RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-02027
            INDEX CODE:  108.02

            COUNSEL:  MR. GUY FERRANTE

            HEARING DESIRED:  YES


_________________________________________________________________

APPLICANT REQUESTS THAT:

His records be corrected to show he is fit for duty  and  returned  to
active duty retroactive to his date of separation, with back  pay  and
benefits.  In addition, he be cross-trained into another field and, if
required, placed on an Assignment Limitation Code (ALC)  “C”  for  the
remainder of his active duty service until eligible for retirement.

By  amendment  at  Exhibit  F,  counsel  requests  the  applicant   be
reinstated to active duty, with or without retraining  and  assignment
limitations.
_________________________________________________________________

APPLICANT CONTENDS THAT:

The actions of the Formal Physical Evaluation Board (FPEB) and the Air
Force Personnel Counsel to discharge him, with a 10% disability rating
and severance pay,  were  arbitrary  and  capricious  and,  therefore,
unjust.  Other military members who suffered  from  asthma  and  found
unfit by the disability system were retained, while he  was  not.   He
should have  been  returned  to  duty,  with  a  code  “C”  assignment
limitation and a cross-training recommendation.

In  support  of  his  request,  counsel  submits  a  legal  brief  and
additional  documents  associated  with  the  issues  cited   in   his
contentions.  The applicant’s complete submission,  with  attachments,
is at Exhibit A.
_________________________________________________________________

STATEMENT OF FACTS:

The applicant’s Total Active Federal Military Service Date (TAFMSD) is
27 June 1990.  He was progressively promoted to  the  grade  of  staff
sergeant, with an effective date and date of rank of 1 August 1996.

A Medical Evaluation Board (MEB) was convened  on  1  March  2001  and
their diagnosis and findings were:  mild  intermittent  to  persistent
asthma.   The  MEB  recommended  referral  to  the  Informal  Physical
Evaluation Board (IPEB).

On 19  March  2001,  an  Informal  Physical  Evaluation  Board  (IPEB)
convened  and  established  a  diagnosis  of  mild   intermittent   to
persistent asthma.  The IPEB found  the  applicant  unfit  because  of
physical disability and recommended discharge with severance pay, with
a compensable rating of ten (10)  percent.   On  22  March  2001,  the
applicant disagreed with the findings and recommended  disposition  of
the IPEB and requested a hearing before a Formal PEB (FPEB).

On 19 April 2001, the applicant  appeared  before  a  Formal  Physical
Evaluation Board (FPEB).  Following applicant’s testimony  and  review
of the medical evidence, the FPEB confirmed the findings of  the  IPEB
and  recommended  discharge  with  severance  pay,  with   a   maximum
compensable rating of ten percent.  The applicant disagreed  with  the
findings and recommended disposition  of  the  FPEB  and  submitted  a
written rebuttal to the Secretary of the Air Force  Personnel  Council
(SAFPC).   SAFPC  considered  applicant’s  rebuttal  letter,  with   a
contention for return to duty.  SAFPC also reviewed the  evidence  and
testimony presented before the FPEB, the remarks by the FPEB and IPEB,
the service medical record and the medical summary leading to the  MEB
prior to arriving at their decision to concur with the recommendations
of the FPEB and IPEB for a disposition of discharge with severance pay
and a disability rating of ten percent.

On 14 August 2001, the applicant was honorably discharged in the grade
of  staff  sergeant  (E-5)  under  the  provisions  of   AFI   36-3212
(Disability, Severance Pay).  He had completed a total of 11 years,  1
month and 17 days of active duty service at the time of discharge.
_________________________________________________________________

AIR FORCE EVALUATIONS:

The BCMR Medical Consultant summarized the  information  contained  in
the applicant’s personnel  and  medical  records.   The  BCMR  Medical
Consultant states that, although the applicant’s asthma may  be  mild,
it has resulted in duty limitations that are  not  compatible  with  a
fully fit and vital force and poses  requirements  that  the  Physical
Evaluation  Boards  and  Air  Force   Personnel   Council   previously
determined to be unreasonable.  Code “C”  limitation  is  assigned  in
cases where the member with  a  medical  condition,  who  is  able  to
perform his duties, is retained in the Air Force but is prevented from
being placed into an environment where they may not  receive  adequate
medical care and, in the case of asthma and reactive airways  disease,
aggravate the condition.  There are few  career  fields  that  do  not
deploy and the deployment burden has been increasing while  the  total
force continues to decrease in number.   Although  some  members  with
mild asthma are found fit and retained on active duty on  a  code  “C”
limitation (preventing deployment  or  assignment  to  “remote”  CONUS
sites), these are exceptions to standard policy and are administrative
in nature and outside the scope of  this  advisory.   Details  of  his
evaluation are at Exhibit C.


