RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  02-01860
		INDEX NUMBER:  145.00
		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His DD Form 214, Certificate of Release or Discharge from Active Duty, be corrected to show he was medically retired and all awards he may be authorized be updated.  

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APPLICANT CONTENDS THAT:

His desire of making the Air Force a career was involuntarily ended after injuring his back on active duty.  In September 1993, he injured his back while TDY.  He was on a physical profile from October 1993 until his discharge in June 1994.  He was informed that he would be medically retired because he was not making improvement in physical therapy and was no longer fit to do his job in the Air Force.  Prior to his discharge, he was assisted in filing a VA claim for his back disability and was told the VA would take care of his back injury after his discharge.  In October 1994, the VA rated him  20 percent service-connected and in March 1995 his VA disability increased to 40 percent.  In January 2002, he inquired about his discharge and was told that because he did not appear before a medical evaluation board he was not medically discharged and was given an expiration term of service (ETS) discharge.  

In support of his appeal, applicant submits a personal statement, a copy of his DD Form 214, a copy of his physical profile and associated medical documents, and a copy of AFPC/DPPPR letter determining his eligibility for the Combat Readiness Medal, Air Force Achievement Medal, Kuwait Liberation Medal and the Southwest Asia Service Medal.  Applicant’s complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

On 24 June 1994, the applicant was honorably released from active duty and transferred to the Air Force Reserve in the grade of senior airman (E-4) under the provisions of AFR 39-10 (Completion of Required Service).  At the time of his discharge he had served 4 years on active duty.  Records indicate applicant received three Enlisted Performance Reports beginning 25 June 1990 and ending 24 February 1994 with ratings of 4, 5, and 5, respectively.  

Applicant’s physical profile serial reports beginning with the period 29 October 1993 and ending 14 April 1994, indicate low back pain or low back strain with his physical condition, upper extremities, lower extremities, hearing, vision (eyes) and psychiatric all identified as free of any defect or disease.  His overall qualification during these periods was “world-wide qualified.”

Prior to his separation, Air Force policy mandates a medical examination (physical) according to AFR 160-43 before separation or retirement when certain conditions exist.  The medical facility makes the final determination on whether an examination is mandatory or optional.  On 25 April 1994, the applicant elected to have a medical examination upon separation.  On this same date, military medical authorities reviewed his medical records and determined that a physical examination was not required.

On 11 June 2002, AFPC/DPPRSP advised the applicant that a DD Form 215 was completed to reflect his award of the Southwest Asia Service Medal w/ 1 bronze service star, Air Force Achievement Medal and the Kuwait Liberation Medal.  

On 29 October 2002, AFPC/DPPPWB advised the applicant that he was ineligible for promotion consideration to E-5 (SSgt) because of his separation on 24 June 94 and that his DD Form 214 reflected the correct grade of E-4 (SrA).

The remaining relevant medical facts pertaining to this application, extracted from the applicant's medical records, are contained in the letters prepared by the appropriate offices of the Air Force at Exhibit C and D.  

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AIR FORCE EVALUATIONS:

The BCMR Medical Consultant recommends the application be denied.  The BCMR Medical Consultant states that there is nothing in the service medical record that indicates that the applicant’s physician intended to refer him for a medical evaluation board.  Had the applicant’s case been submitted for a Medical Evaluation Board prior to his separation, the Physical Evaluation Board would have either returned him to duty on a profile citing the “presumption of fitness” policy or found him unfit based on the continuous requirement for physical profile limitations.  In the latter instance, disability separation with severance pay and not retirement would have resulted.  The applicant’s back condition at the time of separation was not of the severity to have warranted medical disability retirement.  Since the VA offsets its compensation by any amount awarded by the Department of Defense, the applicant has not been improperly denied any compensation.  

The BCMR Medical Consultant’s evaluation is at Exhibit C.  

