RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBERS:  BC-2004-01521
		INDEX CODE 108.09
	 	COUNSEL:  None

	 	HEARING DESIRED:  No

_________________________________________________________________

APPLICANT REQUESTS THAT:

His former grade of senior airman (SRA) be restored so he may retire in that grade rather than as an airman first class (A1C).

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was in the process of receiving his SRA grade back but his “files were frozen” while he was being processed through the Air Force Disability Evaluation System (DES), which precluded his promotion.

The applicant’s complete submission is at Exhibit A. 

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 26 Dec 91. During the period in question, he was assigned to the 27th Supply Squadron at  AFB, as a fuels distribution journeyman.  He was promoted to the grade of SRA on 26 Dec 94.

A 24 Sep 96 Medical Summary reported the applicant had approximately four months of lower back pain with little response to physical therapy, rest, traction, and medication. A Medical Evaluation Board (MEB) was recommended if the applicant’s pain persisted for more than six months.  In Oct 96, he was referred to the  AFB Mental Health Clinic (MHC) for assistance in coping with his chronic pain. 

On 16 Dec 96, applicant was notified of his commander's intent to impose nonjudicial punishment upon him for the following:

		-- Between, on or about 11-29 Oct 96, near  AFB, the applicant wrote three checks totaling $262.47 and had insufficient funds to cover them.

		-- On or about 1 Nov 96, he wrote a check to the Army & Air Force Exchange Service for $90.00 and had insufficient funds to cover it.

		-- On or about 1 Nov 96, he wrote a check to the  AFB Nonappropriated Lodging Fund for $14.00 and had insufficient funds to cover it.

The applicant consulted counsel, waived his right to court-martial, requested a personal appearance and submitted a written presentation.  On 20 Dec 96, the commander found him guilty and imposed punishment in the form of reduction to the grade of airman and restriction to the base for 60 days.

The applicant appealed and, on 31 Dec 96, the appellate authority granted his appeal “in full,” and imposed punishment in the form of reduction to the grade of A1C, rather than airman, and restriction to the base for 60 days. [The applicant’s appeal submission was not included in his available military records.] His date of rank (DOR) for A1C was 31 Dec 96.  The Article 15 was filed in the applicant’s Unfavorable Information File (UIF).

On 31 Jan 97, the Enlisted Performance Report (EPR) for the period 31 Jan 96 through 30 Jan 97 was referred to the applicant. He was marked “Unacceptable” in on/off duty conduct and “Ineffective” in supervisory/leadership skills. Both the rater and the indorser gave the applicant a promotion recommendation of “1”—not recommended. The rater cited the applicant’s substandard performance, repeated failure to meet financial obligations for more than a year, unprofessional behavior towards superiors, and failure to meet standards on several occasions. The applicant submitted comments, but the indorser concurred with the rater’s evaluation and recommended against promotion and retention. The commander provided a Supplemental Evaluation Sheet and noted the applicant received counselings, two Letters of Reprimand (LORs), and an Article 15. However, the commander did not agree with the “1” rating and upgraded the EPR to an overall rating of “2.”  The commander allowed that the applicant’s overall conduct and leadership, while unacceptable, could be partially attributed to medical problems.  The applicant’s EPRs prior to this referral report received the highest overall recommendation of “5.”

An Informal Physical Evaluation Board (IPEB) convened on 7 Mar 97 and recommended the applicant be placed on the Temporary Disability Retirement List (TDRL) with a 30% rating for pain disorder associated with general medical condition, mechanical low back pain, definite industrial impairment. The applicant concurred with the findings on 14 Mar 97.

Since the applicant had previously held the higher grade of SRA from 26 Dec 94 to 19 Dec 96, his case was forwarded to the Secretary of the Air Force Personnel Council (SAFPC) for a grade determination. On 28 Mar 97, SAFPC determined the applicant did not serve satisfactorily in any higher grade than A1C, in accordance with Title 10, United States Code, Section 1372, grade upon retirement for physical disability.

On 4 Jun 97, after five years, five months, and nine days of active service, the applicant was placed on the TDRL for temporary disability in the grade of A1C. The applicant would be required to undergo periodic medical evaluations while on the TDRL.

