RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2003-02885
INDEX CODE: 108.03
COUNSEL: NONE
HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS THAT:
His record be changed to show that his disabilities encountered after
his activation were judged to be service connected and any entitlement
to incapacitation pay and health benefits be reinstated.
_________________________________________________________________
APPLICANT CONTENDS THAT:
Prior to his activation (in response to 9/11 attacks), he was living a
happy and healthy lifestyle. He was working three jobs at one time,
he never missed a day of work due to illness, or hospitalization, was
very active in a variety of sports, and was at a point where he was
extremely happy with all aspects of his personal and professional
life.
His life went downhill after he was activated in September 2001. In
November 2001, he was hospitalized for the first time in his life,
during Thanksgiving, for a migraine headache attack. He states he had
never been hospitalized for migraine headaches prior to this episode.
He was prescribed medication to control the migraines and their
frequency. He states he had never been on medication for migraines
prior to his activation. He currently goes to bed and wakes up with
some sort of headache, the pain of which dictates what he will or will
not be able to accomplish during the day. He states he suffers two to
three migraines a month that totally incapacitate him to the point he
is forced to rest in a dark room until it passes.
Shortly after leaving the hospital, he experienced problems with his
breathing and was subsequently diagnosed by a pulmonologist with
asthma. He states he had never been unable to complete a task or
participate in any sporting event because of asthma.
He contends the following additional conditions manifested themselves
just after activation. None of them existed prior to his activation
and all of them require expensive medicines:
1. Obsessive/Compulsive Disorder (OCD)
2. Enlarged right ventricle of the heart.
3. An inability to sleep.
After activation, he was forced to work 12 to 16 hour shifts for a
month with no time off. Many times these shifts were performed alone
and outside where the weather was cold, windy, rainy, and very
unhealthy. These conditions led to him experiencing an inordinate
amount of stress due to unusual circumstances. He now deals with
daily health issues that prohibit him from working and functioning
like a normal, healthy 24-year-old male. He states if the Air Force
was not the cause of his health problems, it was at least a
contributing factor in causing the permanent aggravation of these
conditions. Either way, his disabilities should be considered
“service connected” rather than existing prior to service (EPTS). He
has lost his fulltime job and will soon lose any health insurance and
considers himself unemployable.
He received the results of the PEB on 17 July 2003 and was given until
31 July 2003 to rebut the findings. He developed a response and faxed
it to the PEB. Two weeks later he found out the PEB had never
received his rebuttal. Therefore, the PEB did not see his rebuttal
and considered his case closed. He has included the Fax confirmation
of receipt from the PEB office and also has a phone bill that shows he
faxed the documents to Texas.
He believes the PEB results to be erroneous and feels he was denied
due process in that he has not been allowed to rebut or appeal the
decision of the PEB. He contends that no one at the PEB office can
explain what could have happened to his rebuttal paperwork. He
contends, as a result of the nonreceipt of his rebuttal, that he has
been deprived of incapacitation pay and medical benefits for the
duration of his case. When the PEB closed his case, as a result of
not receiving a rebuttal by the deadline, his incapacitation pay was
stopped and he was no longer afforded medical care. Consequently, he
is unemployed and considered unemployable, his debt is mounting and,
he cannot afford to buy the five expensive medications he needs for
treatment.
He contends the Disability Evaluation System (DES) is in need of an
overhaul or that it was poorly administered in his case to his
financial and physical detriment.
In support of his appeal, the applicant has provided two personal
statements, copies of several statements of support from civilian
doctors, a copy of a memorandum from the PEB to the applicant
soliciting either his acceptance of or a rebuttal to their findings,
copies of fax paperwork, and a copy of his rebuttal to the PEB.
