RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  01-02096
		INDEX CODE:  108.01
		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His discharge from the Air Force be changed to reflect that he was medically discharged and that he be entitled to all the back pay and benefits thereof.  

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APPLICANT CONTENDS THAT:

Three Air Force physicals accomplished between 1952 and 1954 showed his spine to be normal and free of any unusual or potentially crippling defects.  In 1955, after an accident at an Air Base in Tripoli, an examination revealed his spine was abnormal with several crippling defects.  The examining physician said the defects were "probably" congenital deformities because the "medical history" indicated they had been present for "some time" and were "asymptomatic."  However, his research into his medical record shows no evidence of any spinal abnormalities prior to the 1955 accident or prior to his enlistment in 1952, to include an Air National Guard (ANG) physical taken prior to his enlistment in the Regular Air Force.  His Department of Veterans Affairs (DVA) claim for compensation retroactive to 1975 was denied.  The DVA remains adamant that he was born with the crippling spinal disabilities that were noted on the 1955 examination.  

Several weeks after the discovery of the abnormalities and deformities another Air Force physician described them an a "non-existent backache."  In his report he stated that he believed he was malingering to avoid duty and that he should be administratively separated from the Air Force.  However, shortly after the diagnosis he received a superior efficiency rating, accolades from his group commander praising his work and his efforts to boost morale of Air Force personnel as a volunteer with Armed Forces Radio.  Applicant believes the physician did not like him and was frustrated because of his refusal to answer his questions regarding the nature of his unit’s mission.  

If the DVA is correct, then they are accusing the four Air Force and ANG physicians of incompetence for not discovering the obviously serious abnormalities.  All four physicals included chest x-rays that would have revealed the rather severe scoliosis.  Again, if the DVA is correct then the Air Force was in violation of policy by recruiting him with abnormal, crippling, spinal birth defects.  When the Air Force discovered their error after the 1955 accident, he should have been medically retired with full benefits.  

In support of his request, applicant provided a personal statement, documents associated with his correspondence to the President, extracts from his medical records, statements of support, documents associated with his DVA claims, a newspaper article; his DD Fm 214, Armed Forced of the United States Report of Transfer or Discharge; and his NGB Fm 22, Report of Separation and Record of Service in the Air National Guard.  His complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

On 28 Jun 52, applicant enlisted in the ANG.  He was discharged from the ANG on 16 Sep 52, for the Convenience of the State.  On 2 Oct 52, he enlisted in the Regular Air Force.  He was progressively promoted to the grade of airman first class having assumed that grade effective and with a date of rank of 1 Feb 56.  On 18 Aug 56, he was released from active duty and transferred to the Air Force Reserve, Non-Affiliated Reserve Section.  He was discharged from the Air Force Reserve on 27 Jun 60.

The remaining relevant facts pertaining to this application, extracted from the applicant’s military records, are contained in the letter prepared by the appropriate office of the Air Force.  

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AIR FORCE EVALUATION:

The BCMR Medical Consultant reviewed the applicant’s request and recommends denial.  The Medical Consultant states that there clearly was no unfitting medical condition that would have brought the applicant to the attention of the disability evaluation system following his accident in 1955.  It would appear that the applicant did have some spinal abnormality that prevented his being accepted into aviation training, but which went undetected through several examinations prior to that time.  The original reading of his discharge x-ray did not include mention of his bony changes but were only noted on a re-look of the film, so it is possible to read a chest x-ray and concentrate on the soft tissues without commenting on the bony structures.  This same oversight might have occurred on his earlier x-rays that did not comment on the spine configuration.  Differences between enlistment and flying standards as to allowable spine curvatures that are acceptable may well account for his being accepted for enlistment while being rejected for flying duties.  His acute injury in 1955 would not have produced the immediate x-ray picture that was reported with the three different spinal curves that were noted.  An injury may well produce a painful area that will cause a tilt of the spine in a single direction, but additional curves would not be expected to be seen until the condition had existed for a much greater period of time.  Evidence speaks strongly as to the congenital nature of his spinal curvatures, which while being temporarily aggravated by his fall, were not permanently aggravated to the point of warranting medical disability consideration.  The Medical Consultant evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant states there is absolutely no evidence to prove that the double-curve thoracic scoliosis, dislocated and fractured thoracic vertebra, and lumbar scoliosis with tilted vertebra were there prior to service.  The Medical Consultant indicated that four opportunities to discover those six spinal abnormalities and disabilities were missed due to oversights.  If they actually existed prior to service then he was illegally recruited in violation of law and policy that prohibits recruitment and retention of persons with crippling or weakening spinal defects without waivers signed by the enlistee noting that the disabilities existed prior to service (EPTS).  If those disabilities later become problematic, the member can be discharged without compensation.  He signed no such waivers and there is no annotation of EPTS on his entrance physical.  He should have been separated as unfit for duty when those disabilities were eventually discovered during his third year of service.

