RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2010-02034 

 COUNSEL: NONE 

 HEARING DESIRED: NO 

 

 

_________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

The deceased member receives a permanent disability retirement 
with a 100 percent disability rating with pay and compensation. 

 

_________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

On 1 July 2008, the deceased member received a regular retirement 
after serving 20 years of honorable service. On 1 June 2009, he 
was diagnosed with Stage 4 Aden carcinoma after several years of 
suffering from pulmonary related health problems predating his 
discharge. He died from lung cancer on 12 March 2010. 

 

The deceased member’s medical history shows pulmonary and other 
symptoms of this disease were present at the time of his 
discharge and were initially diagnosed and treated as pneumonia. 
Based on review of his medical history, it appears his cancer was 
present prior to retirement, manifesting as right lung pneumonia. 

 

In support of her request, the applicant provides copies of the 
deceased member’s DD Form 214, Certificate of Release or 
Discharge from Active Duty; extracts from his medical records, 
death and marriage certificates, and letters from his medical 
providers. 

 

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

 

_________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

On 8 June 1988, the deceased member enlisted in the Regular Air 
Force. On 1 July 2008, he retired in the grade of technical 
sergeant after serving 20 years and 23 days. 

 

The deceased member’s periodic health assessment dated 16 April 
2008 reflected he suffered from obstructive sleep apnea, 
hypertension, hyperlipidemia, obesity, and reported stress from 
the death of his grandparents. 

 

On 22 May 2008, the deceased member was diagnosed with walking 
pneumonia symptoms. On 25 July 2008, he was also diagnosed with 


a white/clear productive cough, fever, sore throat and sore chest 
from coughing. 

 

On 5 May 2009, the deceased member was diagnosed and treated for 
obstructive sleep apnea and a reactive airway disease. 

 

On 12 November 2009, the Department of Veterans Affairs (DVA) 
found the deceased member’s Aden carcinoma of the lung service 
connected and assessed him with a 100 percent disability rating. 

 

On 17 December 2009, a medical provider at Walter Reed Army 
Medical Center diagnosed the deceased member with lung cancer. 
It appeared that it was present prior to his April 2008 
retirement. On 10 March 2010, he succumbed to his illness. 

 

_________________________________________________________________ 

 

BCMR MEDICAL CONSULTANT EVALUATION: 

 

The BCMR Medical Consultant recommends approval. The Medical 
Consultant states DoD Instructions 1332.32, Overcoming the 
Presumption, states within the presumptive period an acute, grave 
illness or injury occurs that would prevent the member from 
performing further duty if he or she were not retiring. The 
Medical Consultant opines this statement applies to the deceased 
member’s case and that, more likely than not, he would have been 
retired with a 100 percent disability rating. Therefore, an 
initial temporary disability retirement would have been the norm 
in most cases of initial cancer diagnosis, but would have likely 
later resulted in permanent retirement noting the likely 
progression of the disease while under treatment. 

 

The deceased member had lung cancer prior to his retirement date. 
The medical providers exercised reasonable prudence in treating 
and advising the deceased member regarding his cough; 
particularly in the context of his relative youth at the time and 
the fact that he was a non-smoker, although we cannot determine 
the outcome had his diagnosis been earlier achieved. 

 

The complete BCMR Medical Consultant evaluation is at Exhibit C. 

 

_________________________________________________________________ 

 

APPLICANT'S REVIEW OF BCMR MEDICAL CONSULTANT EVAUATION: 

 

On 16 February 2011, a copy of the Air Force evaluation was 
forwarded to the applicant for review and comment within 30 days. 
As of this date, no response has been received by this office 
(Exhibit D). 

 

_________________________________________________________________ 

 

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. Sufficient relevant evidence has been presented to 
demonstrate the existence of an error or injustice. After a 
careful review of the evidence of record, we are of the opinion a 
change in the applicant’s disability rating is warranted. 
Therefore, we accept the opinion and recommendation from the BCMR 
Medical Consultant, who indicates that an injustice may have 
occurred in that the deceased member was retired without 
consideration of the progression of his disease while on active 
duty. Based on the above, we believe the applicant should have 
been found unfit by reason of physical disability. Therefore, we 
concur with the assessment by the BCMR Medical Consultant and 
adopt his rationale that the deceased member would have been 
retired with a 100 percent disability rating. In view of the 
foregoing, and in an effort to offset any possibility of an 
injustice, we believe his records should be corrected to the 
extent indicated below. 

 

_________________________________________________________________ 

 

THE BOARD RECOMMENDS THAT: 

 

The pertinent military records of the Department of the Air Force 
relating to APPLICANT be corrected to show that: 

 

a. On 30 June 2008, he was found unfit to perform the duty 
of his office, rank, grade, or rating by reason of physical 
disability, incurred while he was entitled to receive basic pay; 
that the diagnoses in his case was Neoplasms, malignant, any 
specified part of respiratory system exclusive of skin growths, a 
condition which is rated at a compensable percentage of 100 
percent, under the Veterans Administration Schedule for Rating 
Disabilities (VASRD) code 6819; that the degree of impairment was 
permanent; that the disability was not due to intentional 
misconduct or willful neglect; that the disability was not 
incurred during a period of unauthorized absence; and that the 
disability was not received in the line of duty as a direct 
result of armed conflict or caused by an instrumentality of war. 


 

 

 

 

 

 

b. He was not released from active duty on 30 June 2008 
and retired for length of service on 1 July 2008, but on 30 June 
2008 his name was placed on the Permanent Disability Retired List 



with a 100 percent compensable disability rating, in the grade of 
technical sergeant. 


 

_________________________________________________________________ 

 

The following members of the Board considered AFBCMR Docket 
Number BC-2010-02034 in Executive Session on 21 April 2011, under 
the provisions of AFI 36-2603: 

 

Panel Chair 

Member 

Member 

 

All members voted to correct the records, as recommended. The 
following documentary was considered: 

 

 Exhibit A. DD Form 149, dated 19 May 10, w/atchs. 

 Exhibit B. Applicant's Master Personnel Records. 

 Exhibit C. Letter, BCMR Medical Consultant, dated 9 Feb 11. 

 Exhibit D. Letter, SAF/MRBR, dated 16 Feb 11. 

 

 

 

 

 

 

 Panel Chair 

 

 

 


AFBCMR BC-2010-02034 

 

 

 

 

MEMORANDUM FOR THE CHIEF OF STAFF 

 

 Having received and considered the recommendation of the Air Force Board for 
Correction of Military Records and under the authority of Section 1552, Title 10, United States 
Code (70A Stat 116), it is directed that the pertinent military records of the Department of the Air 
Force relating to, be corrected to show that: 

 

a. On 30 June 2008, he was found unfit to perform the duty of his office, rank, 
grade, or rating by reason of physical disability, incurred while he was entitled to receive basic 
pay; that the diagnoses in his case was Neoplasms, malignant, any specified part of respiratory 
system exclusive of skin growths, a condition which is rated at a compensable percentage of 100 
percent, under the Veterans Administration Schedule for Rating Disabilities (VASRD) code 
6819; that the degree of impairment was permanent; that the disability was not due to intentional 
misconduct or willful neglect; that the disability was not incurred during a period of unauthorized 
absence; and that the disability was not received in the line of duty as a direct result of armed 
conflict or caused by an instrumentality of war. 


 

b. He was not released from active duty on 30 June 2008 and retired for length of 
service on 1 July 2008, but on 30 June 2008 his name was placed on the Permanent Disability 
Retired List with a 100 percent compensable disability rating, in the grade of technical sergeant. 


 

 

 

 

 

 

 Director 

 Air Force Review Boards Agency