Applicant’s complete submission, with attachments, is at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
Applicant joined the Air National Guard (ANG) on 8 December 1996 and
served as a Security Forces Specialist. He attained the rank of
Senior Airman (SRA/E-4) with a date of rank of 1 March 1999. He was
activated in September 2001 in response to the 11 September 2001
terrorist attacks against the United States. On 17 July 2003, he met
a FPEB to determine his fitness for continued duty. He was found
unfit for continued duty and was recommended for discharge due to a
condition that existed prior to service (EPTS) under other than United
States Code (U.S.C.) Title 10, Chapter 61. His case was finalized on
5 August 2003 following his failure to meet an established suspense
date for submission of his rebuttal following the completion of his
formal PEB. He was honorably discharged from the ANG for physical
disqualification on 5 September 2003 after serving for 6 years, 8
months, and 28 days.
_________________________________________________________________
AIR FORCE EVALUATION:
At the request of the AFBCMR and as an exception to policy, his case
was forwarded to Secretary of the Air Force Personnel Council (SAFPC)
for additional review on 9 January 2004. SAFPC recommended the
applicant be discharged under other than Chapter 61, Title 10, U.S.C.
and confirmed the finding “not in line of duty”; existed prior to
service without service aggravation. SAFPC notes that upon review of
the testimony presented before the FPEB, the remarks of the IPEB, the
service medical record, and the narrative summary of the Medical
Evaluation Board (MEB), that they decided to concur with the previous
finding. SAFPC also considered application of service connection to
the member’s medical condition, as he desires, noting the exacerbation
of his symptoms within a period of active military service in which he
was entitled to receive basic pay.
SAFPC states the applicant’s predisposition for manifesting OCD and
somatoform symptoms, within the first week of his “activation,” were
the result of a preexisting underlying medical disorder that predated
his transition to “active” military status. SAFPC acknowledges the
member’s OCD symptoms may have become more intense following his
“activation”, such as his use of padlocks to guarantee his safety
while at home, the specific arrangement of his clothing within a
drawer, and the ritualistic cleaning of his apartment (“four or five
times a day”). However, SAFPC is of the opinion that his demonstrated
pattern of behavior following the events of “9/11” is representative
of a spectrum of symptoms resulting from his underlying preexisting
medical disorder and does not represent permanent service-aggravation.
Further, his demonstrated somatoform response (chest pain,
respiratory difficulties, headaches, fatigue, anxiety) to stressors
put upon him by the events of “9/11” less than one week after being
activated, also bear a close causal relationship with his underlying
chronic OCD. Therefore, the decision to discharge the member under
other than Chapter 61, Title 10, U.S.C.: “Signs or symptoms of chronic
disease identified so soon after the day of entry into Military
Service (usually 180 days) indicates that the disease could not have
originated in that short a period and will be accepted as proof that
the disease manifested prior to entrance into active Military
Service.” DPPD highly recommends the AFBCMR support SAFPC’s decision
and subsequently uphold the previous discharge action.
SAFPC’s complete evaluation is at Exhibit C.
AFPC/DPPD recommends denial and defers to the SAFPC advisory for it’s
rationale for denial of relief.
DPPD’s evaluation, with attachments, is at Exhibit D.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
Applicant states the advisory’s contention that his case was finalized
as he failed to meet an established suspense date for submission of
his rebuttal is incorrect. He points to his submission to the AFBCMR
wherein he includes a phone bill along with a fax confirmation sheet
that proves the fax was sent and received. He contends the advisory
is detrimental to his case in this regard as it shows he was
delinquent in taking care of his paperwork.
He states the comment in the advisory that indicates, “…within the
first week of his activation…were the result of a preexisting
underlying medical disorder that predated his transition to ‘active’
military service.” He states it only looks like it happened that way,
as the fact is that his activation orders started on 3 October 2001.
