RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  92-02527

            COUNSEL:  DAV

            HEARING DESIRED:  YES

___________________________________________________________________

APPLICANT REQUESTS THAT:

His records be corrected to reflect a zero (0)  percent  disability
rating, rather than ten (10) percent.

His request to have his retired  pay  computed  based  on  his  ten
percent disability rating rather than years of service  credits  be
voided.

His Survivor Benefit Plan (SBP) election for former spouse coverage
be terminated.

___________________________________________________________________

APPLICANT CONTENDS THAT:

By letter, dated 9 February 1993, applicant stated that the Defense
Finance and Accounting Service (DFAS) offered him an opportunity to
elect retirement based on the ten percent  disability  rating.   In
his final decree of divorce on 12 August 1991,  his  former  spouse
agreed to accept 46% of his disposable  retired  pay.   He  elected
retired pay based on the ten percent disability rating;  thus,  his
former spouse received no disposable retired pay.  According to the
Texas Divorce Court Law his election was unlawful.   Therefore,  he
requests reinstatement of his retired pay based on years of service
credit retroactive to February 1992.

Documentation submitted in support of applicant's  appeal  included
copies of correspondence to/from his  former  commander  concerning
his retirement for disability, copies  of  documentation  submitted
with his rebuttals to  the  findings  of  the  Physical  Evaluation
Boards (PEBs), and documentation pertaining to the  change  of  his
pay status, and his  continuing  educational  accomplishments,  and
licenses.  Applicant’s complete submissions are at Exhibit A.

___________________________________________________________________

STATEMENT OF FACTS:

On 25 August 1967, applicant  was  appointed  a  first  lieutenant,
Nurse Corps (NC), Reserve of the Air  Force.   He  was  ordered  to
extended active duty on 11 November 1967.  He served on  continuous
active duty; was integrated into the Regular component on 17  April
1975; and was progressively promoted to the grade of colonel.

The following is a chronology of events leading to the placement of
applicant's name on the Temporary Disability  Retired  List  (TDRL)
and subsequent placement on the Permanent Disability  Retired  List
(PDRL).

On 2 June 1988, a  Medical  Evaluation  Board  (MEB)  convened  and
established the following diagnoses:  (1) DSM III R 290.10, Primary
Degenerative Dementia, presenile, uncomplicated,  possibly  of  the
Alzheimer's type.  Social and Industrial (S&I) Impairment:  Severe;
(2) Rule out DSM III R 294.10, Other Organic  Causes  of  Dementia,
specifically sleep apnea syndrome, considered unlikely; (3) Chronic
Pansinusitis; probable fungal etiology.  S/P 1986 left septoplasty,
Jan 88 right Caldwell-Luc procedure and 10  May  88  left  external
ethomoidectomy, spenoidectomy and left Caldwell-Luc procedure  with
findings of extensive  polyposis;  under  treatment;  (4)  Reactive
airway disease exacerbated by chronic sinusitis, on treatment;  (5)
Peptic ulcer disease, S/P  9 Apr  88  episode  of  hematemesis,  on
medical treatment;  (6)  S/P/O  Jan  76  left  Hemicolectomy  after
diagnosis of colon carcinoma Duke's Stage  2B;  with  no  signs  of
recurrence, by patient's  history  with  no  records  available  to
confirm; (7) History of hemorroids with  1986  hemorroidectomy,  by
patient's history with no records available  to  confirm;  (8)  S/P
1963 MVA sustaining penetrating chest injury and  resultant  pectus
excavatum deformity; (9) Mitral Valve Prolapse, asymptomatic.   The
MEB recommended the case be referred  to  the  Physical  Evaluation
Board (PEB).

On 8 June 1988, the Informal  PEB  (IPEB)  reviewed  the  case  and
recommended applicant's name be placed on the TDRL, with a combined
compensable rating of 70%,  for  the  diagnoses  of:   (1)  primary
degenerative  dementia  with  severe  impairment  of   social   and
industrial  adaptability,   and   (2)   reactive   airway   disease
exacerbated by chronic sinusitis.  Other diagnoses  considered  but
not ratable were:  Peptic ulcer disease, on treatment; status  post
Jan 76 hemicolectomy  secondary  to  carcinoma;  status  post  1986
hemorroidectomy; mitral valve prolapse, asymptomatic, EPTS (existed
prior to service) without service aggravation.   On  22 June  1988,
applicant disagreed with the findings and  recommended  disposition
of the IPEB hearing and demanded a formal hearing of the case.

