RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-01872
            INDEX NUMBER:  108.00
      XXXXXXX    COUNSEL:  None

      XXXXXXX    HEARING DESIRED:  No


MANDATORY CASE COMPLETION DATE:  9 Dec 06


_________________________________________________________________

APPLICANT REQUESTS THAT:

He be allowed to retire according to the contract he entered into or,
in the alternative, receive immediate, full medical retirement  based
on the injuries he suffered while deployed  to  Iraq  in  support  of
Operation Iraqi Freedom.

_________________________________________________________________

APPLICANT CONTENDS THAT:

At the time of his discharge, he had 19 years of good service and had
a total of 4,141 points.  If he had been active duty, the  Air  Force
would have found a job to accommodate his injuries for the next  year
and then let him retire.  However, as a member of  the  Air  National
Guard, his injuries disqualified him from world-wide deployments,  so
his unit “just got rid of him.”  He could have set out one  year  and
then retired with a good 20.

In support of his appeal, the applicant submits a copy of a  line  of
duty determination, copies of documents from his medical records, and
a copy of the results of  a  Physical  Evaluation  Board  (PEB)  that
recommended he be discharged with severance  pay  with  a  disability
rating of 20 percent.

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

_________________________________________________________________

STATEMENT OF FACTS:

The  applicant  served  on  active  duty  in  the  Air  Force  as   a
telecommunications control specialist from March 22, 1973  to  August
21, 1979 (6 years and 5 months).  After a seven  and  one  half  year
break in service, the applicant enlisted in the Army  National  Guard
in February 1987.  In the 1988 he transferred  to  the  Air  National
Guard and served until September  1991.   After  a  second  break  in
service from September 1991 to May 1995, he  reenlisted  in  the  Air
National Guard May 6, 1995 and served initially as a medical  service
technician, and then cross trained in 2000 as an aerospace propulsion
apprentice.  The applicant  was  called  to  active  duty  for  Iraqi
Enduring Freedom and was deployed to Saudi Arabia March 12, 2003  and
was returned early from deployment due to sinus problems and symptoms
of obstructive  sleep  apnea.   After  his  return  he  was  formally
diagnosed with obstructive  sleep  apnea  and  underwent  surgery  to
correct the underlying anatomic  abnormalities  associated  with  the
condition.  He was returned to full duty after recovery from  surgery
and apparent resolution of his symptoms.  He was re-deployed to  Iraq
from  December  3,  2003  to  January  18,  2004  without  documented
problems.  In February 2004 he presented to his physician complaining
of recurred symptoms of  obstructive  sleep  apnea  and  underwent  a
repeat sleep study showing continued episodes  of  obstructive  apnea
while asleep that were resolved by application of continuous positive
airway pressure (CPAP via CPAP device).  Because  of  his  particular
specialty  the  requirement  for  the  CPAP  device  was   considered
disqualifying for deployment since a reliable source  of  electricity
could not be guaranteed  in  sleeping  quarters  under  all  deployed
conditions.  The applicant was  referred  for  a  Medical  Evaluation
Board  in  Jun  04,  which  referred  him  to  an  Informal  Physical
Evaluation Board (IPEB).  In addition to the obstructive sleep  apnea
syndrome, the IPEB also  considered  foot  pain  that  the  applicant
sought care for while on active duty.  The IPEB found  the  applicant
unfit for world wide duty due to his  conditions  and  concluded  the
obstructive sleep apnea syndrome existed prior to service and was not
permanently aggravated by service beyond the natural history  of  the
condition.  The IPEB concluded his foot  condition  was  ratable  and
compensable and rated his foot condition 10 percent  and  recommended
disability discharge with severance pay.  The applicant  subsequently
appealed to the Secretary of the  Air  Force  Personnel  Council  who
adjudicated a 10 percent rating for each foot for a  combined  rating
of 20 percent.  The  applicant  was  discharged  with  severance  pay
effective 28 Jan 05.

_________________________________________________________________

AIR FORCE EVALUATION:

The BCMR Medical Consultant  recommends  denial  of  the  applicant’s
request.  The preponderance of evidence shows  the  applicant’s  foot
pain was properly rated at ten percent for each foot.  Although  some
evidence of the record suggest the condition may have  existed  prior
to service, the Physical Evaluation Boards (PEBs) gave the  applicant
the benefit of the doubt.

The original condition that caused the applicant’s referral into  the
Disability Evaluation System  (DES),  obstructive  sleep  apnea,  was
determined to have existed  prior  to  service  and  not  permanently
aggravated by service beyond the natural  course  of  the  condition.
The  applicant  requests  change  of  records  to   show   disability
retirement contending his sleep apnea  should  have  been  rated  and
compensated by the Air  Force  Physical  Evaluation  Boards  and,  in
addition, that  his  meralgia  paresthetica  warranted  a  disability
rating and compensation.

