RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-00025
            INDEX CODE:  108.00

            COUNSEL:  NONE

            HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  3 JUNE 2006

_________________________________________________________________

APPLICANT REQUESTS THAT:

He be awarded a disability retirement.

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APPLICANT CONTENDS THAT:

In October 1969, he was injured in a fall from a CH-3 helicopter.   At  that
time he was a pararescue  technician  participating  in  a  rescue  mission.
Permanent pain from his injuries did not appear until 1985 (11  years  after
his retirement from the Air Force).  Over the next five years  (until  1990)
the pain increased so much  that  he  was  no  longer  able  to  work.   The
Department  of  Veterans  Affairs  (DVA)  has  awarded  him  80%  disability
compensation for pay and a combined total of  70%  for  the  fall  from  the
helicopter.

By nobody’s fault there is an injustice here and  he  feels  his  Air  Force
records should be amended to show he was injured and eventually disabled  by
the  fall  from  the  helicopter.    Disability   compensation   should   be
retroactive to June 1974, his retirement date.   If  that  is  not  possible
then the retroactive date should be January 1990 when he  became  completely
disabled to work and unemployable.

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

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STATEMENT OF FACTS:

On 10 November 1953, the applicant enlisted  in  the  Regular  Army  in  the
grade of private and on 31 October 1956 he was honorably discharged  in  the
grade of private second class, under the provisions of AR  635-205  -  Early
Separation (Transferred to the Army Reserves).

On 26 November 1956, the applicant enlisted in the Regular Air Force in  the
grade of airman first class.

SF Form 88, Report of Medical Examination -  for  annual  flying  class  II,
dated 23 October 1973 indicates the applicant was  medically  qualified  for
flying class II.

SF Form 88, Report of Medical Examination for  Retirement,  dated  18  March
1974, indicates the applicant denied any  significant  medical  or  surgical
history since his last medical examination.

The applicant’s performance reports indicates from 1  June  1968  through  6
February 1973 he received overall evaluations of 9.  The performance  report
closing 6 February 1974 reflects an overall rating of 7.

On 1 July 1974, the applicant retired in the grade  of  technical  sergeant.
He served 20 years, 6 months, and 26 days of total active military service.

A Department of Veterans Affairs Rating Decision,  dated  24 February  2004,
indicates the following:

      1. Service connection for colon cancer claimed as due to  agent-orange
exposure was denied.

      2. Service connection for vascular  circulatory  problems  claimed  as
due to cigarette smoking was denied.

      3. Entitlement to individual unemployability was granted effective  11
September 2001.

       4.  Basic  eligibility  to  Dependents’  Educational  Assistance  was
established from 11 September 2001.

On 2 June 2004, the Air Force  Board  for  Correction  of  Military  Records
(AFBCMR) advised the  applicant  that  since  it  appeared  he  was  seeking
benefits under Combat-Related Special  Compensation  (CRSC),  his  case  was
being  returned  to  the  Air  Force  Personnel   Center   (AFPC),   for   a
determination regarding that issue and his case was closed  administratively
(Exhibit D).

On 12 July 2004, AFPC/DPPDC notified the applicant that his application  for
CRSC was approved.  They indicated in making this  decision,  the  following
determinations  were  made  regarding  his  disability:  combat  related   -
impaired hearing (10% disability) and  non  combat-related  -  spinal  disc-
condition (60% disability), hemorrhoids  (10%  disability).   The  applicant
stated in his application he fell from a helicopter.   His  service  medical
records do note an incident in 1969; however,  his  only  injury  was  chest
pain.

The remaining relevant facts pertaining to this application, extracted  from
the applicant's military records, are contained in the letters  prepared  by
the appropriate offices of the Air Force (Exhibits C, E, & G).

