RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBERS:  BC-2002-03929
            INDEX CODE 108.02 110.02 102.08
            COUNSEL:  None

            HEARING DESIRED:  No

_________________________________________________________________

APPLICANT REQUESTS THAT:

His four years as a Uniformed Services University of the  Health  Care
Services (USUHS) student be applied to his total active  duty  service
of 16 years,  4  months  and  1  day  and  his  2002  resignation  for
completion  of  required  active  service  be  changed  to  a  medical
retirement.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He had heart palpitations and other medical problems while  on  active
duty and should have been presented  to  a  Medical  Evaluation  Board
(MEB). His separation “physical” did not  include  an  examination  or
discussion regarding his list of medical problems. Using the  Veterans
Affairs (VA) rating schedule, these problems show  their  seriousness.
He had heart palpations again shortly after separating. He has stomach
problems and severe sleep apnea. His USUHS time should  be  creditable
towards retirement by reason of physical disability incurred while  on
active duty. With more than 20 years of active duty, his status  would
be  changed  from  separated  to  retired  with   all   benefits   and
entitlements.

The applicant’s complete submission, with attachments, is  at  Exhibit
A.

_________________________________________________________________

STATEMENT OF FACTS:

Despite requests by SAF/MRBR, the applicant’s service medical  records
are unavailable, other than the documents provided at Exhibits  A  and
B.

Title 10, USC, Section 8911, requires a member to serve  at  least  20
years of active federal military service to be eligible for  years  of
service retirement (see Exhibit F).

According to Title 10, USC, Section 2126, participation in  the  USUHS
program is not creditable in determining eligibility  for  retirement.
However, per Title 10, USC, Section 2114,  a  graduate  of  USUHS  who
serves on active duty for 20 years will be eligible for the retirement
annuity with a pay multiplier of an additional four years.

In the fall of 1992, Congress enacted and  the  Secretary  of  Defense
(SecDef) approved legislation providing for retirement from the active
military with as few as 15 years of creditable  total  active  service
under the provisions  of  the  Temporary  Early  Retirement  Authority
(TERA). This temporary legislation expired on 31 Dec 01.  TERA  was  a
force-shaping drawdown tool, not an entitlement,  and  permitted  each
Service to target segments of eligible population where  losses  would
most  likely  occur.  Not  all  members  meeting  minimum  eligibility
criteria were offered TERA. The Military Personnel  Flight  Memorandum
(MPFM) dated 6 Dec 99 implemented the  FY00-FY01  Phase  III,  Officer
Voluntary  Early  Retirement  Program,  established  the   eligibility
criteria  and  identified  TERA  eligibles  by  grade  and  Air  Force
Specialty Code (AFSC).

The applicant began his first year in USUHS on 4 Aug  82  and  entered
active duty on 17 May 86 with a Regular  commission  after  graduating
with his medical degree. For his education, he incurred an active duty
service commitment (ADSC) until 16 May 02. The applicant completed his
orthopedic surgery residency at Wilford Hall Medical Center on 30  Jun
95, and ultimately attained the rank of lieutenant colonel. He  served
as a general medical officer, an  emergency  services  physician,  and
lastly as the orthopedic  surgical  chief  at  Keesler  AFB,  MS.  His
Officer Performance Reports (OPRs) reflect excellent performance.

On 4 Apr 02, the applicant voluntarily applied for separation with  an
effective date of 17 Sep 02. His voluntary application was approved on
15 Jul 02. At the time, the applicant had  over  15  years  of  active
service, but he was not eligible to apply for  retirement  under  TERA
because his AFSC (45BX) was excluded from consideration.

On 5 Aug 02, the applicant elected to take a  medical  examination  in
conjunction with his  scheduled  separation.  Review  of  his  medical
records determined that a  physical  examination  for  separation  was
required and an  appointment  was  set  for  around  12 Aug  02  (date
illegible). On  an  11  Aug  02  Report  of  Medical  Assessment,  the
applicant indicated his overall health  was  worse  and  he  had  been
evaluated for “Athletic  Heart  Syndrome”  and  peripheral  edema.  He
attached  a  two-page  list  of  medical  complaints,  conditions  and
injuries. However, he also indicated on the assessment that he did not
have any condition which currently limited his ability to work in  his
primary  military  specialty  or  required  geographic  or  assignment
limitations.  The   physician   noted   that   the   applicant’s   new
concerns/complaints, reviewed the records, and determined  no  further
medical evaluations were needed.

The applicant resigned and was honorably separated  in  the  grade  of
lieutenant colonel for completion of required active service on 17 Sep
02 with 16 years, 4 months and 1 day of active service.