Applicant and his counsel appeared before the Formal PEB on 29 July
1988.  After reviewing all of the evidence, the  Formal  PEB  found
the applicant physically unfit for military service and recommended
temporary retirement with a compensable rating of  80  percent  for
the diagnoses of:  (1) Primary degenerative  dementia  with  severe
impairment of social  and  industrial  adaptability;  (2)  Reactive
airway disease exacerbated by chronic  sinusitis;  and  (3)  Peptic
ulcer disease, on treatment.  Other diagnoses  considered  but  not
ratable were:   Status  post  Jan  76  hemicolectomy  secondary  to
carcinoma; status post 1986 hemorroidectomy; mitral valve prolapse,
asymptomatic, EPTS without service aggravation.  On  29 July  1988,
applicant agreed with the findings and recommended  disposition  of
the PEB.

Effective 18 October 1988, applicant's name was placed on the TDRL,
with a compensable disability rating of 80%.

Applicant's first TDRL reexamination was on  10  April  1990.   The
Informal PEB recommended the applicant be permanently retired  with
a 10% compensable disability rating for  organic  mental  disorder,
NOS, with mild impairment of social  and  industrial  adaptability.
Other diagnoses  considered  but  not  ratable  were:   History  of
chronic pansinusitis, status post surgery 1989;  history  of  colon
carcinoma (12 years ago); history of GI bleed  (1989);  history  of
reactive airway disease.  On 30 June 1990, the applicant  disagreed
with  the  recommended  findings,  waived  a  formal  hearing   and
submitted a written rebuttal.

On 13 August 1990, the Air Force Personnel Board (AFPB) agreed with
the  assessment  by  the  psychiatrist  who  performed   the   TDRL
reevaluation that the applicant had definite impairment  of  social
and industrial adaptability.  The AFPB noted the concern  expressed
by that physician that there was a  question  as  to  the  risk  of
"recurrence"  or  worsening  of  the   disorder   and,   therefore,
recommended applicant's retention on the  TDRL  with  a  disability
rating of 30 percent.  On 10  November  1990,  applicant  concurred
with the revised findings.

Applicant's second TDRL reexamination was on  30  July  1991.   The
Informal PEB recommended applicant be permanently  retired  with  a
compensable disability rating of 10% for organic  mental  disorder,
NOS, residual manifested  primarily  by  mild  attention  problems.
Mild social and industrial  impairment.   It  was  noted  that  the
applicant  was  full-time  employed  and  his  work  was  adequate.
Although he had improved since his last evaluation, he continued to
exhibit mild attentional deficits.  In  the  opinion  of  the  PEB,
applicant's condition was best  described  as  mild  impairment  of
social  and  industrial  adaptability.   The  PEB  considered   his
condition to be sufficiently stable to warrant recommending a final
disposition.

On 7 September 1991, applicant nonconcurred  with  the  recommended
findings,  waived  a  formal  hearing,  and  submitted  a   written
rebuttal.  On 26 September 1991, the Secretary  of  the  Air  Force
directed applicant's name be placed on the PDRL, with a  disability
rating of ten percent.

Effective 10 October 1991, applicant was permanently retired with a
10% compensable disability rating.  He was credited with 20  years,
11 months, and 7 days of active service for retirement.

On 19 November 1991, the Defense Finance and Accounting  Service  -
Denver Center (DFAS-DE) advised applicant  of  his  retirement  for
permanent disability with computations of his retired pay based  on
years of service and on his disability rating of 10%.  He was given
the option of selecting retired pay based on his disability  rating
provided the request was received within 45 days.  His retired  pay
account was established based  on  the  computation  for  years  of
service  since  it  was  more  advantageous.    By   letter   dated
21 December 1991,  applicant  elected  retired  pay  based  on  his
disability rating.  Since  his  request  was  received  within  the
stipulated time frame, his pay account was adjusted to reflect  the
reduced retired pay beginning with the  period  ending  31  January
1992.

On 11 August 1988, applicant elected Survivor  Benefit  Plan  (SBP)
spouse only coverage, based on a maximum annuity.  He and his  wife
were divorced on 12 August 1991.  The former spouse was awarded 46%
of his disposable retired pay and the maximum  SBP  he  elected  at
retirement.  On 27 January 1992, he requested  that  former  spouse
coverage be established at the absolute minimum  of  the  base  pay
amount.

___________________________________________________________________

AIR FORCE EVALUATION:

The Board for Correction of  Military  Records  (BCMR)  Consultant,
AFMPC/DPMMMR, obtained an evaluation  from  the  Surgeon  General's
Consultant for  Psychiatry,  who  recommended  that  the  applicant
receive  another  evaluation.   The  Surgeon  General's  Consultant
recommended the records be corrected to show the applicant was  not
placed on the Permanent Retired List on  14  August  1991  but  was
continued on the TDRL.  He recommended  applicant  be  directed  to
report to Wright-Patterson AFB for a TDRL reexamination.

The DPMMMR evaluation, with the evaluation provided by the  Surgeon
General's Consultant, is at Exhibit C.