HQ AFPC/DPPD recommends the application be denied.  DPPD  states  that
the applicant was processed through the military disability evaluation
system (DES) and he was recommended for discharge with entitlement  to
severance pay, with a ten percent disability rating.  The Secretary of
the Air Force Personnel Council  (SAFPC)  reviewed  the  evidence  and
testimony presented by the FPEB and IPEB,  including  service  medical
record and the medical summary leading to the MEB, prior  to  arriving
at their decision to concur with the recommendations of the  FPEB  and
IPEB for a disposition of discharge with severance  pay,  with  a  ten
percent disability  rating,  effective  14  August  2001.   Disability
processing records reflect the applicant was treated fairly  and  that
he was properly rated under disability laws and policy at the time  of
his disability discharge.  DPPD found no injustice or errors  occurred
during the DES  process  which  would  warrant  the  changing  of  the
applicant’s military  records.   They  agree  with  the  BCMR  Medical
Consultant’s assessment of the case.  The HQ AFPC/DPPD  evaluation  is
at Exhibit D.
_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

Counsel reviewed the advisory opinions and states that DPPD’s  single-
minded confidence in having followed  all  the  applicable  rules  and
regulations  does  not  negate  the  injustice  of   the   applicant’s
treatment.  The BCMR Medical Consultant goes through a similar summary
of the applicant’s disability processing and  includes  a  generalized
description of  asthma,  along  with  a  discussion  of  the  policies
underlying the physical evaluation system, assignment limitations  and
cross-training.  Notably missing, however, is any meaningful  analysis
of the applicant’s “asthma” symptoms in relation  to  those  policies.
Another unique aspect of applicant’s case is that  he  received  three
anthrax vaccinations and deployed to Saudi Arabia shortly  before  the
onset of the symptoms that led to his treatment by Dr. S---.  Contrary
to the Medical Consultant’s representation, military standards do  not
identify asthma as automatically unfitting, but  merely  a  reason  to
initiate MEB processing.  And that is only “unless due to well defined
avoidable precipitant cause.”  It is widely recognized that asthma can
be caused by a reaction to allergens.  The Department of Defense  says
that the anthrax vaccine can cause allergic reactions with asthma-like
symptoms, if not asthma itself.  Thus, it is  entirely  possible  that
the applicant was separated from active duty  because  of  a  one-time
sensitivity to the anthrax vaccine that  he  received  shortly  before
those symptoms manifested themselves.  The  foregoing  possibility  is
reinforced by the fact that the applicant has  been  asymptomatic  for
nearly three  years  in  the  asthma-challenging  environment  of  San
Antonio,  TX.   A  pulmonary  specialist  examined  the  applicant  in
September 2003 and determined that his pulmonary function  tests  were
normal.  The applicant’s position is that he was fit for duty when  he
was separated in 2001, and he is fit for duty now.  Counsel’s complete
response, with attachments is at Exhibit F.
_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATIONS:

Pursuant to the Board’s request, the following advisory opinions  were
provided concerning the issues of the anthrax vaccination  and  cross-
training.


The BCMR Medical Consultant states the applicant received the  anthrax
vaccine on three occasions, 27 December 1999, 10 January 2000  and  24
January 2000.  There  is  no  documentation  present  in  the  service
medical record  that  shows  the  applicant  experienced  any  adverse
reaction to the shots including wheezing,  coughing  or  shortness  of
breath.  Review of available medical literature finds no evidence that
the anthrax vaccine is a  discrete  cause  of  asthma.   The  frequent
occurrence of difficulties personnel with even mild asthma  experience
is why asthma, including mild asthma, and  recurrent  bronchospasm  or
reactive  airways  disease  is  disqualifying  for  flying  duty,  may
preclude  continued  military  service  and  results   in   assignment
limitations in those retained.  The applicant’s asthma is not due to a
well-defined  avoidable  precipitant  cause.   Medical   documentation
indicates that a wide variety of unavoidable,  non-specific  irritants
trigger his symptoms.  The condition  mandates  a  Medical  Evaluation
Board and the decision to retain a member with disqualifying asthma is
a personnel decision dependent on the needs and  requirements  of  the
Air Force.  The fact that the applicant is currently  doing  well  for
several months off medication in San Antonio does not predict he  will
not have a recurrence.  The  triggers  for  the  applicant’s  reactive
airways symptoms were identified in medical records as a wide  variety
of nonspecific irritants.   Applicant’s  history  of  asthma  and  the
difficulties in Italy and California are indicative of an unacceptable
increased risk for future problems.  The BCMR Medical Consultant is of
the opinion that no change in the records is  warranted.   The  AFBCMR
Medical Consultant’s evaluation is at Exhibit G.


