RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-01029
		INDEX CODE: 108.02  110.02
	XXXXXXX	COUNSEL:  None

	XXXXXXX	HEARING DESIRED:  Not Indicated

MANDATORY CASE COMPLETION DATE:  9 May 07

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APPLICANT REQUESTS THAT:

His 1976 voluntary resignation and honorable discharge be changed to a medical retirement with a payment of $500.00 per month.

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APPLICANT CONTENDS THAT:

After pilot training, he was sent to survival training, where he injured his back.  He received no treatment other than pain killers and bed rest.  He received no separation physical, which would have resulted in disability benefits due to his bad back.  The Department of Veterans Affairs (DVA) took nine years to provide his military records and award him a disability rating.  The pain he has endured resulted in two divorces, two bankruptcies, and 12 different jobs.  His whole life has been affected by his poor health.

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

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STATEMENT OF FACTS:

The following information was extracted from the applicant’s military personnel records (Exhibit B) and the official documents supplied by him in his application (Exhibits A and E).  The applicant’s complete service medical records (SMR) were not available for the AFBCMR Medical Consultant to review.

The applicant enlisted in the Regular Air Force on 2 Jun 72, but then was honorably discharged in the grade of staff sergeant on 27 Aug 72, after 2 months and 26 days of active service to accept a commission.  

On 28 Aug 72, the applicant was commissioned a 2nd lieutenant (2LT) in the Air Force Reserve and entered extended active duty (EAD) as a student in undergraduate pilot training (UPT).  The applicant graduated from UPT on 7 Dec 72 and was awarded the aeronautical rating of pilot.  He was assigned as a pilot to the 916th Air Refueling Squadron (916 ARS) at Travis AFB, CA.

A 20 May 74 medical entry reported the applicant injured his back several years prior when he lifted a heavy object over a fence and was experiencing severe pain.  The entry indicated x-rays were performed and the applicant was placed on bed rest with Valium.  He was taken off flying status.  A medical entry/orthopedic consultation dated 22 May/3 Jun 74, indicated the applicant had been experiencing increasing low back pain, especially after exercise.  His recent pain had begun after horseback riding.

A 13 Jun 74 orthopedic entry reflected the applicant indicated complete relief from pain on a rest regimen and he was returned to full duty.

The applicant was promoted to the temporary Reserve grade of 1st lieutenant (1LT) with a date of rank (DOR) of 28 Aug 74, and to the permanent Reserve grade of 1LT with a DOR of 28 Aug 75.

On 28 Jun 76, the applicant requested he be released from active duty, effective 1 Oct 76, and that he be given a Reserve commission.

According to a document dated 8 Jul 76, the applicant requested that he be released from EAD for miscellaneous reasons under the provisions of AFR 36-12 because of the “unfavorable reaction by Air Force authorities to a misdemeanor conviction [he] received recently for receiving stolen property.”  The applicant claimed he told a yard boy he employed that he was trying to purchase a used typewriter.  The yard boy’s friend told the applicant he had a used typewriter he could sell.  While he was on two weeks of temporary duty (TDY), his wife told him the friend dropped off a used typewriter and would sell it for $85.00.  The applicant indicated he had no reason to suspect the property had been stolen from a local school since both the yard boy and the friend came from military families.  However, after he returned, the police charged both him and his wife for receiving stolen property.  He informed his squadron commander at the time, who told him the military would probably not take any action against him.  His civilian attorney advised him that the district attorney would drop any felony charge if either his wife or he pled no contest to a misdemeanor.  He decided to enter the plea to protect his wife’s job and because he had been assured no action would be taken against him by the Air Force.  On 3 Jun 76, he was sentenced to 10 days, one year probation, and court costs.  Then a new squadron commander told him that the Air Force wanted him to request a release from active duty.  Since it appeared the Air Force did not wish for him to remain on active duty and the 
incident would seriously hinder his career, he requested release from active duty in the best interests of the Air Force and himself.  

On 16 Aug 76, the Secretary of the Air Force (SAF) accepted the applicant’s resignation and directed he be honorably discharged as soon as possible.

On 28 Sep 76, the acting SAF directed the applicant’s name be removed from the list of officers recommended for promotion to the temporary grade of captain by the Fiscal Year 1977A (FY77A) Central Temporary Captain Selection Board.

On 12 Jul 76, the applicant underwent a separation physical.  He indicated on the Report of Medical History that his health was “excellent,” no medications were needed, and he had no recurrent back pain, arthritis/rheumatism, joint/bone pain or any other medical problem.  The Report of Medical Examination reflected no spinal or other problems and found the applicant world-wide qualified.

On 29 Jul l976, the applicant indicated on AF Form 452, Serviceman’s Statement Concerning Application of Compensation from the Veterans Administration, that he did not wish to file an application for disability compensation at that time.

The applicant’s DD Form 214 reflects that, on 27 Aug 76, he was honorably discharged in the grade of 1LT, voluntary resignation-miscellaneous reasons at member’s request, after 4 years, 2 months, and 26 days of active service as an officer for a total of 4 years, 5 months, and 12 days of active service.  Since the applicant was an officer, a reenlistment eligibility (RE) code would not apply.  Special Order No. AB-3838, dated 27 Aug 76, reflects the applicant was discharged, not released, from active duty.  