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPD recommended  denial  indicating  the  applicant’s  medical  record
included a copy of his retirement medical examination conducted on 18  March
1974.  The medical examination does not appear  to  indicate  the  applicant
was having a serious or life threatening medical problem  severe  enough  to
warrant the initiation of a Medical Evaluation Board (MEB) through  military
disability channels.  In fact, his retirement medical examination  reflected
him as qualified  for  worldwide  service  with  no  disqualifying  physical
profiles.  A review of his last performance report shows he  was  reasonably
capable of performing his military duties as  the  Non-Commissioned  Officer
in Charge (NCOIC) of the Pararescue Section; however, his off-duty  behavior
was scrutinized by his commander.   A  member’s  ability  to  perform  their
military  duties  is  one  of  the  main   concerns   when   considering   a
servicemember for a disability discharge/retirement under the provisions  of
AFM 35-4.

Medical records show the servicemember was treated  for  various  conditions
while on active duty.  The mere fact that a person  may  have  been  treated
for a medical  condition  does  not  automatically  mean  the  condition  is
unfitting for continued military service.   To  be  unfitting,  the  medical
condition must  be  such  that  it  by  itself  precludes  the  person  from
fulfilling the purpose for which he or she  is  employed.   USAF  disability
boards  can  only  rate  unfitting  medical  conditions   based   upon   the
individual’s medical status at the time of their evaluation;  in  essence  a
snapshot of the condition at that time.   If  a  Physical  Evaluation  Board
(PEB)  renders  a  finding  of  unfit,  federal  law  provides   appropriate
compensation due to  the  premature  termination  of  the  member’s  career.
Compensation for unfitting  medical  conditions  while  on  active  duty  is
authorized under the provisions of Title 10, United States Code  (USC).   To
qualify for a disability retirement, the servicemember  would  have  had  to
attain a serious or life threatening medical condition prior to his  release
from active duty.  Records fail to show this to be the case in question.

The applicant’s case file revealed no errors or  irregularities  during  his
retirement process that would justify a  change  to  his  military  records.
The  preponderance  of  evidence  provided  by  the   applicant   does   not
substantiate or support his request for a  disability  retirement.   He  has
not submitted any material or documentation to show an  error  or  injustice
occurred at the time of his voluntary retirement.

The evaluation is at Exhibit C.

AFPC/DPPD  reviewed  this  case  a  second  time  and   recommended   denial
indicating the  Combat  Related  Special  Compensation  (CRSC)  program  was
established to provide compensation to certain retirees with  Combat-Related
disabilities that qualify under the criteria set forth in  Public  Law  107-
314.  If the veteran fails to satisfy  the  preliminary  CRSC  criteria,  no
further consideration by  their  service  department  is  required  and  the
application will be denied accordingly.

If the veteran satisfies the preliminary CRSC criteria, the  application  is
reviewed  for  combat  related  determination.   In  order  to  determine  a
disability is combat-related, there must be objective  documentary  evidence
that the disability is the direct result of a  combat  event  or  events  or
performance of duty simulating war or caused  by  hazardous  service  or  an
instrumentality of war.  In addition, there are other  conditions  that  are
considered presumptive of Agent Orange, Radiation, Mustard Gas, or  Prisoner
of War (POW) internment by the Department of Veteran’s Affairs  (VA),  which
also qualify for CRSC.

Beginning in June 2003, the program allowed compensation payments to  active
duty personnel and reservists with 7200 or more points,  if  the  individual
had disability rating(s) of at least 60%  that  were  combat-related,  or  a
rating of 10% or more from Purple Heart awarded injuries.  In January  2004,
the criterion was lowered across the board to 10% or more disabilities  that
were combat-related.  The effective date of CRSC  compensation,  established
by law, is based on the date the program came into effect, or the  date  the
individual began receiving Department of Veterans Affairs (VA)  compensation
for the approved conditions,  whichever  is  later.   In  the  case  of  the
applicant, he did not meet basic program  parameters  until  December  2003,
when his combat-related disabilities were rated at  60%  and  the  VA  began
offsetting his retired pay for that amount.

They recommend denial of  the  applicant’s  request  for  compensation  made
retroactive to  his  retirement  date,  as  claimed  on  the  DD  Form  149,
Application for Correction of Military Record under the provisions of  Title
10, United States Code, Section 1552.  This  does  not  meet  the  mandatory
criteria for compensation under the  CRSC  program  as  outlined  under  the
provisions of Public Law 107-314.

