RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBERS:  BC-2003-00224
            INDEX CODE 108.05  108.10
            COUNSEL:  None

            HEARING DESIRED:  No

_________________________________________________________________

APPLICANT REQUESTS THAT:

His 2002 discharge  for  completion  of  required  active  service  be
changed to a disability discharge/retirement.

[Note: The applicant also requested that his DD Form 214 be amended to
reflect his correct foreign service time and award of the Armed Forces
Expeditionary Medal (AFEM). These requests have been  administratively
granted and the applicant was so notified by AFPC on 1 Apr 03.]
_________________________________________________________________

APPLICANT CONTENDS THAT:

He was  hospitalized  almost  immediately  after  his  separation  and
eventually diagnosed with non-seminoma, testicular cancer,  Stage  2C.
In addition to the chemotherapy he  is  undergoing,  he  will  require
surgery and 5-10 years of expensive follow-up medical care.  Since  he
will be infertile, he had to incur  tremendous  costs  to  retain  his
deposits at a sperm bank. He has no medical insurance, no  income  and
no assets. He will be uninsurable because of  a  pre-condition,  which
existed while he was on active duty.  He  complained  consistently  of
pains  in  the  area  where  his  tumor  is  now  located,   but   was
misdiagnosed. His records document this as well as his illnesses since
his return from the Persian Gulf. He had planned to reenlist but since
he never felt healthy enough to go through the rigors of his  job,  he
opted for release. He needs to have his discharge changed to a medical
retirement so TRICARE insurance can pay these and future bills.

Included in his appeal is a physician’s  letter  confirming  that  the
cancer  developed  prior  to  discharge.  The   applicant’s   complete
submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 24 Jun 98  and  was
assigned to the 436th Aerial Port Squadron to  Dover  AFB,  DE,  as  a
ramp/passenger service agent. He was promoted to the grade  of  senior
airman on 24 Jun 01. He had tours of duty in Saudi  Arabia  (7  Mar-13
Jun 00) and Oman (27 Sep-12 Dec 01). All of  his  performance  reports
reflect the highest overall rating of “5.”

Other than documentation  provided  by  the  applicant,  his  military
medical records  are  unavailable.  Apparently,  the  applicant  began
experiencing abdominal and low back pain sometime in Jul 02. On 10 Aug
02, he was treated at a civilian emergency room  for  increasing  back
and abdominal pain of five days’ duration. No clear history of  injury
or strain was present. No  relief  was  obtained  with  treatment  and
physical exam and routine blood tests  were  unremarkable  except  for
abdominal tenderness.

On 30 Jul 02, the applicant’s request for separation  effective  1 Nov
02 was approved.

The applicant was evaluated by the 436th Medical Group  clinic  on  12
Aug 02 for flank, abdominal and low back pain described as  unbearable
and focal. The  physician  noted  back  muscle  spasms  and  suspected
possible musculoskeletal back pain with muscle spasm, but  listed  the
possibility of a kidney stone.  The  applicant  was  treated  for  the
musculoskeletal diagnosis and instructed to return  if  there  was  no
relief or symptoms increased.

At the applicant’s 12-13 Sep 02 medical assessment/separation physical
exam, he reported intense back pain, cough, possible  asthma,  hearing
loss  and  “feeling  out  of  shape.”  The  physician  indicated   the
applicant’s back pain had reportedly improved and noted a recent upper
respiratory infection accompanied  by  wheezing.  The  physician  also
indicated the lower back pain was “consistent  with  lumbago”  and  no
additional workup was needed.

On 25 Sep 02, the applicant began terminal leave.

He was released from active duty on 1 Nov 02 in the  grade  of  senior
airman with four years, four months and eight days of  active  service
and transferred to the Air Force Reserve.

On 7 Nov 02, the applicant was hospitalized on an emergency basis  for
abdominal pain. Computed Axial Tomography (CAT scan)  of  his  abdomen
and pelvis revealed extensive, massive abnormal enlargement  of  lymph
nodes. No other medical records are available for review  between  the
time of his separation exam and his 7 Nov 02 hospitalization.

An oncology consult on 8 Nov 02 records  the  applicant’s  history  of
abdominal pain persisting off and on since Aug 02, as well  as  a  10-
pound weight loss. A diagnosis of germ cell testicular cancer was made
on biopsy. The applicant has been undergoing chemotherapy since 16 Nov
02. A period of one year of disability related to his cancer treatment
is estimated.

The  Department  of  Veterans  Affairs  (DVA)  has  granted   service-
connection for germ cell tumor at 100%, effective 2 Nov 02.

