RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-03382
            INDEX NUMBER:  108.00
      XXXXXXX    COUNSEL:  None

      XXXXXXX    HEARING DESIRED:  Yes

_________________________________________________________________

APPLICANT REQUESTS THAT:

He be granted service connection and compensation for  his  diagnosis
of diabetes mellitus based on the  Department  of  Veterans  Affairs’
(DVA) determination that it is service connected.

The twenty years of satisfactory service he has for  retirement  from
the Reserves be equated to twenty years of service for the purpose of
participating in the combat-related special compensation program.

_________________________________________________________________

APPLICANT CONTENDS THAT:

It is unjust not to have his diabetes mellitus  declared  as  service
connected because the basis used by the Air Force to not consider  it
service connected is the same as  that  used  by  the  DVA  in  their
determination that it  is.   In  support  of  his  appeal,  applicant
provides a copy of the medical paperwork  showing  his  diagnosis  of
diabetes mellitus requiring insulin and coronary heart  disease,  his
medical disqualification and the ARPC/SG’s decision that he should be
administratively discharged for medical reasons, and the DVA’s rating
decision regarding his illness.

In support of his request for  participation  in  the  CRSC  program,
applicant provides a copy of his application for participation in the
program.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant entered active duty on 30 Sep 66.  His service included
a tour of duty  in  the  Republic  of  Vietnam.   The  applicant  was
discharged from active duty on 15 Aug 71 after  resigning  to  attend
school.  The applicant then transferred to the Air Force Reserve.  On
8 Mar 94, after reviewing  the  results  of  a  physical  examination
conducted on the applicant, the  ARPC  Surgeon  found  the  applicant
medically disqualified for continued military service due to Coronary
Artery Disease and  Diabetes  Mellitus  requiring  insulin.   It  was
recommended that the applicant be discharged according to AFR  35-41,
Vol III and that he was not eligible for disability  processing.   On
25 Apr 94, the ARPC Director of Personnel notified the applicant that
the ARPC Commander had initiated action to determine if he should  be
discharged from his appointment as an Air Force Reserve officer.  The
applicant acknowledged receipt on 2 May 94 and did not submit further
documentation.  On 27 Jun 94, the  Physical  Disqualification  Review
Board  considered  the  applicant’s  case  and  determined  that  the
applicant’s medical disqualification had been made by the appropriate
surgeon in  accordance  with  the  pertinent  directive.   The  board
recommended that  the  applicant  be  discharged  with  an  honorable
characterization of  service.   On    23  Sep  94,  the  Director  of
Personnel notified the applicant of the board’s recommendation.   The
applicant was also advised of his  eligibility  to  transfer  to  the
Retired Reserve.  On 18 Nov 94, the applicant was transferred to  the
Retired Reserve effective 31 Dec 96 with eligibility for retired  pay
when he attains age 60.

_________________________________________________________________

AIR FORCE EVALUATION:

ARPC/SG recommends denial of the applicant’s requests.   In  Jan  04,
the applicant was granted compensation under CRSC, so that  issue  no
longer exists.  At the time the applicant transferred to the  Retired
Reserve, his medical condition negated his remaining in service.   He
was appropriately processed under conditions for  continued  military
service.  Insulin dependent diabetes was and is  not  waiverable  for
worldwide duty and is disqualifying.

The complete evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his response to the  ARPC/SG  evaluation,  applicant  states  that
their statement of his requested action, “change the discharge action
from administrative separation  for  medical  reasons  to  disability
retirement,”  was  not  specifically  what  he  is  requesting.   His
continuing request is  that  the  ARPC/SG  action  be  modified  from
administrative  separation  without  compensation  to  administrative
separation with compensation, specifically  his  earned  compensation
and benefits.  The applicant states that it is not his position  that
the ARPC/SG erred in  determining  that  he  suffered  from  diabetes
mellitus and coronary artery  disease  but  that  the  ARPC/SG  acted
perfunctorily and without logic to determine there  was  a  basis  to
order an administrative discharge  without  compensation.   Applicant
notes that with the exception of his initial medical examination,  he
always  noted  the  medical  condition  of  diabetes  mellitus.    He
discusses the timeline of his medical diagnoses.  Applicant states he
is aware of a fellow ROTC cadet from  undergraduate  school  who  was
diagnosed with diabetes mellitus during the time frame covered by his
action, but was allowed to remain on active duty with the  Air  Force
until a proper  retirement  time  without  administrative  separation
without compensation or the threat thereof.