The evaluation, with attachment, is at Exhibit E.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 25 February 2005, copies of the Air Force evaluations were  forwarded  to
the applicant for review and response within 30 days  (Exhibit  F).   As  of
this date, no response has been received by this office.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

The BCMR Medical Consultant recommended denial  indicating  the  applicant’s
original  AFBCMR  application  appeared  to  be  in  conjunction  with   his
application for compensation under the CRSC Program.  The  applicant’s  case
file was forwarded to the  Air  Force  CRSC  Board  and  the  applicant  was
granted CRSC  for  his  service-connected  disabilities.   It  appeared  the
applicant was under the impression that a  disability  retirement  from  the
Air Force was necessary in order to be eligible for CRSC; however,  this  is
not the case.

A review of the applicant’s service personnel and  service  medical  records
indicate he voluntarily retired for length of service and did not  have  any
medical condition that warranted referral for disability evaluation  at  the
time of his retirement.

Department  of  Veterans  Affairs  documentation  indicates  the   applicant
developed colon cancer in the years following his retirement.  The  DVA  had
denied the applicant’s claim for service connection  based  on  exposure  to
Agent Orange while in Vietnam.  Colon cancer is not a  condition  recognized
by the Institute of Medicine as having  any  association  with  exposure  to
herbicides (in particular dioxin) and is not a condition  that  qualifies  a
veteran for service connection under provisions of Title 38 for  presumptive
service connection due to exposure to herbicides in Vietnam.

Action and disposition in this case  are  proper  and  equitable  reflecting
compliance with Air Force directives that implement the law.

The evaluation is at Exhibit G.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 22 April 2005, a copy of the Air Force evaluation was  forwarded  to  the
applicant for review and response within 30 days (Exhibit H).   As  of  this
date, no response has been received by this office.

_________________________________________________________________


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 an  error  or  injustice.   After  reviewing  the  evidence  of
record, we are convinced the applicant’s separation from the Air  Force  was
in accordance with Air  Force  policy.   His  contentions  are  duly  noted;
however, in our opinion,  the  detailed  comments  provided  by  the  AFBCMR
Medical Consultant adequately address these allegations.  Therefore, we  are
in agreement with the comments and recommendation of the Medical  Consultant
and adopt his rationale as the basis for our  decision  that  the  applicant
has not been the victim of either an error or injustice.  In  this  respect,
the applicant’s service personnel and service medical  records  indicate  he
voluntarily retired for length of service and  that  he  did  not  have  any
medical condition that warranted referral for  a  disability  evaluation  at
the time of his retirement.  In view of the above  and  in  the  absence  of
evidence to the  contrary,  we  find  no  compelling  basis  upon  which  to
recommend favorable action on this application.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified the evidence presented  did  not  demonstrate  the
existence of an error or injustice; the application  was  denied  without  a
personal appearance; and 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 14 September 2005, under the provisions of AFI 36-2603:

                 Ms. Kathleen F. Graham, Panel Chair
                 Ms. Kathy L. Boockholdt, Member
                 Mr. Wallace F. Beard, Jr., Member






The following documentary evidence pertaining to AFBCMR  Docket  Number  BC-
2004-00025 was considered:

   Exhibit A.  DD Form 149, dated 29 December 2003.
   Exhibit B.  Master Personnel Records.
   Exhibit C.  Letter, AFPC/DPPD, dated 11 February 2004.
   Exhibit D.  Letter, AFBCMR, dated 2 June 2004.
   Exhibit E.  Letter, AFPC/DPPD, dated 17 February 2005, w/atch.
   Exhibit F.  Letter, AFBCMR, dated 25 February 2005.
   Exhibit G.  Letter, BCMR Medical Consultant,
                    dated 18 April 2005.
   Exhibit H.  Letter, AFBCMR, dated 22 April 2005, w/atch.




                       KATHLEEN F. GRAHAM
                       Panel Chair