The applicant was found unfit due to the requirement  for  use  of  a
CPAP device for his obstructive sleep apnea and bilateral heel  pain.
The  applicant’s  meralgia  paresthetica  was  not  unfitting.   This
condition,  while   uncomfortable,   rarely   produces   occupational
disability.  The  evidence  of  record  shows  that  the  applicant’s
condition was intermittent, did not require  specific  therapy  other
than weight loss, and did not interfere with his performance of duty.

The Air Force Physical Evaluation Boards  concluded  the  applicant’s
sleep apnea was not  incurred  or  aggravated  by  service  and  was,
therefore, not ratable or compensable.  The  Department  of  Veterans
Affairs similarly concluded  the  applicant’s  sleep  apnea  was  not
service connected.

The complete evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his response to the Air Force evaluation, the applicant states  he
was involuntarily mobilized and placed on active duty with his  Guard
unit in Mar 03.  His first deployment was  to  Saudi  Arabia.   After
arriving  in  Saudi  Arabia,  they  were  inundated  with  tremendous
sandstorms.  He states they were never issued any personal protective
equipment to deal with or protect themselves from the storms.   After
his third month in country, he was medically evacuated due to  severe
complications to his Obstructive Sleep Apnea (OSA), sinuses, and  the
structures in his throat.  He was evacuated to Germany to be  further
evaluated by an ear, nose, and throat specialist, who recommended  he
be returned to his home station to undergo  Uvulopalatopharyngoplasty
(UPPP) surgery.  After the surgery, he was  returned  to  duty,  this
time in Iraq.

Due to his deployment in  support  of  Operation  Iraqi  Freedom,  he
received two Line of Duty determinations (AF Form  348)  for  service
connected injuries.  After going through a lengthy Medical Evaluation
Board (MEB)/Physical Evaluation Board (PEB)  process,  he  was  found
unfit for military duty and ordered  discharged  with  severance  pay
with no option or opportunity to retire.  He has  19  years  of  good
service with no bad time.  His service consists of 9 years of  active
duty and the rest as a member of the National Guard.

He appealed the PEB’s decision to discharge  him.   No  consideration
was given to his time served or the contract and obligations  he  had
entered into with the military.  They would not hear any testimony on
his OSA and upheld the decision to discharge him.  He  then  appealed
to the Secretary  of  the  Air  Force  (SECAF),  which  responded  by
increasing the disability rating for his feet,  but  disregarded  his
retirement request.  He was requesting reconsideration of his OSA and
other injuries in order to have his rating increased to 30 percent so
he could receive a disability retirement under Title 10 as an  active
duty military member.  He was still discharged  with  severance  pay,
which he must pay back.  He believes the military may have chosen the
easiest  and  quickest  way  out.   He  concedes  that   the   normal
performance of his duties may not have been a contributing factor  to
aggravation of  his  OSA  beyond  normal  progression.   However,  he
believes  the  aggravation  is  directly  related  to  the   set   of
conditions, location and timing of  his  first  deployment  while  on
active duty with his Guard unit.  He states he was issued a  line  of
duty by his medical unit for this service connected aggravation.

The applicant states he has not tried  to  hide  his  condition  from
military authorities.  He was diagnosed with OSA around 1997 and  his
disease did not progress until Mar 03 when he was  subjected  to  the
numerous sandstorms of Saudi  Arabia.   He  states  that  the  normal
progression of OSA does not lead to surgical  intervention  and  that
his weight, as indicated in the BCMR Medical Consultant’s evaluation,
did not contribute to the normal progression of the disease.

After returning from Iraq in Jan 04, he was still having trouble with
OSA and it was subsequently determined he would need a CPAP  machine.
This is what eventually led to the MEB process.  He notes that  there
were many Guard members trying to get out of  the  mobilization.   He
notes that as a result of his “answering the call” at age 50, the two
years of service has caused him both his military retirement and  his
retirement from the United States Post  Office,  from  which  he  was
eventually fired due to the disability rating  he  received  for  his
feet.