AFPC/DPPD recommends the application be denied.  DPPD states that the applicant’s records confirm that he was never referred through the Air Force Disability Evaluation System.  Records reflect that an examination of his medical records was accomplished on 26 April 1994, prior to his voluntary separation.  The review of his medical records determined that a physical examination for his pending separation was not required.  It is presumed from this action that the medical authority felt no serious medical conditions existed at that time which would have precluded him from completing his obligated military service.  The applicant’s ability to complete his military tasks is further attested to in his last military performance report for the period closing 24 February 1994, which clearly reflects he was fully capable of performing his assigned duties as a Mobility Readiness Spares Package Monitor right up until his release from active duty.  

The AFPC/DPPD evaluation is at Exhibit D. 

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APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

While on a temporary duty assignment overseas in September 1993, he opened a bin and some of the boxes within the bin began to fall on his back.  His lower back started hurting within a couple hours.  The clinic personnel gave him pain medication and advised him if the pain persisted, he should see a doctor when he returned to his permanent station.  For the remainder of his TDY, he was given limited duties.  Since the onset of his back pain, he was on a profile of no bending, twisting, and lifting more than 10-15 lbs, and had physical therapy sessions three times per week.  He had to quit his squadron golf and bowling teams since these sports aggravated his back.  During the last eight to nine months of his career he was frequently absent from work on light duty details since he was unable to perform his regular duties.  

Applicant states that he requested a medical examination prior to his discharge but was not given one.  Within a month of his discharge, he was awarded 20 percent disability by the VA and in April 1995, his disability was upgraded to 40 percent.  He requests that the Board review his military records regarding his military retirement and consider his discussion on how his Air Force career ended short of his desired 20-30 years.  The applicant’s letter, with attachments is at Exhibit F.

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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.  Evidence has not been presented which would lead us to believe that the applicant’s release from active duty by reason of completion of required service was improper or contrary to the provisions of the governing instructions, which implement the law.  In order for the applicant to qualify for disability processing, it was necessary that medical authorities determine that his fitness for worldwide duty was questionable.  The applicant’s medical records indicate that approximately eight months prior to his release from active duty, he was seen with complaints of back pain and, following evaluation, the examining physicians placed him on temporary restriction with no bending, twisting or lifting of more than 15 pounds.  However, initially and on each occasion that the temporary restriction was extended, the applicant was found medically qualified for worldwide duty.  A review of the his EPR covering the period he was experiencing back pain reveals his duty performance was “outstanding” and he received the highest promotion recommendation.  His medical records were reviewed immediately before his release from active duty and military medical authority determined that a physical examination was not required.  We note that, subsequent to his separation, the applicant’s back condition was evaluated by the DVA and he was granted service connection and a 20% compensable rating.  But, we are constrained to note that while, by law, the Department of Defense rates disabilities solely based on their impact on the member’s ability to perform his or her duties, the DVA rates disabilities based on their impact on social and industrial adaptability.  In view of the above and in the absence of persuasive evidence by the applicant that successfully refutes the information in his record indicating he was physically fit for continued service or separation, but rather, that he was unable to perform his duties because of physical disability, we agree with the assessment of this case by the Medical Consultant and find that the applicant has not sustained his burden for providing a showing of error or injustice.  Accordingly, the applicant’s request is not favorably considered.

4.  As to the applicant’s request that all awards he may be authorized be updated, we note that on 11 June 2002, he was advised by the Air Force Personnel Center that a DD Form 215 was completed to reflect additional awards to which he was entitled.  In view of this fact, it appears that action by this Board on his request for credit for additional awards is not required.  

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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 this application in Executive Session on 30 April 2003, under the provisions of AFI 36-2603:

The following documentary evidence was considered for AFBCMR Docket Number 02-01860:

	Exhibit A.  DD Form 149, dated 30 May 02, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, BCMR Medical Consultant, dated 7 Oct 02.
	Exhibit D.  Letter, AFPC/DPPD, dated 20 Nov 02.
	Exhibit E.  Letter, SAF/MRBR , dated 27 Nov 02.
	Exhibit F.  Letter, Applicant, dated 6 Dec 02.

		   Panel Chair