HQ AFPC/DPPD states it has been determined that information  from  all
reviewing Physical Evaluation Boards (PEBs) found the applicant  unfit
for continued military service.  Based on  these  findings,  the  PEBs
recommended discharge, with severance pay, in which cross training was
not an issue  regardless  of  the  applicant’s  desire.   Since  prior
advisory opinions did not mention cross-training  consideration  as  a
reasonable possibility,  the  applicant’s  secondary  request  is  not
relevant and, therefore, no opinion on the issue is necessary.  The HQ
AFPC/DPPD evaluation is at Exhibit H.
_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATIONS:

Counsel  reviewed  the  advisory  opinions  and  states  the   anthrax
vaccination  was  broached  as  one  of   many   “entirely   possible”
explanations for the July 2000 episode  that  eventually  led  to  the
applicant’s  discharge.   The  applicant  has  been  doing  well   off
medication for nearly three years, with August  2001  being  the  last
time any medication was used.   Nothing  in  the  applicant’s  medical
history supports the proposition that he was unfit in 2001 or is unfit
now.

Counsel believes the issue is the reality of the  applicant’s  fitness
for active duty, not the technicalities of his  diagnosis.   Not  once
during his entire active duty career was the  applicant  precluded  by
asthmatic symptoms from doing his Air Force duty.  Not once since  has
active duty career was terminated has he been precluded  by  asthmatic
symptoms from doing his Air  Force-related  job.   Even  if  his  non-
existent, non-debilitating symptoms are somehow deemed  unfitting,  an
“exception to policy” is fully warranted by the circumstances.

Counsel’s complete response, with attachment, is at Exhibit J.
_________________________________________________________________

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 reviewing  the  facts  and
circumstances leading to the applicant’s discharge in conjunction with
his request for reinstatement to active duty, we are  unpersuaded  the
action taken by the Disability Evaluation System (DES)  was  erroneous
or he did not receive full consideration  by  all  levels  of  review.
Although the applicant is currently doing well, evidence has not  been
presented  which  shows  to  our  satisfaction  that  his   disability
processing and the findings he  received  at  final  disposition  were
contrary to the governing regulation.  As noted by  the  BCMR  Medical
Consultant, applicant’s asthma is not due to a well-defined  avoidable
precipitant cause.  Therefore, he is at an increased risk  for  future
problems because of the wide variety of  non-specific  irritants  that
can trigger his reactive airways  symptoms.   With  regard  to  cross-
training and designating an  assignment  limitation  code,  since  the
applicant was not found fit to return to duty,  the  issues  were  not
considered relevant.  Absent persuasive  evidence  that  the  Physical
Evaluation Boards’ findings were erroneous, we agree with the opinions
and recommendations of the respective Air Force offices  and  conclude
that the applicant has failed  to  sustain  his  burden  that  he  has
suffered either an error or injustice.  In view of the  foregoing  and
in the absence of sufficient evidence that was  not  available  during
applicant’s DES processing, or showing that the appropriate  standards
of policy were not applied or he was denied rights  to  which  he  was
entitled, we find no compelling basis to recommend granting the relief
sought in this application.

4.  The applicant's case is adequately documented and it has not  been
shown  that  a  personal  appearance  with  or  without  counsel  will
materially  add  to  our  understanding  of  the  issue(s)   involved.
Therefore, the request for a hearing 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  in
Executive Session on  25  March  2004  and  8  June  2004,  under  the
provisions of AFI 36-2603:

                  Mr. Robert S. Boyd, Panel Chair
                  Mr. Albert C. Ellett, Member
                  Ms. Beth M. McCormick, Member

The following documentary evidence was considered in  connection  with
AFBCMR Docket Number BC-2003-02027.

   Exhibit A.  DD Form 149, dated 12 Jun 03, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, BCMR Medical Consultant, dated 29 Oct 03.
   Exhibit D.  Letter, HQ AFPC/DPPD, dated 23 Jan 04.
   Exhibit E.  Letter, SAF/MRBR, dated 30 Jan 04.
   Exhibit F.  Letter from Counsel, dated 1 Mar 04, w/atchs.
   Exhibit G.  Letter, BCMR Medical Consultant, dated 25 Mar 04.
   Exhibit H.  Letter, HQ AFPC/DPPD, dated 12 Apr 04.
   Exhibit I.  Letters, SAF/MRBR, dated 16 Apr 04, and AFBCMR,
                 dated 26 Apr 04.
   Exhibit J.  Letter from Counsel, dated 25 May 04, w/atch.



                                   ROBERT S. BOYD
                                   Panel Chair