An 6 Nov 98 Narrative Summary by Wilford Hall Medical Center (WHMC) reported the applicant’s first TDRL evaluation. The Summary noted the applicant had an exceptionally thorough workup for his back pain, including consults with Neurosurgery, Physical Medicine and Rehabilitation, a neurologist and an anesthesiologist. However, none of the workups demonstrated any physical cause for his back pain. The applicant was first referred to the Cannon MHC for a commander-directed evaluation in Feb 96 after he had made some threatening comments about, and related to, his supervisor/flight chief while alcoholically intoxicated. No psychiatric diagnosis was made at that time. Diagnosis was pain disorder associated with both psychological factors and chronic mechanical low back pain.  Continuance on the TDRL was recommended.

A 6 Feb 99 TDRL evaluation at WHMC reported the applicant indicated the onset of low back pain in Mar 96. Specifically not noted in his original dictation was a reported fall, and the pain started that evening. The applicant reported his pain was 75% back pain and 25% leg pain. The applicant had failed all therapy regimens and was not significantly improving. 

Another IPEB convened on 24 Feb 99 and reported the applicant’s medical condition had essentially remained the same as when he was placed on the TDRL and would not significantly change in the next several years. The applicant was found unfit because of pain disorder associated with mechanical chronic low back pain, definite social and industrial adaptability impairment. Permanent retirement at 30% was recommended. On 24 Mar 99, the applicant nonconcurred with the recommended findings, waived a formal hearing, and submitted a written rebuttal. In his rebuttal, the applicant raised the issue of regaining his rank of SRA, which he contended he was in the process of getting back when he was first placed on the TDRL, and requested retirement at 45% in the rank of SRA.

The case was referred to SAFPC for final disposition. In a 16 Apr 99 evaluation, SAFPC noted the applicant’s chronic pain condition and low back pain were associated conditions and he could be rated for one or the other. The evidence for his impairment for disability was higher in the mental health rating, at 30%, than for his low back pain, which would only rate 10%. SAFPC was sympathetic with the applicant’s continuing symptoms, but noted the DES could only offer compensation for conditions rendering a member unfit for continued active service and then only for the degree of impairment present at the time of separation. The applicant was directed to be removed from the TDRL with a disability rating of 30%. 

The applicant was removed from the TDRL effective 6 May 99 and retired in the grade of A1C for medical disability at 30%.  

_________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/DPPD concludes a review of the preponderance of evidence determined the applicant was treated fairly throughout the DES process and was properly rated under governing directives at the time of his medical retirement. They find no rationale or justification for restoring his SRA rank based on the grade determination completed at the time of his disability processing. Therefore, denial is recommended. 

A complete copy of the evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A complete copy of the Air Force evaluation was forwarded to the applicant on 4 Jun 04 for review and comment within 30 days.  As of this date, this office has received no response.

_________________________________________________________________

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. After a thorough review of the evidence of record and the applicant’s submission, we are not persuaded his SRA grade should be restored. The applicant has not shown the Article 15 he received for writing bad checks and the resultant reduction from SRA to A1C was unfounded or unjust. On 28 Mar 97, SAFPC determined he had not served satisfactorily in the grade of SRA and accordingly denied reinstatement of the higher grade for the purpose of retirement in that grade. In addition, the applicant has not provided evidence his commander attempted to restore the SRA grade. We agree with the recommendations of the Air Force and adopt the rationale expressed as the basis for our decision that the 
applicant has failed to sustain his burden of having suffered either an error or an injustice. Therefore, we find no compelling basis to recommend granting the relief sought.

_________________________________________________________________

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.

_________________________________________________________________

The following members of the Board considered this application in Executive Session on 22 July 2004 under the provisions of AFI 36-2603:

The following documentary evidence relating to AFBCMR Docket Number BC-2004-01521 was considered:

   Exhibit A.  DD Form 149, dated 8 May 04.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/DPPD, dated 27 May 04.
   Exhibit D.  Letter, SAF/MRBR, dated 4 Jun 04.