Applicant discusses the DVA’s  determination  regarding  his  medical
condition.  He opines that ARPC/SG  fails  to  give  recognition  and
acceptance of the full effect of the DVA’s  determination.   The  DVA
presumes service connection of diabetes mellitus diagnosed after  the
fact of service in the Republic of  Vietnam.   The  Air  Force  as  a
subsidiary of the US Government is bound by  its  determinations  and
actions.  Applicant further indicates  that  the  evaluation  totally
ignores the genesis of his application and fails to give  recognition
to his service in the Republic of Vietnam during  1969  and  1970  on
military  orders  from  the  Air  Force.   It  also  fails  to   give
recognition to his time spent in the Ready Reserve  and  accumulation
of the time  specified  for  Air  Force  compensation  and  benefits.
Lastly, it seeks to ignore the Congressional  mandates  of  fairness,
justness, and equity in  recognition  of  each  of  these  identified
decisions.

The applicant discusses what he  considers  ARPC/SG’s  “authentically
contemptuous denial” of his service to the United States and the  Air
Force by referring to him  as  a  civilian,  i.e.,  “Mr.”   Applicant
opines that this intentional act of  omission  and  commission  gives
notice that it denies the applicant recognition of the proper,  fair,
just and equitable application of rules, regulations and policies due
all members of the US Air Force.  The applicant offers  seven  issues
that must be considered to explore the relevant facts of his case:

        1.  That he was ordered by the Air Force  to  perform  duties
via military orders in the Republic of Vietnam.

        2.  A workday was literally 24 hours a day,  seven  days  per
week.

        3.  The use by relevant authorities of chemical  agents  such
as Agent Orange and other herbicides, which have been  determined  to
cause illness, of which diabetes mellitus is  an  identified  medical
condition.

        4.  Whether he was in the theater of military operations at a
time when  the  identified  agents  causing  diabetes  mellitus  were
employed by military authorities.

        5.  His service to the Air Force in the Republic  of  Vietnam
from I Corps in the North to IV Corps in the South, inclusive of  the
Central Highlands.

        6.  The character of his service resulting in  the  award  of
the Bronze Star Medal.

        7.  Elimination of any  and  all  other  causes  of  diabetes
mellitus from his medical history.

The applicant states that ARPC/SG can fulfill its duties by adherence
to the determinations of the DVA in regard to the causes of  diabetes
mellitus based, in part, on  studies  conducted  by  the  Air  Force.
Applicant discusses the Air Force’s determination  that  his  illness
was not in line of  duty  and  states  that  ARPC/SG  has  failed  to
eliminate any other  proximate  cause  for  his  suffering  from  the
illness of diabetes mellitus other than his service in  the  Republic
of Vietnam.  To establish  a  proximate  cause  different  from  that
established by the DVA requires more analysis by  ARPC/SG  than  that
presented in its initial decision for his  administrative  separation
and its advisory opinion.

Applicant addresses the issue of his request  for  CRSC.   He  states
that the issue  has  not  been  resolved  as  indicated  by  ARPC/SG.
Applicant discusses paperwork he received  indicating  that  payments
would be made directly to his bank account.  To date, he states  that
he has not received payment.

The applicant’s complete response, with attachments, is at Exhibit E.


_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

Pursuant to  the  Board’s  request,  the  AFBCMR  Medical  Consultant
provided an additional evaluation of  the  applicant’s  request.   He
recommends denial of the applicant’s request.

