acquire service-connected  medical  conditions
while on active duty and who are  subsequently  discharged  or  retired  are
eligible for  treatment  and  compensation  by  the  Department  of  Veteran
Affairs (DVA).  The DVA is chartered to provide continual  medical  care  to
veterans once they depart active duty.  Under title 38,  USC,  the  DVA  may
increase or decrease a member’s medical  condition  throughout  his  or  her
lifespan.  DPPD wholeheartedly agrees with  the  BCMR  Medical  Consultant’s
evaluation.  The DPPD evaluation is at Exhibit E.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant disagrees with the Air Force evaluations that  his  ailments
did not render him unfit to  perform  the  duties  of  his  administrative
position.  The applicant claims he was absent  approximately  52%  of  the
time from March 1976 to December 1976 due to his  physical  decline.   The
applicant submits statements from two officers he was assigned with during
the March - December 1976 timeframe testifying to the applicant’s  medical
problems and absence from work.  The applicant also submits a  summary  of
his  ailments  supported  with  medical  documentation.   The  applicant’s
rebuttal 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 an error or injustice.   We  took  notice  of  the  applicant's
complete submission in judging the merits of the case and do not  find  that
it supports a determination that the applicant was improperly released  from
active duty and retired for length of serve in 1976.  In order for a  member
to be retired  by  reason  of  physical  disability,  by  law,  it  must  be
established that the member is unfit to perform the duties  of  his  or  her
office and grade in such a manner as to reasonably fulfill  the  purpose  of
their employment on active duty.  Neither does the  record  reveal  nor  has
the applicant provided any evidence that would lead us to  believe  that  he
was physically unfit within the meaning of the governing  regulation,  which
implements the law.  Therefore, we  agree  with  the  opinion  of  the  BCMR
Medical Consultant that action and disposition in this case were proper  and
equitable reflecting compliance with Air  Force  directives  that  implement
the law.  In the absence of evidence to the contrary, we find no  compelling
basis to recommend granting the relief sought in this appeal and affirm  the
1979 decision of the Board to deny this application.

_________________________________________________________________

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 in  Executive
Session on 23 October 2003, under the provisions of AFI 36-2603:

            Mr. Joseph A. Roj, Panel Chair
            Ms. Beth M. McCormick, Member
            Mr. James E. Short, Member


The following documentary evidence for AFBCMR  Docket  Number  BC-2002-02680
was considered:

      Exhibit A.  DD Form 149, dated 5 Aug 02, with attachments.
      Exhibit B.  Applicant's Master Personnel Records.
      Exhibit C.  Letter, BCMR Medical Consultant, dated 12 Dec 02.
      Exhibit D.  Letter, AFPC/DPPD, dated 24 Jan 03.
      Exhibit E.  Letter, SAF/MRBR, dated 31 Jan 03.
      Exhibit G.  Applicant’s Rebuttal, dated 25 Feb 03.




                                  JOSEPH A. ROJ
                                                   Panel Chair