RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-02671
            INDEX CODE:  108.00

            COUNSEL:  NONE

            HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  30 Feb 06

_________________________________________________________________

APPLICANT REQUESTS THAT:

By amendment, his  records  be  corrected  to  reflect  his  permanent
retirement by reason of physical disability.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was discharged from active duty without due process, and he was not
allowed personal access to the medical and/or review boards  decisions
while on active duty.

In support of his appeal, the applicant provided  personal  statements
and documentation from his military personnel records.

By letter, dated 21 Sep 04, the applicant provided an amended  request
for correction of his military records, requesting that his records be
corrected to reflect his permanent retirement by  reason  of  physical
disability, and he provided additional documentation for  the  Board’s
consideration.

Applicant’s complete submissions, with attachments, are at  Exhibits A
and C.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant’s  available  military  personnel   records   indicate   the
applicant enlisted in the Regular Air Force on 25 Jan 62 for a  period
of four years in the grade of airman basic.  He  was  retained  beyond
his  expiration  term  of  service  (ETS)  of  24  Jan   66   due   to
hospitalization.

On  13  Jun  66,  a  Medical  Evaluation  Board  (MEB)  convened   and
established  a  diagnosis  of  spontaneous   pneumothrax.    The   MEB
recommended the applicant be returned to duty.

Applicant was honorably released from active duty on 30 Jun  66  under
the provisions of AFR 39-10 (Separation - Expiration of Term of Active
Obligated Service) in the grade of airman first class and  transferred
to the Air Force Reserve.  He  was  credited  with  four  years,  five
months, and six days of active service.   The  terminal  date  of  his
Reserve obligation was 24 Jan 68.

On 28 Sep 66, he was notified by  the  Air  Reserve  Personnel  Center
(ARPC) that he had been medically disqualified by appropriate  medical
reviewing authority  for  General  Military  Service  because  of  his
diagnosis of spontaneous pneumothorax.

On 18 Oct 66, the applicant was officially notified  that  action  had
been initiated to determine whether or not  he  should  be  discharged
from his enlistment as a Reserve airman.

On 25 Jan 67,  an  Air  Force  Reserve  Disposition  Board  found  the
applicant was medically disqualified for active  military  service  or
for active military service with  a  waiver,  and  recommended  he  be
honorably discharged from his Reserve enlisted status  in  the  United
States Air Force.

On 16 Mar 67, the applicant  was  relieved  from  his  assignment  and
honorably discharged from the Air Force Reserve.

The remaining  relevant  facts  pertaining  to  this  application  are
contained in the letter prepared by the Medical Consultant.

_________________________________________________________________

AIR FORCE EVALUATION:

The Medical Consultant recommended denial  noting  the  applicant  was
retained on active duty past his established  date  of  expiration  of
term of obligated active service in order to  complete  treatment  and
convalescence for recurrent pneumothorax. After recovery from  surgery
he was shown to be without symptoms of shortness of  breath  or  chest
pain, demonstrated normal lung function, and  had  a  normal  physical
examination consistent with an  absence  of  occupational  impairment.
Prior to release from active duty, the applicant underwent an MEB that
determined he was fit for continued  military  service  in  accordance
with  medical  standards   (AFR   35-4)   that   indicated   recurrent
pneumothorax successfully corrected  by  surgery  was  not  considered
unfitting for continued military service.  According  to  the  Medical
Consultant, a return  to  duty  determination  is  not  considered  an
adverse determination that a member may appeal since it does not cut a
member's career short.  By today's regulations, policy and  procedure,
a member similarly placed on medical hold for  surgical  treatment  of
recurrent spontaneous pneumothorax who also fully recovers, would also
be returned to duty and allowed to separate.  Active duty members with
this condition without a scheduled separation would continue to  serve
on active duty and even members performing flying duties may  be  able
to return to flying duties with a  waiver  if  underlying  causes  are
corrected without  recurrence.   The  evidence  of  record  shows  the
applicant was properly evaluated by the MEB and returned  to  duty  in
the Regular Air Force  in  accordance  with  policy  and  regulations.
There is no evidence the applicant desired to remain on active duty in
the Air Force or  attempted  to  reenlist  prior  to  his  separation.
A review of his service medical records  disclosed  no  other  medical
condition that warranted consideration in  the  Disability  Evaluation
System (DES).

Once the applicant separated and was  transferred  to  the  Air  Force
Reserve, his status changed from being a member of the active  Regular
Air Force, to being a member of the Inactive Reserves, a civilian  who
could be called to active duty  if  qualified  and  needed.   When  he
became a member of the Inactive Reserves, medical standards in AFM 160-
1, Medical Examination and Medical Standards, applied to him.  AFM 160-
1, Paragraph 1.c. (2), stipulates that AFM 160-1  standards  apply  to
members of the Air Force Reserve when they enter active duty.  Because
the reason for the Reserves is  to  be  called  to  active  duty  when
needed, these medical standards applied to members in Reserve  status.
Also, AFR 45-43, paragraph 19, stipulates  specifically  that  medical
standards in AFM 160-1 apply.  Medical standards  in  AFM 160-1  state
that  there  must  be  a  period  of  two  years  with  no   recurrent
pneumothorax following corrective surgery (Chapter 5,  paragraph  76);
therefore, the applicant was medically disqualified since it had  been
less than one year since his surgery.  This two-year period is due  to
the fact that individuals who have shown recurrent pneumothorax are at
increased risk for further recurrences.  Even though  there  has  been
surgery on one side to prevent recurrence on that side, there is still
a remaining increased risk for occurrence on the previously unaffected
side.  Furthermore, the applicant was  shown  to  have  an  underlying
abnormality causing pneumothorax, pulmonary blebs.  Medical  standards
to retain members already on active  duty  accept  a  slightly  higher
medical risk than standards for accession or re-accession.   The  two-
year period of observation during which he would be disqualified would
have taken him to  the  established  date  of  his  obligated  Reserve
service, thus further  retention  in  the  Reserves  was  unnecessary.
Evidence of the record clearly shows evidence of due process  afforded
to the applicant by the Air  Force  Reserve.   Although  he  requested
review by the Air Force Disposition Board and was  afforded  appointed
counsel, he submitted no request or statements on his own  behalf.   A
review of his case by the Disposition Board, which included a  medical
member, resulted in his discharge from the  Reserves  due  to  medical
disqualification.

