RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBER:  BC-2003-03487
INDEX CODE:  108.00
	XXXXXXXXXXXXXXX				COUNSEL:  

	XXXXXXXXXX					HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT: 

His disability discharge with entitlement to severance pay be set aside, and he be awarded a permanent disability retirement with a 50% rating retroactive to 20 May 2002, the date of his release from active duty.
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APPLICANT CONTENDS THAT:

The disability rating (20%) he received for his low back pain was improper, as it should have been 40%.  In addition, he should have been compensated for his chronic neck pain and his diagnosed adjustment disorder with depressed features.  Combined, the ratings should have allowed him a higher rating of disability and a disability retirement.  

In support of his application, the applicant’s counsel provides a statement with six exhibits.  The applicant’s complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

On 19 May 1988, following an enlistment in the Army Reserve, the applicant enlisted in the Regular Air Force at the age of 27 in the grade of airman (E-2) for a period of six years.  He was trained as a Fire Protection Craftsman and was progressively promoted to the grade of technical sergeant (E-6), effective 1 July 1997.  

On 29 January 2002, the applicant’s medical records were reviewed by a Medical Evaluation Board (MEB) following a history of back and neck pain since 1988.  The MEB’s diagnosis and findings identified the applicant with chronic low back pain, with sciatica bilaterally; neck pain; and Adjustment Disorder.  The MEB determined the conditions were incurred while the applicant was entitled to basic pay and were permanently aggravated by service.  The MEB recommended the applicant’s records be referred to the Informal Physical Evaluation Board (IPEB) for evaluation.  The IPEB’s findings, dated 14 February 2002, found the applicant unfit because of physical disability incurred in the line of duty and while entitled to receive basic pay.  Their diagnoses were low back pain with radiation due to degenerative disc disease (Category I - unfitting conditions which are compensable and ratable), rated at 20% disability; chronic neck pain (Category II - conditions that can be unfitting but are not currently compensable or ratable), not rated; and adjustment disorder with depressed features (Category III - conditions that are not separately unfitting and not compensable or ratable), not rated.  The IPEB recommended the applicant be discharged with severance pay with a disability rating of 20%; because of his unfitting, ratable, and compensable condition; in accordance with DoD and Veterans Administration Schedule for Rating Disabilities (VASRD) guidelines.  On 19 February 2002, the applicant indicated he did not agree with the IPEB’s findings and requested a Formal Physical Evaluation Board (FPEB).  

The FPEB’s findings, dated 14 March 2002, confirmed the findings of the IPEB and recommended the applicant be discharged with severance pay with a disability rating of 20% for low back pain with radiation due to degenerative disc disease.  On 15 March 2002, the applicant indicated his disagreement with the FPEB’s findings and submitted a rebuttal.  On 10 April 2002, the Secretary of the Air Force determined the applicant was physically unfit for continued military service and directed he be disability discharged under the provisions of Title 10, United States Code (USC), Section 1203, with severance pay in the grade of technical sergeant computed under Title 10, USC, Section 1212.  

The applicant was separated with an honorable discharge effective 20 May 2002 with a separation code of JFL (disability, severance pay) and a reentry code of 4K (medically disqualified for continued service).  He had served 14 years, 4 months and 19 days on active duty.

Information provided by the Department of Veterans Affairs (DVA) indicates that the applicant is receiving disability pay, effective upon his separation from active duty, at a combined degree of disability of 80% for the following diagnosis:  Condition of the Skeletal System at 40%; Major Depressive Disorder at 30%; Condition of Skeletal System at 10%; Knee Condition at 10%; Residuals of Foot Injury at 10%; and Condition of Skeletal System at 10%.  

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AIR FORCE EVALUATION:

The BCMR Medical Consultant is of the opinion that no change in the applicant’s records is warranted.  The BCMR Medical Consultant states that while on active duty, the applicant performed his more sedentary administrative duties in an exemplary fashion; however, due to his chronic back condition combined with a prolonged history of exceeding Air Force weight standards, it was necessary to refer the applicant for evaluation in the Disability Evaluation System (DES).  The preponderance of evidence supports the findings that the applicant’s chronic low back pain was unfitting for his military duties; however, his neck pain and mood disorder did not interfere with the performance of his duties and were not unfitting at the time he was referred for medical evaluation board.  According to the applicant’s service medical records, his depressed mood was diagnosed as Adjustment Disorder, a condition that is a conditional response and not ratable or compensable under the rules of the Department of Defense (DoD) disability system.  The mental health narrative changed the applicant’s diagnosis to Mood disorder due to chronic back pain with depressive features and Depression affecting chronic back pain; however, evidence of the record indicates these symptoms were situational in nature and were not unfitting for duty as evidenced by the applicant’s documented duty performance.  

The BCMR Medical consultant states that DoD is required to use the VASRD as a guideline to rate disabilities that are unfitting for continued military service.  The applicant’s rating of 20% for his back condition is consistent with how the Physical Evaluation Boards (PEBs) have applied the VASRD in similar cases.  Under the new VASRD guidelines not yet in use at the time of his PEB, the applicant’s condition would be rated 20% based on either the range of motion standard or incapacitation standard.  

It is the opinion of the BCMR Medical Consultant that action and disposition in this case were proper and equitable reflecting compliance with Air Force directives that implement the law.  The BCMR Medical Consultant’s evaluation is at Exhibit C.

AFPC/DPPD recommends denial of the applicant’s request.  DPPD states the applicant was treated fairly throughout the DES process and he was properly rated under Federal disability guidelines as required by military laws and policy in effect at the time of his evaluation.  It is DPPD’s opinion that the applicant or his counsel failed to provide documentation to justify why his medical discharge should be overturned, and he be awarded a permanent disability retirement with a 50% disability rating.  DPPD wholeheartedly concurs with the comments and recommendation made by the BCMR Medical Consultant that no change in the applicant’s record is warranted.  The DPPD 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 counsel on 21 May 2004 for review and response within 30 days.  As of this date, this office has received no response.

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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 an error or injustice.  We took notice of the applicant's complete submission in judging the merits of the case and do not find that it supports a determination that the applicant’s discharge from the Air Force with entitlement to disability severance pay was in error or unjust.  Applicant’s contentions are duly noted; however, we believe the detailed comments provided by the BCMR Medical Consultant accurately address his allegations.  In view of this finding, we agree with the opinions and recommendations of the BCMR Medical Consultant and DPPD and we adopt their rationale as a basis for our conclusion that the applicant has not been the victim of either an error or an injustice.  In the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this appeal.

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 this application in Executive Session on 15 September 2004, under the provisions of AFI 36‑2603:

The following documentary evidence for AFBCMR Docket Number 
BC-2003-03487 was considered:

	Exhibit A.  DD Form 149, dated 17 Sep 03, with attachments.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, BCMR Medical Consultant, dated 28 Apr 04.
	Exhibit D.  Letter, AFPC/DPPD, dated 14 May 04.
	Exhibit E.  Letter, SAF/MRBR, dated 21 May 04.