The remaining details regarding the medical issues  are  discussed  by
the applicant in his submission at Exhibit A and by the AFBCMR Medical
Consultant in his evaluation at Exhibit C.

_________________________________________________________________

AIR FORCE EVALUATION:

The AFBCMR Medical Consultant notes that, according to the  applicant,
a second cardiologist  in  Jan  02  did  not  agree  with  a  previous
cardiologist’s Oct 00 opinion of athletic heart syndrome and  did  not
believe  the  applicant  required  an  MEB.  Echocardiogram  (EKG)  is
reported by the applicant to have shown “borderline  left  ventricular
hypertrophy, and some  leaky  heart  valves.”  After  separation,  the
applicant underwent further medical testing and provided copies of  an
echocardiogram, a stress  test,  a  sleep  study  and  results  of  an
esophagogastroduodenoscopy (EGD). The EKG findings were  mild  and  do
not represent findings that would cause any functional impairment. The
mitral  valve  abnormality  warrants  monitoring.  The   stress   test
indicated an excellent level of fitness, a low  risk  for  significant
coronary  heart  disease  with  normal  cardiac  function,   excellent
exercise capacity and a  benign  prognosis  for  the  extra  beats  he
experiences. The sleep studies  diagnosing  severe  obstructive  sleep
apnea showed excellent response to continuous positive airway pressure
(CPAP). The EGD found  a  small  hiatal  hernia  but  no  evidence  of
inflammatory change, mass or a precursor to  esophageal  cancer.   The
applicant voluntarily separated following completion of his period  of
obligated service. There is no evidence that the various injuries  and
medical  conditions  listed  by  the  applicant  interfered  with  his
performance of duty as an orthopedic surgeon. The mere presence  of  a
physical defect or condition does not qualify a member for  disability
retirement or discharge. Further, the inability to perform specialized
duties (i.e., surgery when the  physician  can  still  be  used  as  a
physician or medical officer in another capacity) or the fact that the
member has a condition which is  cause  for  referral  to  a  Physical
Evaluation  Board  (PEB)  is  not  justification  for  a  finding   of
unfitness. None of the conditions listed by the applicant  would  have
been cause for referral to a PEB. There is no evidence  the  applicant
was unable to practice medicine due to  a  medical  condition  and  no
evidence in the personnel file that action to restrict his  privileges
to practice medicine had been made or was pending at the time  of  his
voluntary separation. Denial is recommended.

A complete copy of the evaluation is at Exhibit C.

HQ AFPC/DPPAOR advises that, in accordance with Title 10, USC, Section
2126,  participation  in  the  USUHS  program  is  not  creditable  in
determining eligibility for retirement. However, per  Title  10,  USC,
Section 2114, a graduate of USUHS who serves on  active  duty  for  20
years  will  be  eligible  for  the  retirement  annuity  with  a  pay
multiplier of an additional four years. The applicant  does  not  meet
the eligibility requirement for a retired annuity because he  did  not
complete 20 years of active  service  prior  to  discharge.  The  USAF
Physical Disability Division has denied his request.

[Examiner’s Note: Title 10, USC, Section  2126  stipulates,  in  part,
that service  credit  for  USUHS  is  not  creditable  in  determining
eligibility  for  retirement  other  than  by  reason  of  a  physical
disability incurred while on active duty as a member of the  program.]
A complete copy of the evaluation is at Exhibit D.

HQ AFPC/DPPD asserts that although evidence provided by the  applicant
shows he was treated for various  medical  conditions  throughout  his
military career, the preponderance  of  evidence  does  not  show  his
career was curtailed or shortened as a result of an unfitting  medical
condition. His personnel records clearly indicate he  was  capable  of
performing his duties as an orthopedic element chief  right  up  until
his discharge date. This is documented in his most recent  performance
report closing 30  Jun  01.  An  11 Aug  02  medical  assessment  also
reflects he was  cleared  for  worldwide  service/separation  with  no
serious or life-threatening  medical  conditions  at  that  time.  His
career ended as a result of his election to be  released  from  active
duty, not due  to  a  severe  medical  condition.  DPPD  explains  the
differences between Titles 10 and 30 of the USC. They find no acts  of
discrimination or injustice during the  voluntary  discharge  process,
nor were there any physical disabilities documented serious enough  to
warrant  the  initiation  of  an  MEB  or  to  justify  a   disability
retirement.  DPPD  concurs  with  the  AFBCMR   Medical   Consultant’s
assessment and recommendation to deny.

A complete copy of the evaluation is at Exhibit E.