The Medical Consultant noted that following his  separation  from  the
Air Force,  the  applicant  was  granted  service  connection  by  the
Department of Veterans Affairs  (DVA)  for  residuals  of  spontaneous
pneumothorax  rated  at  10  percent  from  1 Jul 66.    A DVA  Rating
Decision, dated 5 Aug 04, shows continuation of the 10 percent  rating
for residuals of  spontaneous  pneumothorax.  A DVA  compensation  and
pension examination, dated 25 Jun 04, states  the  applicant  has  not
experienced any recurrence of his spontaneous  pneumothorax  following
surgery in Jan 66 and has remained entirely asymptomatic.

The Medical Consultant indicated that the fact the applicant has  been
granted service-connected disability from the DVA does not entitle the
applicant to Air Force disability compensation.  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.  Operating under  different  laws  with  a
different purpose, determinations made by the  Department  of  Defense
(DoD) under Title 10 and the DVA under Title 38 are not  determinative
or binding on decisions made by the other.  The mere fact the DVA  may
grant service-connected compensation ratings following  separation  or
retirement does not establish eligibility for similar action from  the
Air Force.  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  disease   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.   For  an
individual to be considered unfit for military service, there must  be
a medical condition that prevents performance of any work commensurate
with rank and experience.

When members transition from active service in the Regular  Air  Force
to the Reserves (Ready or Inactive), the change in status is  attended
by a change in the applicable laws and regulations.  Unless performing
inactive duty training or on active duty  in  receipt  of  basic  pay,
members  of  the  Reserves  are  in  civilian  status.   Although  the
applicant's medical condition was not unfitting for  continued  active
service in the Regular Air Force under medical standards for continued
active service, it was  determined  by  competent  Air  Force  Reserve
medical authority to be disqualifying for membership in  the  Reserves
under slightly more stringent medical standards that  applied  in  his
new status.  Because the condition was not incurred or  aggravated  by
Reserve duty (inactive or active) while a member of the Reserves,  the
condition was not compensable even though  it  is  service  connected.
Two years after the surgery,  the  applicant  would  have  again  been
medically qualified for military service.

In the Medical Consultant’s opinion, the  action  and  disposition  in
this case were proper and equitable  reflecting  compliance  with  Air
Force directives that implement the law, and that  no  change  in  the
records is warranted.

A complete copy of the Medical Consultant’s evaluation is  at  Exhibit
D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant reviewed the  advisory  opinion  and  furnished  a  response
indicating  the  Medical  Consultant’s  advisory   opinion   contained
factually incorrect comments when it indicated he voluntarily extended
his term of service beyond 24 Jan 66.  He was not  privileged  to  any
medical (or other) decisions made (for him) by the Air Force prior  to
3 Jan 66 and thereafter leading to his separation for the  convenience
of the government.  He also indicated the advisory did not express any
personal findings or the comments of his surgeon, who  stated  he  was
under military orders not  to  inform  him  of  his  options,  and  he
reiterated he was not afforded due process.

Applicant’s complete response, with attachment, is at Exhibit F.

_________________________________________________________________

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.   The  applicant's  complete
submission was thoroughly  reviewed  and  his  contentions  were  duly
noted.  However, we do not find  the  applicant’s  assertions  or  his
supporting  documentation  sufficiently  persuasive  to  override  the
rationale provided by the Medical Consultant.  The evidence of  record
indicates that after  being  diagnosed  and  treated  for  spontaneous
pneumothrax, the applicant was honorably released from active duty and
transferred to the Air Force  Reserve.   Subsequently,  he  was  found
medically disqualified for continued service and honorably  discharged
from the Air Force Reserve.  No  evidence  has  been  presented  which
shows to our satisfaction that at the time of his release from  active
duty, the applicant was unfit to perform the duties of  his  rank  and
office within the meaning of the law.  Nor do  we  find  any  evidence
that convinces us the information used as  a  basis  for  his  medical
disqualification for continued service in the Air  Force  Reserve  was
erroneous.  In view of the foregoing, and in the absence of sufficient
evidence to the contrary, we agree  with  the  recommendation  of  the
Medical Consultant and adopt  his  rationale  as  the  basis  for  our
decision that the applicant  has  failed  to  sustain  his  burden  of
establishing  he  has  suffered  either  an  error  or  an  injustice.
Accordingly, 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-
2004-02671 in Executive Session on 20 Oct 05, under the provisions  of
AFI 36-2603:

      Ms. Kathleen F. Graham, Panel Chair
      Mr. James A. Wolffe, Member
      Ms. Kathy L. Boockholdt, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 27 Aug 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, applicant, dated 21 Sep 04, w/atchs.
    Exhibit D.  Letter, Medical Consultant, dated 15 Sep 05.
    Exhibit E.  Letter, SAF/MRBR, dated 16 Sep 05.
    Exhibit F.  Letter, applicant, dated 28 Sep 05, w/atch.




                                   KATHLEEN F. GRAHAM
                                   Panel Chair