He sought the medical opinions of two orthopedic surgeons, independent of each other.  Both reviewed his Air Force radiographic report of 1955 and his post-service DVA examinations.   Both agreed that the fracture of vertebra T-3 was most likely not a congenital deformity.  In support of his request, applicant provided letters from his DVA physician and orthopedic surgeons.

Applicant provided an additional statement in which he states that he received a letter from AFPC/DPPD in response to his letter to the Secretary of Defense.  DPPD states that "his condition was deemed as EPTS thereby making him ineligible for a medical retirement."  This is a mistake, the only condition indicated as EPTS was done after three years of service, not at the time of entry.  Additionally, the condition noted as EPTS was for acute, severe mental/emotional problems, not the six spinal disabilities documented on the post-accident x-rays.  In fact, the mental disabilities indicated as EPTS, denied that the spinal problems existed at all.  None of his Air Force physicals indicated any EPTS spinal conditions.  In further support of his request, applicant provided a personal statement, a letter from AFPC/DPPD, and extracts from his medical records.  

Applicant provided another statement in which he pointed out several errors he noted in the Medical Consultant evaluation.  Applicant states that the Medical Consultant states that there was "questionable" slippage of T-3 on T-4.  The radiologist said definitely that vertebra D-3 was slipping to the left of D-4 and that it "probably" represented a congenital deformity.  The word probably is not an absolute.  The Medical Consultant states that evidence speaks strongly as to the congenital nature of the spinal curvatures, however, at no time in any of his Air Force medical records does it say that the thoracic and lumbar scoliosis were congenital.  When the radiologist described the thoracic scoliosis and the tilted vertebra, he did not say they were congenital, he only indicated that the individual vertebra was probably congenital.  

The applicant’s complete submissions, with attachments, are at Exhibits E through G.

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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 that would warrant correction of his records to reflect that he was medically separated from the Air Force.  The purpose of the military Disability Evaluation System (DES) is to maintain a fit and vital force by separating members who are unable to perform their duties because of a physical disability.  The mere presence of a physical defect, however, does not qualify a member for disability retirement or discharge.  The defect or conditions must render the member unfit for duty.  After review of the evidence provided, we see no evidence of a disqualifying condition or that a physical disability existed at the time of his separation that rendered him unable to perform his military duties and would have disqualified him from worldwide service.  We note that the DVA has granted his claim for service-connected disability.  It is important in this case to note that the service’s DES and that of the DVA operate under separate laws.  Under the service’s system, the law provides compensation for those whose career is cut short as a result of a service-incurred or service-aggravated physical disability.  The DVA rates service-connected conditions on the basis of social and industrial adaptability.  Therefore, it is entirely possible that an individual may be eligible for compensation under the DVA system while not being entitled to service DES processing.  Therefore, we agree with the opinion and recommendation of 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.  In the absence of persuasive evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

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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.

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The following members of the Board considered Docket Number 01-02096 in Executive Session on 14 May 02, under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 20 Jul 01, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, BCMR Medical Consultant, dated 5 Mar 02.
    Exhibit D.  Letter, SAF/MRBR, dated 11 Mar 02.
    Exhibit E.  Letter, Applicant, dated 18 Mar 02, w/atchs.
    Exhibit F.  Letter, Applicant, dated 21 Mar 02, w/atchs.
    Exhibit G.  Letter, Applicant, dated 29 Mar 02.