RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-00841

xxxxxxxxxxxx	COUNSEL: XXXXXXXXXXX

	HEARING REQUESTED: YES

APPLICANT’S REQUEST

His medical discharge with severance pay (DWSP) be changed to a medical retirement.

His grade be reflected as technical sergeant (E-6) on his final discharge document.

APPLICANT’S CONTENTIONS

He was at least 30 percent disabled when he was on active duty.  His cervical spine and lumbar spine injuries were bilateral and should have been rated more than 10 percent and his hearing, tinnitus, and bacterial patellofemoral syndrome should have been rated at 10 percent.  His Department of Veterans Affairs (DVA) disability rating from 1997 and 2003 show he was 30 percent disabled.  As of today, he is rated as 100 percent disabled by the DVA.

When he left the Air Force in 1992, he was a technical sergeant with an effective Date of Rank (DOR) of 1 Sep 90.  When he returned to active duty, he was improperly given the rank of staff sergeant with a DOR of 13 Feb 93.  He has no documentation or explanation for this demotion action.    

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former Air Force staff sergeant (E-5).

On 5 Mar 92, DD Form 214, Certificate of Release or Discharge from Active Duty, reflects the applicant was honorably discharged from the Air National Guard in the grade of technical sergeant (E-6) after serving 2 years, 6 months, and 15 days of active duty with prior active service of 3 years, 4 months, and 12 days.  He was discharged, with a narrative reason for separation of “Released from Active Duty.”

On 7 Jan 97, DD Form 214, Certificate of Release or Discharge from Active Duty, reflects the applicant was honorably discharged in the grade of staff sergeant (E-5) after serving 4 years, 10 months, and 2 days of active duty.  He was discharged, with a narrative reason for separation of “Completion of Required Active Service.”

On 5 Nov 02, AF IMT 618, Medical Board Report, indicates the applicant was referred to the Informal Physical Evaluation Board (IPEB) for cervical spine radiculopathy, lumbar spine radiculopathy, hearing loss, and retro patellar pain syndrome.

Dated 19 Nov 02, AF Form 356, Informal Findings and Recommended Disposition of USAF Physical Evaluation Board, indicates the applicant’s medical conditions of cervical spine radiculopathy, lumbar spine radiculopathy, hearing loss, and retro patellar pain syndrome were found as conditions that can be unfitting but are not currently compensable or ratable.  The Board noted his conditions did not prevent him from reasonably performing less strenuous duties of his office, grade, rank, or rating finding the applicant fit with a with a recommendation of “Return to Duty.”

Dated 16 Jun 03, AF Form 356, Informal Findings and Recommended Disposition of USAF Physical Evaluation Board, indicates the applicant was found unfit due to his medical condition of cervical spondylosis and lumbar spine degenerative disk disease with a combined disability compensation rating of 20 percent with a recommendation of “DWSP.”

On 20 Jun 03, AF Form 1180, Action on Physical Evaluation Board Findings and Recommended Disposition, indicates the applicant agreed with the findings and recommended disposition of the PEB and waived his rights to a formal PEB hearing.

On 27 Jun 03, DD Form 214, Certificate of Release or Discharge from Active Duty, reflects the applicant was honorably discharged in the grade of staff sergeant (E-5) after serving 3 years and 27 days of active duty.  He was discharged, with a narrative reason for separation of “Disability, Severance Pay.”

On 15 Jun 20, the applicant’s case was reviewed by the Personnel Board of the Secretary of the Air Force Personnel Council (SAFPC), under the authority delegated by the SAF for consideration of his request for a re-characterization of the separation or modification of his disability rating.  The Board concurred with the recommendation of the pervious board for a disposition of DWSP noting there was no DVA examination proximate to his separation in evidence.

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisories at Exhibits C and D.

APPLICABLE AUTHORITY

AFI 36-3212, Physical Evaluation for Retention, Retirement, and Separation, paragraph 5.15.3 states members permanently retired for disability or placed on the temporary disability retired list (TDRL) retire in the higher grade in which the member served satisfactorily on active duty, as determined by the SAF.  Service in the higher grade is usually satisfactory unless the higher grade was terminated for cause.

AFI 36-3202, Certificate of Release or Discharge from Active Duty (DD Form 214/5 Series). The DD Form 214 is a document used to separate an airman from the Regular Air Force or Air Reserve Component airmen from active duty.  It provides an accurate and complete summation of active duty service at the time of transfer, release, discharge, or change of component or status while on active duty. 