_________________________________________________________________

AIR FORCE EVALUATION:

The AFBCMR Medical Consultant indicates the  applicant  was  diagnosed
with his cancer one  week  after  discharge.  It  is  clear  that  the
symptoms of abdominal and back pain, fatigue and weight  loss  in  the
three months prior  to  discharge  represented  the  initial  clinical
presentation of his cancer that existed even before he experienced any
symptoms. Although complete service medical records are not  available
for review, the Consultant believes  the  applicant  would  have  been
placed on medical hold and retained  on  active  duty  for  diagnostic
evaluation and initiation of treatment had his CAT scan been performed
while on active duty. Pending the outcome of his cancer treatment, the
applicant would have been placed on the Temporary  Disability  Retired
List (TDRL) and reevaluated in one year. The Consultant concludes  the
applicant should be placed on the TDRL at 100%.

A complete copy of the evaluation is at Exhibit C.

HQ AFPC/DPPD notes that, although medical evidence shows the applicant
was treated for various medical conditions, the preponderance  of  the
evidence does not show his military career was curtailed as  a  result
of an unfitting medical condition. Medical evidence  provided  by  the
applicant shows he was found to have an  unfitting  medical  condition
shortly after his release from active duty. Military  records  clearly
indicate he was capable of performing his  military  duties  right  up
until his discharge. A member’s ability  to  perform  military  duties
coupled with the fact that a serious medical condition may  curtail  a
military career are two  of  the  primary  considerations  during  the
medical/physical evaluation board (MEB/PEB) process.  Considering  the
sensitive nature of this situation, the applicant’s case was forwarded
to the Informal Physical Evaluation Board (IPEB) for a fair,  unbiased
assessment. The IPEB determined that had he been referred to  an  MEB,
the board would likely have returned him to duty for further treatment
and observation. The IPEB agrees that, had the applicant  remained  on
active duty, he may possibly have been eventually referred to an  MEB.
However, based on the 27 Nov 02 report from the  Cancer  Institute  of
New Jersey (Exhibit A), it seems unlikely  that  he  would  have  been
placed on the TDRL, at least up to the  current  point  in  time.  The
documentation provided more appropriately supports a return to  active
duty for continued care, after which his  voluntary  separation  would
take effect with subsequent medical care  provided  through  the  DVA.
Although the AFBCMR Medical Consultant  recommends  placement  on  the
TDRL with 100% disability, DPPD contends it is not in  a  position  to
modify the normal PEB process. DPPD explains the  differences  between
Titles 10 and 38 of the United States Code (USC), which govern the Air
Force and the DVA, respectively.  DPPD  recommends  denial,  asserting
that approving the applicant’s request would set a precedent in  which
other veterans involved in similar untimely cases would not  be  given
the  same  opportunity  under  the  provisions  of  AFI  36-3212.  The
applicant should  continue  to  receive  treatment  from  the  DVA  as
provided by Title 38.

A complete copy of the evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant contends that, had he been correctly  diagnosed  in  the
first place while he was still on active duty, he  would  have  fallen
under the provisions of Title 10,  rather  than  Title  38.  The  base
hospital was closed on weekends so he went to a civilian hospital.  He
then visited the base hospital because he was doubled  over  in  pain;
however, the military facility did the same tests and went no  further
in its evaluation. He was incorrectly diagnosed with muscle spasms  by
the base hospital three months before his discharge. He had planned to
reenlist but could no longer endure performing his duties due to pain.
He trusted the military caregivers, who assured him his condition  was
due to muscle spasms. As a young man, the last thing he  expected  was
the serious diagnosis he ultimately received.  He  describes  the  two
surgeries he has had since 17 Mar 03. He is unable to father children.
He remains uninsurable and unemployable. He had  to  turn  to  Charity
Care  and  Social  Security  for  disability,  a  situation  he  found
degrading. He cites the AFBCMR  Medical  Consultant’s  evaluation  and
recommendation, and his doctors who confirm his cancer existed  before
he was discharged. He requests a medical retirement.

In a second rebuttal, the applicant forwarded another letter from  his
oncologist, who  advises  that  he  is  a  “poor  prognostic  patient”
requiring more cycles of chemotherapy than if he  had  been  diagnosed
while  still  in  the  “good”  prognostic  category.  The   oncologist
describes the severe adverse effects of the applicant’s treatment. His
disablement is anticipated to be at least one year, if not far longer,
with extended follow-up care. The doctor asserts this cancer certainly
developed prior to discharge from the service. Further, not  only  did
the tumor develop while he was  in  the  service,  the  [Air  Force’s]
inability to correctly diagnose the problem upon initial  presentation
in Aug 02 resulted in  a  delay  in  therapy  and  ultimately  a  poor
prognosis categorization. The applicant’s outcome is  clearly  not  as
favorable as in patients who are diagnosed early in the course of this
disease. Despite that, the doctor understands the  applicant  and  his
family are not considering a  medical  malpractice  claim,  which  she
believes may well be warranted in this case, but are only  asking  for
Armed Services insurance coverage. This is  reasonable  and  something
the military should be willing to provide.