Further, he worked 14-16 hour days, seven days a week for three weeks
before getting a day off. He contends he was not suddenly sick in a
week. He states it was the accumulation of the 9/11 attack and
continually being worked the way he was. He addresses the advisory’s
statement that should an injury or a sickness occur within the first
180 days of being on active duty that it is considered definitely
EPTS. He states this is completely inaccurate and not true. He
stresses and reemphasizes the fact that before 9/11 he was never
treated for any of the conditions he is now suffering from. He
contends the advisory’s statement that “Causes are likely multiple and
related to the individual’s preexisting physiological, mental, and
emotional background” is wrong as, again, there were no preexisting
conditions as he was not seen nor treated for any of the stated
conditions prior to 9/11. He has trouble understanding how his case
can be considered preexisting.
He contends the 180-day rule has made his case easy to deny. He asks
that the Board really look at what has happened to him after
activation. He still deals with daily headaches and migraines, severe
OCD issues, respiratory problems, and wondering if he will ever find a
job that he can do under his medical circumstances. He contends the
loss of his paperwork by the FPEB caused him to be discharged from
active duty without further pay or medical benefits. Even after
showing proof that his fax was received, he has suffered over the past
eight months wondering what was happening with his situation. He
feels he was not treated fairly; that he proved his case by showing he
indeed got the pertinent rebuttal paperwork to the appropriate office
prior to the suspense date. He believes 100% that the military caused
his severe health issues. There is no record showing any health
concerns prior to 9/11. Only after his activation did his health
deteriorate and he became disabled.
He thanks the Board for their time, patience, and understanding. He
asks that the Board take sufficient time and energy in completing his
case with absolutely no bias and predisposition.
Applicant’s complete response is at Exhibit E.
_________________________________________________________________
ADDITIONAL AIR FORCE EVALUATION:
The BCMR Medical Consultant is of the opinion that no change to the
record is warranted. He notes the applicant was discharged without
disability benefits for Obsessive Compulsive Disorder (OCD) associated
with undifferentiated somatoform disorder, asthma, and headaches that
were determined by the PEB and SAFPC to have existed prior to service
(EPTS) without service aggravation. Based on the preponderance of
evidence and accepted medical principles, the reviewer concludes that
the applicant’s OCD (with associated somatoform features) existed
prior to entry onto active military service. Evidence of record
indicates the applicant’s symptoms worsened in response to a breakup
with his girlfriend and the September 11, 2001 terrorist attacks.
Although he was ordered to active duty in the few weeks prior to
worsening of his symptoms, he was serving at his home base and there
is no evidence in the record that indicates there was any aspect of
his military duties that directly or permanently contributed to the
exacerbation of his symptoms. His headaches were a manifestation of
his underlying psychological problem and were not separately
unfitting. He had a documented, pre-service history of exercise-
induced bronchial hyper-reactivity (initially diagnosed as exercise-
induced asthma, later retracted), and recurrent bronchitis. His
symptoms of chest pains and shortness of breath were due to anxiety
and not asthma. The positive methacholine bronchoprovocation test
following activation on active duty confirmed the presence of
bronchial hyper-reactivity and does not represent a new diagnosis of
asthma incurred while on active duty, or a permanent aggravation of a
preexisting condition. He states the 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 complete evaluation is at Exhibit F.
_________________________________________________________________
APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:
Applicant contends that a variety of incorrect statements need to be
addressed. He argues that the statement in the advisory “In the two
weeks before his mobilization, the applicant had apparently been
performing his annual two week tour of duty…” is incorrect as, prior
to 9/11 he was working at his state job and filling back-fill days for
the Active Guard Reserve (AGR) program. He states that once 9/11
happened, he volunteered for active duty for as long as it took. He
states he originally volunteered for a year but was counseled to not
do so as he would then be considered deployable at any time and would
be under the control of the Air Force. He chose not to volunteer for
that amount of time and became sick in the 3 to 4-week time frame
following 9/11.
Regarding the advisory’s statement “Review of available medical
records contained in the case file indicates the applicant experienced
obsessive-compulsive symptoms prior to 9/11 and had been under the
care of a psychologist for two years prior to his activation…” the
applicant contends he did see a doctor for personal reasons but not
for OCD. He states that comment is irrelevant to his case and needs
to be disregarded. He stresses he was never seen for OCD problems
prior to 9/11 nor was he ever medicated for any OCD-related problems.