DD Form 214, Certificate of Release or Discharge from Active Duty, Personnel Services Delivery (PSD) Guide, Section E, Table 5 (How to Prepare the DD Form 214).  The active duty grade held at the close out date of the DD Form 214 will be placed in item 4a (Grade or Rank).  

AIR FORCE EVALUATION

The AFBCMR Medical Advisor recommends granting the applicant’s request for an increase in his medical disability rating, finding the applicant’s right upper extremity radiculopathy unfitting and rated at 20 percent and his right S1 radiculopathy individually unfitting and rated a 10 percent. When combined with his existing 20 percent rating results in eligibility for a medical retirement with a combined disability rating of 40 percent. This recommendation is consistent with the applicant’s clinical evaluation, radiographic assessment in 2003, and DoDI 1332.39, Application of the Veterans Administration Schedule for Rating Disabilities (VASRD), paragraph E2.1.1.19.6; in effect at the time of applicant’s discharge.  Since the applicant previously petitioned the PDBR to address the disability ratings for his cervical and lumbar spine conditions, he is not eligible for review of the same medical conditions by the Military Departments BCMR.  However, this advisor is not certain if the PDBR addressed the applicant’s radicular symptoms; and if so, whether or not there was any consideration for its fitness or unfitness.  

The Medical Advisor acknowledged the rationale for the applicant’s request for, at least, a 30 percent disability rating and retirement; since he had received such a rating for his claimed medical conditions following a previous period of service; which was terminated after re-entering another period of active service, but restored upon separation.  However, service-connection and disability ratings assigned by the DVA do not determine a current or former service member’s fitness to serve.  Indeed, historically some Reserve component members have qualified for compensation from the DVA for service-incurred medical conditions, even though concurrently serving in the Military Department.  Thus, the fact that the applicant received a 30 percent disability rating from the DVA at the end of a previous period of service, for which he was given a waiver to re-enter military service, does not warrant an automatic unfit finding and eligibility for retirement for the same conditions, following a subsequent period of military service. The condition(s) must be shown to have prevented the member from reasonably performing the duties of his or her office, grade, rank, or rating.  In the case under review, it was the applicant’s cervical spine and lumbar spine conditions that were the preponderant basis for a repeat MEB in 2003 and the unfit finding.   The applicant is advised that, operating under Title 10, United States Code (U.S.C.), the Military Department only assigns disability ratings to the condition(s) which was (were) the cause for career termination; and then based only upon the clinical presentation at the “snapshot” time of final military disposition and not based upon future progression of injury or disease.  On the other hand, operating under a different set of laws, Title 38, U.S.C., the DVA is authorized to offer compensation for any medical condition determined service-incurred, without regard to its proven or demonstrated impact upon a member’s retainability, fitness to serve, or length of time passed since date of discharge.  This is the reason an individual may receive disability compensation from the DVA for a number of medical conditions, but which were not proven militarily unfitting at the time of discharge.  As also demonstrated in the case under review, the DVA is empowered to adjust disability ratings [increase or decrease] as the level of impairment or clinical presentation of a given medical condition may vary [improve or worsen] over the lifetime of the veteran.  Attention is now directed to paragraphs from DoDI 1332.39, Application of the Veterans Administration Schedule for Rating Disabilities, in effect at the time of the applicant’s discharge, with respect to the applicant’s cervical and lumbar radiculopathy, which read, E2.A1.1.19.5. Residual cervical pain with radiculopathy, status-post excision of a herniated disc should be rated for the pain (5003) or limitation of motion (5290) and for the radiculopathy under the appropriate 8500 series code.  E2.1.1.19.6. Residual lumbar pain with radiculopathy should be rated as 5295 and the relevant code for neurological impairment.  While the applicant’s post-operative upper extremity symptoms were initially resolved and not initially characterized a constant or unrelenting, the Medical Advisor opines that the 18 Apr 03 addendum note, describing “persistent right-sided discomfort, rated a 7/10 scale, that radiates from his deep deltoid to his right triceps to the index finger” was suggestive of a residual C7 cervical radiculopathy.  Although a DVA Decision Review Officer (DRO) ultimately granted a 20 percent rating for cervical radiculopathy in its 24 Nov 14 decision, made effective 18 Aug 04, this is also not determinative that the condition was individually unfitting condition at the “snapshot” time of discharge in 2003.  The above DoD policy statements make no distinction between sensory versus quantifiable motor deficits.  However, the Medical Advisor opines the evidence is more compelling for the applicant’s lumbar spine S1 radiculopathy, as acknowledged on the AF Form 618, [lumbar degenerative disk disease, with herniated disks at L4-5 and L5-S1, with resulting chronic radicular symptoms], the clinical examination findings listed in the MEB NARSUM [identifying right lower extremity muscle weakness, and positive right straight-leg raise test], as acknowledged by the PEB on the AF Form 356, [lumbar spine degenerative disc disease with herniated disc at L4-L5 and L5-S1 , with resulting chronic radicular symptoms], and supported by the MRI scan depicting “paracentral disc herniation impacting the S1 nerve root.” The Medical Advisor opines these collective factors are consistent with the extract from DoDI 1332.39, and, thus, warrant consideration of a separate ratable unfit finding for right lumbar radiculopathy, rated at 10 percent  under VASRD code 8520.