The military service disability systems, operating  under  Title  10,
and  the  DVA  disability  system,  operating  under  Title  38,  are
complementary systems not intended to be duplicative.   The  Military
Disability Evaluation System, established to maintain a fit and vital
fighting force, can by law under Title 10,  only  offer  compensation
for those diseases or injuries which specifically rendered  a  member
unfit for continued active service, were the cause for termination of
their career, and then only for the degree of impairment  present  at
the time of separation.  According  to  Title  10,  Chapter  61,  for
members of the Reserve Component to be  eligible  for  Department  of
Defense  (DoD)  disability  benefits,  the  impairment  must  be  the
proximate result of duty, or were incurred or aggravated in the  line
of duty while on active for more than 30 days and entitled  to  basic
pay.  The DVA operates under a separate  set  of  laws,  specifically
addresses long term medical  care,  social  support  and  educational
assistance.  The DVA is chartered to offer compensation and  care  to
all eligible veterans for any service  connected  disease  or  injury
without regard to whether it was  unfitting  for  continued  military
service.   The  DVA  is  also  empowered   to   reevaluate   veterans
periodically for the purpose of changing their disability  awards  if
their  level  of  impairment  varies  over  time.   Operating   under
different laws with a different purpose, determinations made  by  the
DoD under Title 10 and by the DVA under Title 38 are not  binding  on
the other.

The applicant’s disqualifying chronic  medical  conditions  (diabetes
and coronary artery disease) did not entitle him to consideration for
referral  into  the  Disability  Evaluation  System  for   disability
compensation.  His chronic conditions  were  not  incurred  during  a
period of active duty of more than 30 days and were not incurred as a
direct/proximate result of active duty.  Based on established medical
principles, the applicant’s diabetes is directly related to  familial
factors and obesity.  In 2001, over 6 years following the applicant’s
discharge, the DVA added Adult Onset Diabetes to the list of diseases
associated with  Agent  Orange  exposure  for  purposes  of  granting
presumptive service connected disability compensation under Title 38.

Title 38, Section 1116 is the law that provides for the DVA to  grant
service connected  disability  benefits  for  certain  diseases  that
develop after discharge that may have been the result of exposure  to
herbicides during service  in  Vietnam.   For  the  purposes  of  DVA
disability compensation,  certain  diseases  (as  identified  by  the
Institute  of  Medicine/National  Academy  of  Sciences)   are   then
“presumed” to be service connected.  Based on the conclusion  by  the
Institute of  Medicine,  National  Academy  of  Sciences  that  there
existed “limited or suggestive evidence”  of  a  link  between  Adult
Onset (Type II) Diabetes and Agent Orange and other  herbicides  used
in Vietnam, Adult Onset Diabetes was designated in  2001  as  one  of
these diseases (The DVA recognizes diseases as being associated based
on a low  threshold  for  statistical  association  that  favors  the
veteran).  Veterans do not have to prove  that  Agent  Orange  caused
their medical problems to be eligible for compensation under this law
and the VA makes the presumption of  exposure  to  Agent  Orange  for
Vietnam veterans.  Title 38 presumptions generally apply to CRSC.

The applicant’s argument that the Title 38 provision for  presumptive
service connection due to Agent Orange in DVA disability compensation
applies to all other branches of the government for all  purposes  is
not accurate.  Title 38 presumptions of service connection for  Agent
Orange do not apply to DoD disability processing under Title 10.

The complete evaluation is at Exhibit F.

_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

In his response to the additional Air Force evaluation, the applicant
states that the level of origin of the evaluation brings  into  issue
the matter of undue influence.  The applicant opines  that  the  BCMR
Medical Consultant sits in the chain of command of the Board  members
and makes his advisory opinion too great a weight for  the  applicant
to overcome.  The applicant lists six questions that he believes  the
BCMR Medical Consultant’s  advisory  raises  in  the  Board  member’s
minds.  Applicant opines that the BCMR Medical Consultant  has  taken
the role of an advocate for the ARPC/SG’s error  plagued  and  unjust
position against him rather than as a consultant to the board.  It is
his position that the additional advisory  opinion  prepared  by  the
BCMR Medical Consultant should be kept out of the Board’s proceedings
because its mere presence introduces the  element  of  undue  command
influence.

The applicant states that the issue of his CRSC payment  is  still  a
live issue for the AFBCMR to resolve and that it is necessary for the
AFBCMR to issue its opinion and order directing immediate payment  to
the applicant of all sums due him from 1 Jan 04 forward.