Complete copies of applicant’s responses,  with  attachments,  are  at
Exhibit F.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

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

2.    The application was timely filed.

3.    Sufficient relevant evidence has been presented  to  demonstrate
the existence of error or injustice to warrant placing  the  applicant
on the TDRL with a 100% disability rating.  HQ  AFPC/DPPD’s  rationale
and  recommendation  to  deny  was  noted.  However,  after  carefully
reviewing the available evidence, we are inclined to  agree  with  the
opinion of the civilian  medical  providers  and  the  AFBCMR  Medical
Consultant that  the  applicant’s  symptoms  of  abdominal/back  pain,
fatigue and weight  loss  in  the  three  months  prior  to  discharge
represented the initial  clinical  presentation  of  the  cancer  that
existed even before he experienced any symptoms.  We further accept as
reasonable that if the applicant had  his  CAT  scan  while  still  on
active duty, he would have been placed on medical  hold  and  retained
for initiation of treatment and disability system evaluation. While HQ
AFPC/DPPD believes the applicant would very likely have been  returned
to duty had he  been  evaluated  by  an  IPEB,  we  are  not  entirely
comfortable  with  this  assumption  given  the  applicant’s   serious
condition and his assertion that  he  curtailed  his  military  career
because he felt too  ill  to  continue.  We  are  persuaded  that  the
available evidence supports giving the benefit of the  doubt  in  this
case to the applicant by placing him on the TDRL so he may be properly
evaluated and treated until his condition is stabilized,  which  could
take several years. At that point, the Air Force will make  the  final
determination whether the applicant should be permanently  retired  or
discharged with severance pay for medical disability, or found fit and
returned to active duty. Therefore, the applicant’s records should  be
amended as indicated below.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT, be corrected to show that:

      a.  On 31 October 2002, he was found unfit to perform the duties
of his office, rank, grade or rating by reason of physical  disability
incurred while entitled to receive basic pay; that  the  diagnosis  in
his case was Stage IIC non-seminomatous germ cell  tumor,  VASRD  Code
7528, disability rating 100%; that the disability  may  be  permanent;
that the disability was not due to intentional misconduct  or  willful
neglect; that the disability was  not  incurred  during  a  period  of
unauthorized absence; that the disability was in line of duty and  was
incurred  during  a  period  of  national  emergency;  and  that   the
disability was not the direct result of armed conflict or caused by an
instrumentality of war.

      b.  On 1 November 2002,  he  was  not  honorably  released  from
active duty but on 2  November  2002,  his  name  was  placed  on  the
Temporary Disability Retirement List (TDRL) under  the  provisions  of
AFI 36-3212 and Title 10, United States Code, Section 1202.
_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 30 July 2003 under the provisions of AFI 36-2603:

                 Mr. Roscoe Hinton, Jr. Panel Chair
                 Ms. Kathleen F. Graham, Member
                 Ms. Cheryl Jacobson, Member

The following documentary evidence relating to AFBCMR Docket Number BC-
2003-00224 was considered:

   Exhibit A.  DD Form 149, dated 13 Jan 03, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFBCMR Medical Consultant, dated 5 May 03.
   Exhibit D.  Letter, HQ AFPC/DPPD, dated 3 Jun 03.
   Exhibit E.  Letter, SAF/MRBR, dated 5 Jun 03.
   Exhibit F.  Letters, Applicant, dated 16 Jun & 4 Jul 03,
                     w/atchs.




                                   ROSCOE HINTON, JR.
                                   Panel Chair



AFBCMR BC-2003-00224




MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air
Force Board for Correction of Military Records and under the authority
of Section 1552, Title 10, United States Code (70A Stat 116), it is
directed that:

      The pertinent military records of the Department of the Air
Force relating to   , be corrected to show that:

           a.  On 31 October 2002, he was found unfit to perform the
duties of his office, rank, grade or rating by reason of physical
disability incurred while entitled to receive basic pay; that the
diagnosis in his case was Stage IIC non-seminomatous germ cell tumor,
VASRD Code 7528, disability rating 100%; that the disability may be
permanent; that the disability was not due to intentional misconduct
or willful neglect; that the disability was not incurred during a
period of unauthorized absence; that the disability was in line of
duty and was incurred during a period of national emergency; and that
the disability was not the direct result of armed conflict or caused
by an instrumentality of war.

           b.  On 1 November 2002, he was not honorably released from
active duty but on 2 November 2002, his name was placed on the
Temporary Disability Retirement List (TDRL) under the provisions of
AFI 36-3212 and Title 10, United States Code, Section 1202.




   JOE G. LINEBERGER

   Director

   Air Force Review Boards Agency