RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-03792
		INDEX CODE:  108.01
		COUNSEL:  NONE
		HEARING DESIRED:  YES

MANDATORY CASE COMPLETION DATE: 13 JUNE 2006

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APPLICANT REQUESTS THAT:

He be given a medical retirement.  

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APPLICANT CONTENDS THAT:

The Air Force Informal Physical Evaluation Board disapproved his medical retirement for an injury incurred while serving in Iraq in support of Operation Iraqi Freedom.  He was a Reservist with 22 years of service.  He is entitled to a medical retirement for the injury he sustained while deployed to Iraq.  

In support of his request, applicant provides a personal statement, a copy of his Special Mission Travel Order for participation in Operation Enduring Freedom or Iraqi Freedom, and copies of service and civilian medical records.  The applicant’s submission, with attachments, is at Exhibit A.
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STATEMENT OF FACTS:

On 7 July 2003, the applicant, a member of the Air Force Reserve, was released from active duty in Support of Operation Noble Eagle/Enduring Freedom/Iraqi Freedom due to demobilization.  During this period he served as a Radio Communication Systems Craftsman. 

On 30 August 2004, based on the applicant’s history of cervical (C5-7) and Lumbar (L4-5) fusions and continued headaches and numbness in fingers, while deployed in support of Operation Enduring Freedom and Iraqi Freedom from 9 July 2003 to 5 September 2003, a Medical Evaluation Board (MEB) convened to consider his case.  The MEB rendered a diagnosis of profoundly restricted cervical spine ROM secondary to fusion C3-7 with residual musculo-skeletal pain in neck and trapezius.  On 1 October 2004, an Informal Physical Evaluation Board was convened to consider his case.  Under Category I, the board found the applicant possessed no unfitting conditions which were compensable and ratable.  Under Category II (conditions that could be unfitting but were not currently compensable or ratable, the board rendered a diagnosis of “Neck pain status post fusion C3-7, EPTS, without service aggravation.”  The board found the applicant was unfit because of a disability not incurred while entitled to receive basic pay.  The board recommended he be discharged under other than Chapter 61, Title 10 with a disability rating of 20 percent.  On 27 October 2004, the applicant agreed with the findings and recommendations of the IPEB and waived his right to a formal hearing.  Under the provisions of Title 10, United States Code, Section 12731, the applicant was entitled to retired pay at age 60.

On 12 November 2004, the applicant submitted his request for retirement.  Effective 28 November 2004, the applicant was assigned to the Retired Reserve Section Awaiting Pay at age 60 ().  His assignment to the Retired Reserve Section was in the grade of grade of master sergeant with a date of rank of 1 May 2003.  He was credited with 21 years, 10 months and 26 days of satisfactory Federal service.  

The remaining relevant facts pertaining to this application, extracted from the available medical records, are contained in the letter prepared by the BCMR Medical Consultant at Exhibit C.

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AIR FORCE EVALUATION:

The BCMR Medical Consultant opines that the preponderance of the evidence of record indicates the active military service while deployed for a period of more than 30 days permanently aggravated the applicant’s neck pain status post fusion C3-7, and records should be changed to show a recommendation for disability discharge with severance pay.  The BCMR Medical Consultant advises that the IPEB properly rated the cervical spine under VA Schedule for Rating Disabilities (VASRD) code 5241 for spinal fusion.  The evidence of record shows minimal disability at the time the applicant deployed even though he had significant degenerative spine disease that existed prior to service.  The BCMR Medical Consultant advises the DVA has rated his neck condition under the code for intervertebral disc syndrome with the same 20 percent rating.  The BCMR Medical Consultant’s evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 19 December 2005, a copy of the Air Force evaluation was sent to the applicant for review and comment.  As of this date, this office has not received a 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 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 approval of the applicant’s request for a medical retirement.  After a thorough review of the evidence of record and the applicant’s submission, we are not persuaded that his medical condition at the time of his release from active duty was of such severity to warrant retirement by reason of physical disability.  His contentions are duly noted; however, we do not find these assertions sufficiently persuasive to recommend favorable action.  

4.  While we determined that the applicant is not entitled to a disability retirement, sufficient relevant evidence has been presented to demonstrate the existence of error or injustice warranting a correction to his record to show a recommendation for disability discharge with severance pay.  After reviewing the evidence of record, the BCMR Medical Consultant opines that the preponderance of the evidence of record indicate that active military service while deployed for a period of more than 30 days permanently aggravated the applicant’s neck pain status post fusion C3-7.  Having seen no evidence that would lead us to believe the contrary is the case, we agree with the BCMR Medical Consultant that the applicant’s condition was permanently aggravated by service and was recommended for discharge with severance pay at a disability rating of 20 percent.  Therefore, 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 XXXXX, be corrected to show that on 28 November 2004, his name was not placed on the Retired Reserve List, but on that date it was determined that his disabling condition (Neck pain status post fusion C3-7, VASRD Code 5241) was permanently aggravated by service rated at 20 percent and he be given the option of being discharged with severance pay.

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The following members of the Board considered this application AFBCMR Docket Number 04-03792 in Executive Session on 31 January 2006, under the provisions of AFI 36-2603:

All members voted to correct the record as recommended.  The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 6 Dec 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, BCMR Medical Consultant, dated 15 Dec 05.
    Exhibit F.  Letter, SAF/MRBR, dated 19 Dec 05.

                                   

AFBCMR BC-2004-03792

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 28 November 2004, his name was not placed on the Retired Reserve List, but on that date it was determined that his disabling condition (Neck pain status post fusion C3-7, VASRD Code 5241) was permanently aggravated by service rated at 20 percent and he be given the option of being discharged with severance pay.