On 22 Apr 83, the applicant appealed to the Air Force Discharge Review Board (AFDRB) to have the narrative reason for his discharge changed so he could enlist in the Reserves.  The applicant’s military records were incomplete but he indicated in his application that he was given the choice of either discharge or face possible court-martial proceedings due to his wife purchasing a typewriter which had been stolen from a local school while he was TDY.  The thief had given their names and the police found the typewriter in their house.  He and his wife cooperated fully.  During a personal appearance before the AFDRB on 14 Dec 83, the applicant indicated he, in fact, desired reinstatement to active duty. Since the AFDRB had no authority to direct reinstatement, his application was transferred to the AFBCMR on 5 Jan 84.  

On 20 Feb 85, the AFBCMR denied the applicant’s request to have the reason and authority of his separation changed so he could re-enter the Reserves or active duty.  The Air Force had indicated in its advisory it was unable to make a valid recommendation regarding the applicant’s separation based on the limited documentation available and the absence of any new substantive documentation.  Further, the applicant had not provided any pertinent documentation although requested to do so.

On 7 Oct 02 (after previously denying the applicant’s earlier claims for service connection for a ruptured disc at L4-S1 with a tear in the annulus at L4-5 and L5-S1), the DVA awarded the applicant a 60% disability rating, effective 30 Jul 99, for service-connected lumbar strain with degenerative joint disease and degenerative disc disease.

In Mar 04, the applicant submitted an application requesting back pay of 40% disability from Aug 76 to May 00.  However, the applicant’s service medical records (SMR) were not available.  The AFBCMR intake office at Randolph AFB, SAF/MRBR, requested the applicant either provide copies of his military medical records since his SMR was not available or allow his case to be closed since it could not be adjudicated without military medical records.  However, the applicant indicated he did not want his case closed and resubmitted another application on 25 Aug 05.  SAF/MRBR continued to request the applicant’s SMR from the DVA on 9  and 22 Sep 05, before finally being advised that the SMR was unavailable because the applicant had filed an appeal with regard to his claim with the DVA.  On 11 Oct 05, SAF/MRBR advised the applicant that, if he wished to continue to have his AFBCMR application processed, it would most likely be without his SMR since those documents were being reviewed by the DVA.

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AIR FORCE EVALUATION:

HQ AFPC/DPPD notes the applicant provided some medical progress notes and orthopedic consult from 1973 and 1974, at which time he was returned to full duty.  They advise that the preponderance of evidence reflects that the Physical Disability Division never received a referral to the Physical Evaluation Board (PEB) and therefore could not have given the applicant a medical discharge.  Denial is recommended.

A complete copy of the evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant claims his wife bought a stolen typewriter while he was on temporary duty.  The Air Force treated him like a criminal and gave him the option of either resigning his commission or facing a court-martial.  He was injured while on active duty and was originally given a Nov 76 date to separate.  However, he was 
forced to sign false documents, which incorrectly indicated he was unable to enter the Reserves, and he was forced out earlier in Aug 76 without proper processing or a separation physical.

The applicant’s complete response, with attachments, is at Exhibit E.

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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 to warrant changing the applicant’s voluntary resignation and honorable discharge for miscellaneous reasons to a medical retirement.  His contentions are duly noted; however, we do not find these uncorroborated assertions, in and by themselves, sufficiently persuasive to overcome the rationale provided by the Air Force or the evidence in the available records, including those submitted by the applicant himself.  Title 10, USC, Chapter 61, which governs the Air Force system, first requires a determination of unfitness and that the degree of unfitness be based upon the member’s condition at the time of permanent disposition--not upon possible future events.  Further, while a military member’s various medical problems may be considered, only those that render him unfit for military service will be rated.  For an individual to be considered unfit for military service, there must be a medical condition so severe that it prevents performance of any work commensurate with rank and experience.  HQ AFPC/DPPD advised that the preponderance of evidence reflected the Physical Disability Division never received a referral to the PEB.  The submitted medical entries indicate the applicant’s back pain responded to the treatment provided and he was returned to full duty.  Contrary to his assertions, the applicant was given a separation physical on 12 Jul 76, during which he reported his health was “excellent.”  The Report of Medical Examination reflected no spinal or other problems and found him world-wide qualified.  On 29 Jul 76, the applicant indicated he did not wish to file an application for disability compensation with the Veterans Administration.  Interestingly, in 1983, he appealed for a change in the narrative reason for discharge so he could enlist in the Reserves.  During a personal appearance before the AFDRB, he indicated he desired reinstatement to active duty.  The applicant apparently felt fit enough for active service seven years after his discharge.  He has submitted no persuasive evidence demonstrating that, at the time of his separation, he suffered from an unfitting condition requiring processing through the Air Force disability evaluation system, his voluntary resignation was coerced, or his requested honorable discharge for miscellaneous reasons was unjust or improper.  Title 38, USC, which governs the DVA system, allows awarding compensation for acquired and altered conditions that were not unfitting for military service but could affect a person’s life style and future employability.  The applicant has a claim before the DVA, and this seems to be the appropriate avenue for his medical condition.  We therefore agree with the recommendations of the Air Force and adopt the rationale expressed as the basis for our decision that the applicant has not sustained his burden of having suffered either an error or an injustice.  In view of the above and absent persuasive evidence to the contrary, we find no compelling basis to recommend granting the relief sought.

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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 4 April 2006 under the provisions of AFI 36-2603:

The following documentary evidence relating to AFBCMR Docket Number BC-2004-01029 was considered:

   Exhibit A.  DD Form 149, dated 25 Aug 05, w/atchs.
   Exhibit B.  Applicant's Limited Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/DPPD, dated 28 Nov 05.
   Exhibit D.  Letter, SAF/MRBR, dated 2 Dec 05.
   Exhibit E.  Letter, Applicant, dated 28 Dec 05, w/atchs.