RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  02-02788
		INDEX NUMBER:  108.00
	XXXXXXXXXXXXXXXXX	COUNSEL:  None

	XXX-XX-XXXX	HEARING DESIRED:  Yes

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APPLICANT REQUESTS THAT:

His disability discharge with severance pay be changed to a disability retirement.

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APPLICANT CONTENDS THAT:

The options he was offered during his Medical Evaluation Board (MEB) were unjust.  Up to the time of his MEB he was actively carrying out his duties as a Weapons Director, Instructor, and Evaluator.  He was also the only Air Surveillance Technician evaluator in his unit.  The recommendation from the Physical Evaluation Board (PEB) did not take this into consideration in reaching their conclusion that he be separated from service.  He was discharged for an ailment that he had while doing his part to support a non-stop mission tempo.  Prior to his MEB, he did consider the option of separating, but changed his mind when he realized that the benefits were lacking when compared to medical or regular retirement.  He also found out that information he had been given regarding the payment of severance pay if he separated was wrong.

He believes that he should have been given the option of continuing his active duty service until normal retirement or given a medical retirement if his condition was so severe as to warrant his separation.

In support of his appeal, the applicant has provided medical statements attesting to the severity of his ailment and justification for a higher disability rating, a copy of the findings and recommended disposition of the PEB, and a copy of his rebuttal to the PEB.

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

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STATEMENT OF FACTS:

The applicant entered the Air Force on 10 Jul 85.  He was disability discharged with severance pay (20%) on 13 Aug 02 for low back pain associated with intervertebral disc syndrome.  A review of the applicant’s last ten enlisted performance reports (EPRs) ending with the report closing 1 Sep 01 indicates overall ratings of “5.”  The remaining relevant facts pertaining to this application are contained in the evaluations prepared by the appropriate offices of the Air Force found at Exhibits C and D.

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AIR FORCE EVALUATION:

The BCMR Medical Consultant recommends denial of the applicant’s requests.

The applicant was disability discharged with severance pay for low back pain related to intervertebral disc syndrome.  He contends that his condition was severe enough at the time of his PEB to justify disability retirement.  The DOD uses the Veterans Administration (VA) Schedule of Ratings for Disabilities (VASRD) as a guide when compensating for disability that cuts a career short.  For intervertebral disc syndrome, the VASRD provides guidelines for ratings from zero percent to a maximum of 60%.  The applicant’s condition was rated by the PEB as “moderate recurring attacks” at 20%.  The evidence of record does not support that the applicant suffered symptoms warranting a higher disability rating.

Findings and recommendations of the PEB were sustained at all levels of review and approved by the Air Force Personnel Board.  There is no evidence to support a higher rating at the time of permanent disposition.

The complete evaluation is at Exhibit C.

AFPC/DPPD recommends denial of the applicant’s request.

Disability processing records reflect that the applicant was presented before an MEB and the results referred to the Informal PEB (IPEB) for adjudication.  The Board diagnosed his lower back pain as unfitting for continued military service and recommended he be discharged with entitlement to severance pay with a 20 percent disability rating under the provisions of Title 10, USC, Section 1203.  The applicant disagreed with the Board’s findings and requested a formal hearing of his case.

On 22 Apr 02, the service member appeared before the Formal PEB (FPEB) assisted by an appointed legal counsel.  The Board reviewed the preponderance of evidence, which included additional documentation and testimony presented by the applicant prior to agreeing with the IPEB’s findings and recommendation.  The applicant once again disagreed with the findings and elected to submit a written rebuttal to the Secretary of the Air Force Personnel Council (SAFPC).  His rebuttal requested that his medical condition be evaluated as 40 percent disabling or higher.  Consequently, SAFPC adjudicated his case and directed that he be discharged with entitlement to severance pay.  

The complete evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 6 Dec 02 for review and comment within 30 days.  To date, a response has not been received.

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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 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 opinions and recommendations of the Air Force offices of primary responsibility and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

4.  The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved.  Therefore, the request for a hearing is not favorably considered.

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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 02-02788 in Executive Session on 4 February 2003, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 16 Aug 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, BCMR Medical Consultant,
                dated 29 Oct 02.
    Exhibit D.  Memorandum, AFPC/DPPD, dated 2 Dec 02.
    Exhibit E.  Letter, SAF/MIBR, dated 6 Dec 02.