The applicant references the case of  the  Guard  members  tried  and
convicted due to the Abu Gharaib Detention Center incident.  He notes
they were tried under the UCMJ and treated as if they were full  time
Title 10 active duty members.  Applicant states that when a Guardsman
is activated under Title 10, they are no longer associated with their
State National Guard system.  When he was activated, he was no longer
allowed or obligated to attend weekend training  meetings  or  summer
camps.  He opines that if he could face the  same  punishment  as  an
active duty member, he should be afforded  the  same  considerations,
protections and benefits as  the  active  duty.   He  states  he  was
injured in the line of duty,  while  serving  in  a  combat  zone  on
foreign soil.  He entered into a contract with  the  US  military  to
serve and defend his country for a specified period of time in return
for a fair retirement for himself and his family.  He  did  his  time
and believes it is time for the Military to honor their side  of  the
contract and award him his retirement.  The  applicant  indicates  he
believes that if he had stayed stateside  during  his  two  years  of
involuntary active duty, he would not have had any dealings with  any
military boards  and  would  still  have  both  his  jobs  and,  more
importantly, both his retirements.

In support of his appeal, applicant provides a copy of a map  showing
the occurrence of a dust storm on 25 Mar  03  in  Iraq  and  a  sheet
discussing the effects of a sandstorm on a deployed unit,  copies  of
documents showing his years of  service,  a  handout  discussing  the
adverse effects of sand storms on health, a copy of a  line  of  duty
determination, dated  18  Mar  04,  a  handout  titled  the  “Natural
Evolution of Moderate Sleep Apnea Syndrome:  Significant  Progression
Over a Mean of 17 Months, a medical  document  authorizing  his  CPAP
machine, a handout on retirement eligibility, and extracts from Title
10, US Code covering retired pay provisions.

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

_________________________________________________________________

ADDITIONAL RESPONSE FROM APPLICANT:

In response to a query from the Board regarding his eligibility for a
Reserve retirement, the applicant submitted an  additional  response.
The applicant notes that the point summary on him  available  in  the
Military Personnel Data System closes  out  as  of  5  May  04.   The
applicant indicates he was on active duty until   28 Jan 05.  He also
points out that according to the summary, his first  opportunity  for
retirement is May 06.  He states he only needs  15  months  from  the
time he was discharged to qualify for retirement.

The applicant reiterates that he has already  lost  his  Post  Office
retirement and cannot afford to lose  his  military  retirement.   He
points out that at his age and  with  his  disabilities,  he  doesn’t
believe starting over is feasible.

In further support of his appeal, applicant submits  a  copy  of  his
ANG/USAFR Point Credit Summary, a  copy  of  the  order  showing  his
discharge in Jan 05, a copy of his National Guard  Bureau  report  of
separation, a copy of a leave and earning statement, and  a  copy  of
his DD Form 214.

_________________________________________________________________

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;
however, we agree with the BCMR  Medical  Consultant  and  adopt  his
rationale as the basis for our conclusion that the applicant has  not
been the victim of an error or  injustice  regarding  his  disability
discharge with severance.  The applicant has indicated he has over 20
years of total service.  However, we note that these years of service
are for pay computation only and that under  the  Reserve  Retirement
system he falls under, he actually has, at  most,  slightly  over  18
years of service.  While the situation the applicant finds himself in
is regrettable, we do not find that he has been  treated  differently
than others similarly situated and that his case has been handled  in
accordance with prevailing policy.   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 Docket Number  BC-2005-
01872 in Executive Session on 2 March and 3  April  2006,  under  the
provisions of AFI 36-2603:

            Ms. Marilyn M. Thomas, Panel Chair
            Mr. James L. Sommer, Member
            Ms. Jean A. Reynolds, Member

The following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 7 Jun 05, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Memorandum, BCMR Medical Consultant,
                 dated 27 Dec 05.
     Exhibit D.  Letter, SAF/MRBR, dated 3 Jan 06.
     Exhibit E.  Letter, Applicant, dated 30 Jan 06, w/atchs.
     Exhibit F.  Letter, AFBCMR, dated 8 Mar 06.
     Exhibit G.  Letter, Applicant, dated 19 Mar 06, w/atchs.




                                   MARILYN M. THOMAS
                                   Vice Chair


                   AIR FORCE BOARD FOR CORRECTION
                        OF MILITARY RECORDS

               CASE TRANSMITTAL / COORDINATION RECORD


IN THE MATTER OF:                                  DOCKET NO:

XXXXXXX, XXXXXXX       BC-2005-01872


ROUTE IN TURN    INITIALS  DATE


1.  CHIEF EXAMINER     ________  ________
    (Coordination)


2.  EXECUTIVE DIRECTOR       ________  ________
    (Coord/Signature)


  3. RETURN TO EXAMINER TO E-MAIL/FAX

    TO PANEL CHAIR



4.  Ms. Marilyn M. Thomas    ________  ________
    VICE CHAIR
    (Signature on Proceedings)


5.  EXAMINER


6.  AFBCMR (Processing)




                                   ALGIE WALKER, JR.
                                   Examiner
                                   Air Force Board for Correction
                                   of Military Records