HQ AFPC/DPPRRP notes the applicant had over 15 years of active service
at the time of his  discharge  but  was  not  eligible  to  submit  an
application for retirement under the early retirement program  because
his AFSC was excluded  from  consideration.  Further,  he  voluntarily
requested release and discharge from  the  Air  Force.  There  are  no
provisions of law to grant  credit  for  unserved  service,  nor  does
DPPRRP support awarding the applicant credit for four years  of  USUHS
program  to  permit  retirement  for  length   of   service   (20-year
retirement). Additionally, it would be an injustice to other Air Force
officers who attended the USUHS program and did not receive creditable
service to permit retirement for length of service.

A complete copy of the evaluation, with attachments, is at Exhibit F.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant questions why the four years  in  USUHS  are  considered
noncredible service when by all appearances he was on active duty.  He
believes this is discriminatory. He concedes no limits were placed  on
his  medical  practice  and  he  could  perform  all  requirements  of
orthopedic surgery. However, these requirements are  the  same  for  a
civilian orthopedic surgeon. He could not  deploy  with  sleep  apnea.
However, he was never referred to a Physical  Evaluation  Board  (PEB)
because his sleep apnea was never diagnosed while on active duty.  His
discharge physical was a joke. He asked to be evaluated for his  heart
disability but was erroneously told nothing was wrong. He was  ordered
by first cardiologist to limit exercise. As a result, he gained weight
and failed Air Force standards; however, he was never formally entered
into the Weight Management Program (WMP). He separated because he felt
he was no longer fit to do the job required of him and was more  of  a
liability to the Air Force. He should have been properly diagnosed and
received an MEB. He should now be credited with  20  years  of  active
service.

A complete copy of  applicant’s  response,  with  attachments,  is  at
Exhibit H.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.    The applicant has exhausted all remedies  provided  by  existing
law or regulations.

2.    The application was timely filed.

3.    Insufficient relevant evidence has been presented to demonstrate
the existence of error or injustice. After a thorough  review  of  the
evidence  of  record  and  the  applicant’s  submission,  we  are  not
persuaded that his  four  years  in  USUHS  should  be  designated  as
creditable towards 20 years of  active  federal  service  or  that  he
should be given a medical retirement. The applicant may believe  Title
10, USC, Section 2126  is  unfair.  However,  we  are  precluded  from
contravening statute and, even if this Board had the authority  to  do
so, the applicant has not shown why he should be made a discriminatory
exception from the other USUHS officers  similarly  situated.  Shortly
before his 16 May 02 ADSC date, the applicant voluntarily applied  for
separation effective 17 Sep 02. He was  not  eligible  for  retirement
under TERA because his AFSC was excluded from consideration. As  such,
the applicant is not eligible for a retirement annuity because he  did
not complete 20 years  of  creditable  active  service  prior  to  his
voluntary resignation. As for the medical issue,  we  agree  with  the
assessments by the AFBCMR Medical Consultant and HQ AFPC/DPPD that, at
the time of the applicant’s discharge, he did not  have  an  unfitting
condition. His  assertion  that  he  was  no  longer  fit  and  was  a
“liability” is his own opinion unsupported by the available  evidence.
The applicant’s career was curtailed with his voluntary election to be
released from active duty after completing his ADSC, not because of  a
severe medical condition that kept him from performing his duties as a
doctor. Indeed, this Board is aware of physicians with  non-deployable
conditions who continue to serve in a medical capacity on active duty.
As the applicant has not demonstrated he had an  unfitting  disability
warranting medical retirement, the issue of whether his four years  in
USUHS could be creditable towards retirement pay is moot. We therefore
agree  with  the  rationale  expressed  that  the  applicant  has  not
sustained 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 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 21 August 2003 under the provisions  of  AFI  36-
2603:

                 Ms. Patricia D. Vestal, Panel Chair
                 Ms. Martha J. Evans, Member
                 Mr. E. David Hoard, Member

The following documentary evidence relating to AFBCMR Docket Number BC-
2002-03929 was considered:

   Exhibit A. DD Form 149, dated 4 Dec 02, w/atch.
   Exhibit B. Applicant's Master Personnel Records.
   Exhibit C. Letter, AFBCMR Medical Consultant, dated 16 Apr 03.
   Exhibit D. Letter, HQ AFPC/DPPAOR, dated 16 May 03.
   Exhibit E. Letter, HQ AFPC/DPPD, dated 3 Jun 03.
   Exhibit F. Letter, HQ AFPC/DPPRRP, dated 24 Jun 03, w/atchs.
   Exhibit G. Letter, SAF/MRBR, dated 3 Jul 03.
   Exhibit H. Letter, Applicant, dated 13 Jul 03, w/atchs.




                                   PATRICIA D. VESTAL
                                   Panel Chair