The complete advisory opinion is at Exhibit C.

AFPC/DP2LT recommends denying the applicant’s request for a restoration of his grade to technical sergeant (E-6).  Per AFI 36-2002, Regular Air Force and Special Category Accessions, paragraph A4.2.3, dated Jul 94, the minimum total active federal military service (TAFMS) requirements for enlistment in a higher pay grade than last held in the Regular Air Force or when last Regular component was non-USAF for the applicant to maintain TSgt/E-6, would be 10 years of TAFMS; however, as of 6 Mar 93 the applicant did not meet the requirement.

The complete advisory opinion is at Exhibit D.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 24 Aug 21 for comment (Exhibit E), but has received no response.

FINDINGS AND CONCLUSION

1.  The application was timely filed.

2.  The applicant exhausted all available non-judicial relief before applying to the Board.

3. After reviewing all Exhibits, the Board concludes the applicant is the victim of an error or injustice.  The Board concurs with the rationale and recommendation of the AFBCMR Medical Advisor and finds a preponderance of the evidence substantiates the applicant’s contentions in part.  Specifically, the applicant has provided medical evidence, which is sufficient to justify granting the applicant’s request to change his discharge with severance pay (DWSP) to a medical retirement.  However, for the remainder of the applicant’s request, the evidence presented did not demonstrate an error or injustice as the applicant did not meet the minimum 10-year total active federal military service requirement to maintain TSgt/E-6 as of 6 Mar 93.  Therefore, the Board finds no basis to recommend granting that portion of the applicant’s request.  Furthermore, the Board recommends correcting the applicant’s records as indicated below.

4.  The applicant has not shown a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved.

RECOMMENDATION

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show the following:

a.	On 16 June 2003, he was found unfit to perform the duties of his office, rank, grade, or rating by reason of physical disability, incurred while he was entitled to receive basic pay. The inclusion of a diagnosis for right lumbar radiculopathy, under VASRD code 8520, rated at 10 percent, and right upper extremity radiculopathy, under VASRD code 8514, rated at 20 percent, when combined with his initial disability rating of 20 percent due to cervical spondylosis and lumbar spine degenerative disk disease, results in a combined [not added] disability rating of 40 percent.  It is noted, the degree of impairment was permanent; the disability was not due to intentional misconduct or willful neglect; the disability was not incurred during a period of unauthorized absence; and the disability was not as a direct result of armed conflict or caused by an instrumentality of war and was not combat-related.

b.	On 27 June 2003, he was discharged from active duty and on 28 June 2003, he was permanently retired with a compensable percentage for physical disability of 40 percent.

c.	His election of the Survivor Benefit Plan option will be corrected in accordance with his expressed preferences and/or as otherwise provided for by law or the Code of Federal Regulations.  

However, regarding the remainder of the applicant’s request, the Board recommends informing the applicant the evidence did not demonstrate material error or injustice, and the application will only be reconsidered upon receipt of relevant evidence not already considered by the Board.
CERTIFICATION

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2021-00841 in Executive Session on 23 Nov 21:

, Panel Chair
, Panel Member
, Panel Member

All members voted to correct the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 23 Oct 20.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFBCMR Medical Advisor, dated 25 Jun 21.
Exhibit C:	Advisory opinion, AFPC/DP2LT, atchs, dated 11 Aug 21.
Exhibit E:	Notification of advisory, SAF/MRBC to applicant, dated 24 Aug 21.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings, as required by AFI 36-2603, paragraph 4.11.9.