The applicant opines that the BCMR Medical Consultant’s reference  to
his family history and statement  that  he  has  a  long  history  of
obesity is a personal attack without logic  and  totally  misses  the
facts and issues before the  AFBCMR.   The  applicant  contrasts  the
medical issues of a member of his family who developed onset diabetes
after exposure to Agent Orange and of a member who  was  not  exposed
and  did  not  develop  onset  diabetes.   He  concludes   that   the
implications of the BCMR  Medical  Consultant’s  additional  advisory
opinion  are  without  merit.   The  applicant  also  discusses   how
treatment for diabetes  contributes  to  weight  retention  and  that
failure of the BCMR Medical Consultant to bring this to  the  Board’s
attention constitutes, at  the  least,  an  ethical  violation.   The
applicant references a study he is forwarding to the Board  sponsored
by the American Diabetes Association.

The applicant indicates that  the  BCMR  Medical  Consultant  in  his
advisory reflects a lack of understanding of a  precise  legal  term,
proximate cause.   He  discusses  how  his  service  in  Vietnam  and
exposure to  Agent  Orange  resulted  in  his  onset  diabetes.   The
applicant  also  states  that  the  additional  advisory  opinion  is
deficient in asserting  the  applicant’s  condition  must  have  been
quantified for compensation  and/or  benefits  at  the  time  of  his
separation.  He references the United States Court of Claims case  of
Walters v. United States as controlling precedent that he is entitled
to disability retirement from his date of discharge in  August  1971.
The applicant also discusses how the results  of  the  physical  exam
that led to his administrative separation verify that, as a  minimum,
he is entitled to disability retirement benefits.

The applicant’s complete submission is at Exhibit H.

_________________________________________________________________

Additional Response to Additional Air Force Evaluation:

In further support of his appeal and as part of his rebuttal  to  the
additional Air Force evaluation, the applicant submitted a copy of  a
study from the American Diabetes Association.   The  study  addresses
the  relationship  between  diabetes  insulin  treatment  and  weight
gain/retention.  The applicant believes that  this  study  makes  the
argument  of  the  BCMR  Medical  Consultant  regarding   his   being
overweight moot.

The applicant’s complete submission, with attachment, is  at  Exhibit
I.

_________________________________________________________________

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  error  or  injustice.   We  took  notice  of  the
applicant's complete submission in judging the merits  of  the  case;
however, we agree with the opinion  and  recommendation  of  the  Air
Force offices of primary responsibility and adopt  its  rationale  as
the primary basis for our conclusion that the applicant has not  been
the victim of  an  error  or  injustice.   We  note  the  applicant’s
allegations of undue command  influence  on  the  part  of  the  BCMR
Medical  Consultant.   However,  it  appears  that  the   applicant’s
concerns are  based  on  a  lack  of  understanding  of  the  Board’s
organizational structure, which makes the  type  of  undue  influence
alleged by  the  applicant  impossible.   Regarding  the  applicant’s
request for payment of CRSC benefits he has  been  approved  for,  we
have been advised by AFPC/DPPD/CRSC  that  the  letter  sent  to  the
applicant, dated     12  Feb  04,  advising  him  to  expect  payment
beginning 60 days from his receipt of the letter  was  in  error  and
should have advised him that his payments would not  begin  until  he
reaches age 60.   Therefore,  in  the  absence  of  evidence  to  the
contrary, 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   issues   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 Docket Number  BC-2003-
03382 in Executive Session on 1  and  9  September  2004,  under  the
provisions of AFI 36-2603:

      Mr. Thomas S. Markiewicz, Chair
      Mr. John E.B. Smith, Member
      Ms. Kathy L. Boockholdt, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 3 Oct 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, ARPC/SG, dated 7 Jun 04.
    Exhibit D.  Letter, SAF/MRBR, dated 11 Jun 04.
    Exhibit E.  Letter, Applicant, dated 18 Jun 04, w/atchs.
    Exhibit F.  Memorandum, BCMR Medical Consultant,
                dated 22 Jul 04.
    Exhibit G.  Letter, AFBCMR, dated 27 Jul 04.
    Exhibit H.  Letter, Applicant dated 25 Aug 04.
    Exhibit I.  Letter, Applicant, dated 27 Aug 04, w/atch.




                                   THOMAS S. MARKIEWICZ
                                   Chair