The statement in the advisory “…documentation from the November 2001
hospitalization for headache with acute quadriparesis (neurological
impairment of all four extremities) concluded his symptoms were due to
a breakup with his girlfriend and the process of buying a house and
made no mention of military activation or 9/11 as a cause for his
statements…” is incorrect and false. He is clueless as to where that
information was found as he had no problems with his girlfriend at the
time and the house-buying process went smoothly and with no problems.
Another advisory statement indicating he was interested in leaving
active duty in the ANG in order to accept another employment
opportunity in the State of XXXXXXX is incorrect and he would like to
be provided the source of that information, as he did not write that
statement. He states he never asked for demobilization, even after he
became ill.
The advisory statement that “…he reported no history of headaches
prior to September 11, 2001, however, medical documentation indicates
he experienced headaches associated with a neck condition in 2000 that
prevented him from completing a period of active duty. The headaches
were intertwined with his OCD and a familial predisposition is
indicated by a reported family history of migraines in the father…” is
totally and completely false as he was never unable to complete any
active duty training because of headaches. The documentation does
state, however, that medication for a bulged disk in his neck was
responsible for the missed training as well as a regulation that would
not let him carry a weapon while on said medication. The statement
about his father is also completely false has his father has never had
a problem with migraines, headaches, or any other illness.
In conclusion, the advisory presents obviously incorrect statements,
which definitely need to be reevaluated and assessed. The VA has
service-connected his disability and he wonders why there is so much
confusion regarding his case. He continues to suffer a life that has
turned into a nightmare because of worsening OCD problems and
migraines. His squadron and his commanders treated him unfairly as,
while on medical hold, he was forced to clean bathrooms, mop floors,
and perform a host of other janitorial duties against the
recommendations of his doctors. He was told he was faking it and
conducting a game. He was harassed by calls to his home, presumably
to make sure he was there, and was actually followed; again presumably
to make sure he was going where he said he was going. He lost pay
from the military that he was entitled to for the duration of the time
it would have taken for the military to review his case, he lost
medical benefits when his active duty orders expired, and became
unemployed, all due to his becoming sick while on active duty.
Applicant’s complete response, 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 timely filed.
3. Insufficient relevant evidence has been presented to demonstrate
the existence of error or injustice. We took notice of the
applicant's complete submission in judging the merits of the case and
sympathize with his medical situation; however, we agree with the
opinions and recommendations of the Air Force offices of primary
responsibility and adopt their rationale as the basis for our
conclusion that the applicant has not been the victim of an error or
injustice. In fact, to preclude an error or injustice and as an
exception to policy, SAFPC, after thoroughly analyzing the case file,
inputs from the member (including his taped testimony), MEB, and FPEB
and IPEB recommendations, concurred with the original MEB finding of
EPTS. Additionally, a detailed review of the record by the BCMR
Medical Consultant validated the finding of the original MEB.
Therefore, in the absence of evidence to the contrary, we find no
compelling basis to recommend granting the relief sought in 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 AFBCMR Docket Number BC-
2003-02885 in Executive Session on 27 April 2004, under the provisions
of AFI 36-2603:
Ms. Charlene M. Bradley, Panel Chair
Mr. Terry L. Scott, Member
Ms. Mr. James W. Russell, III, Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 19 Aug 03, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, AFPC/DPPD, dated 1 Mar 04, w/atchs.
Exhibit D. Letter, SAF/MRBR, dated 5 Mar 04.
Exhibit E. Letter, Applicant, dated 11 Mar 04.
Exhibit F. Letter, Medical Consultant, dated 2 Jun 04.
Exhibit G. Letter, Applicant, dated 24 Jun 04, w/atchs.
CHARLENE M. BRADLEY
Panel Chair
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