RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  03-00507
		INDEX NUMBER:  145.00
		COUNSEL:  XXXXX
		HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

His records be corrected to reflect that at the time of separation he received a higher disability rating and if this new disability rating qualifies him for medical retirement, he be medically retired with full benefits.

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APPLICANT CONTENDS THAT:

He was initially placed on the Temporary Disability Retirement List (TDRL) in December 1999 with a rating of 60 percent.  In July 2000, the Veterans Administration rated his disability at 70 percent.  He was later reevaluated at Wilford Hall Medical Center.  The medical examination was full of errors and the  Physical Evaluation Board (PEB) used this examination to downgrade his disability rating to 10 percent and to discharge him.  The medical examination is contradictory to all his previous and subsequent medical exams.  

He served his country for fourteen honorable years.  Before his discharge, he had completed his Bachelor’s degree in anticipation of becoming an officer and continuing his career in the Air Force.  His pride in having served has been marred by the frustration he feels toward the PEB in dealing with disabled service members.  His story is common among medically discharged veterans who report Randolph downgrades their ratings, discharges them, and then plays the odds that the applicants will not fight the rating.  He has devoted his entire adult life to serving his country and will fight back.

In support of his appeal, applicant submits a personal statement and copies of medical reports, test results and related diagnoses, rating decisions, and medical records associated with his disability separation (Tabs A-T).  Applicant’s complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

Records reflect that the applicant is a former noncommissioned officer who was relieved from active duty effective 9 February 2000 and his name was placed on the Temporary Disability Retired List (TDRL) in the retired pay grade of technical sergeant effective 10 February 2000, with a physical disability rating of 60 percent.  Applicant’s physical disability was chronic low back pain secondary to fibrosis, status post discectomy associated with arthritis of spine, right foot drop and unstable gait.  He was credited with 13 years, 4 months and 21 days of total active duty service for basic pay and for active service for retirement.  Effective 9 September 2001, his name was removed from the TDRL and he was discharged in the grade of technical sergeant with severance pay and with a disability rating of 10 percent.

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 that the preponderance of the evidence supports change of records to show disability discharge with severance pay at 20 percent.  The BCMR Medical Consultant agrees with the PEB that the applicant's condition does not achieve the severity sufficient to warrant disability retirement, but opines that the preponderance of the evidence supports that the applicant's condition is of moderate severity with recurring attacks with intermittent relief warranting a disability rating of 20 percent.  

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

AFPC/DPPD recommends approval of the applicant's request to increase the disability rating from 10 to 20 percent.  AFPC/DPPD states that having reviewed the BCMR Medical Consultant's evaluation, they forwarded the case file to the Informal Physical Evaluation Board (IPEB) for further adjudication of the case.  The IPEB determined that due to the lack of objective rating criteria, and giving the benefit of the doubt to the veteran, a very slightly higher disability rating may be appropriate in this case.  Any rating above 20 percent, however, is clearly not warranted based on the member's condition at the time of his removal from the TDRL, with subsequent discharge.

The AFPC/DPPD evaluation is at Exhibit D. 

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APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

The Veterans of Foreign Wars counsel responded on applicant's behalf by referring to the neurosurgeon’s report of 21 September 1999, stating the applicant's condition would not improve any further.  Therefore the applicant's rating should not have been reduced and he should have remained on the TDRL.

Counsel’s letter 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.  Sufficient relevant evidence has been presented to demonstrate the existence of error or injustice warranting an increase in the disability rating.  After reviewing the evidence of record, it appears that the applicant’s condition is of moderate severity occurring more frequently then determined by the Air Force disability system.  Having seen no evidence that would lead us to believe the contrary is the case, we agree with the assessment by the BCMR Medical Consultant, as confirmed by a recently-convened IPEB, that the severity of his back condition is not sufficient to warrant a disability retirement.  However, due to the applicant’s recurring attacks, we accept the recommendations in the advisory opinions that the appropriate rating for his disability is 20 percent.  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.

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THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that on 9 September 2001, competent authority determined that the compensable rating for his unfitting condition, “Chronic Back Pain Secondary to Fibrosis, Status Post Disectomy with Residual Mild L5 Radiculopathy,” was 20 percent, rather than 10 percent.

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The following members of the Board considered this application in Executive Session on 12 February 2004, under the provisions of AFI 36-2603:

		Panel Chair
		Member
		Member

The following documentary evidence was considered for AFBCMR Docket Number 03-00507:

	Exhibit A.  DD Form 149, dated 24 Jan 03, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, BCMR Medical Consultant, dated 3 Oct 03.
	Exhibit D.  Letter, AFPC/DPPD, dated 9 Dec 03.
	Exhibit E.  Letter, SAF/MRBR , dated 19 Dec 03.
	Exhibit F.  Letter, Applicant’s counsel, dated 27 Jan 04.

		   
		   Panel Chair

AFBCMR BC-2003-00507

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 XXXXX, be corrected to show that on 9 September 2001, competent authority determined that the compensable rating for his unfitting condition, “Chronic Back Pain Secondary to Fibrosis, Status Post Disectomy with Residual Mild L5 Radiculopathy,” was 20 percent, rather than 10 percent.

		
		Director
		Air Force Review Boards Agency