The USAF Physical Disability  Division,  AFMPC/DPMAD,  stated  that
when the applicant was  permanently  retired,  the  diagnosis  was,
"Organic mental disorder, NOS,  residual  manifested  primarily  by
mild attentional problems.  Mild social and industrial impairment."
 Diagnostic code 9312 gives a 10 percent rating for mild impairment
of social and industrial adaptability.

Regardless of what disability rating  the  applicant  received,  he
would still be regarded as disabled.  Therefore, since all  actions
taken on his case were correct and  since  the  applicant  has  not
submitted any evidence to justify changing his disability rating to
zero  percent,  DPMAD  recommended  disapproval  of  his   request.
(Exhibit D)

The Retirements Branch, AFMPC/DPMARA, provided comments  addressing
applicant's SBP election.  DPMARA stated that on 21 December  1991,
applicant submitted a request that his retired pay be based on  the
ten percent disability.  His pay was reduced from  $2,521  to  $481
per month; therefore, the SBP base amount and the monthly  premium,
as  well  as  the  former  spouse's  portion  of  the   applicant's
disposable retired pay, were reduced.

If the Board voids applicant's request  to  have  his  retired  pay
computed at the 10 percent disability rate, his  retired  pay  will
return to the level it was prior to 10 October 1991,  as  increased
by  cost-of-living  adjustments  since  that  date.   There  is  no
provision in the laws controlling the SBP that would allow  him  to
decrease the base amount of the former spouse coverage he  elected.
(Exhibit E)

The Directorate of Retired and Annuitant Pay, DFAS-DE, reviewed the
application   and   determined   they   are   unable   to   provide
administrative relief.

DFAS-DE stated that, on 30 December 1991, they received applicant's
21  December  1991  letter  electing  retired  pay  based  on   his
disability rating rather than on his years of service.   Since  his
request was received within the  stipulated  time  frame,  his  pay
account was adjusted to reflect the reduced retired  pay  beginning
with the period ending 31 January 1992.  (Exhibit F)

___________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

By letter, dated 17 November 1992, applicant stated that he did not
object to being reevaluated by Air Force Mental Health once  again,
as recommended by AFMPC/DPMMMR.  He did strongly object to going to
Wright-Patterson  AFB  Medical   Center   as   the   administrative
physicians there have worked very hard to shaft him in the past.

Applicant contends that the TDRL evaluations were performed at  the
Mental Health Clinic at Wright-Patterson AFB, and the reports  were
signed by the Psychiatry Resident even  though  she  never  visited
with him.

By letter, dated 25 March 1993, applicant advised that he had  been
employed full time as a nurse anesthetist since 25  September  1989
and that he had his employers  submit  statements  in  his  behalf.
Three  letters  of  recommendation  were  received  in  applicant's
behalf.

By letter, dated 26 April 1993, applicant  provided  a  copy  of  a
court order on motion for enforcement for money judgment for breach
of contract and breach of fiduciary duty, and  correspondence  from
DFAS-DE advising him to seek relief through the AFBCMR to have  his
full retirement pay reinstated.

By letter, dated 18 December 1993, applicant contends that, for the
Air Force to continue paying him the retired pay based on  the  10%
disability rating, would serve only to continue a severe injustice.
 He further stated that when he made his election, he did so out of
a fit of  resentment  toward  the  Air  Force,  as  he  judged  his
permanent retirement on 1 October 1991 to be equal to a bad conduct
discharge and dishonorable.

On 25 April 1994, applicant provided a copy of a Final Court Order,
dated 11 April 1994, wherein his former  spouse,  upon  receipt  of
$175,000 from the applicant, has forfeited her entitlement  to  any
further portions of applicant's military retirement pay and further
claims for the SBP.

By letter, dated 31 March 1995, applicant provided a statement from
his neurologist, extracts from his VA medical records and his  TDRL
records, and two statements concerning the findings  of  two  State
Boards of Nurse Examiners.

By letter, dated 14 January  1996,  applicant  provided  copies  of
documentation submitted with his earlier correspondences,  as  well
as documentation pertaining  to  a  15  December  1995  DVA  rating
decision.

Applicant’s responses are at Exhibit H.

On 15 December 1995, counsel’s 22 February  1995  response  to  the
advisory opinions was received  by  the  AFBCMR.   In  addition  to
documents  previously  submitted,  counsel  provided  a   statement
submitted in applicant’s behalf from the  Director,  Rehabilitation
Psychology and extracts from applicant’s DVA records dated  6 April
1995 and 15 June 1995 (Exhibit H1).

A  statement  was  received  in  applicant's  behalf  from  the  VA
Outpatient Clinic  concerning  a  recent  neurological  examination
(Exhibit H2).

___________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided  by  existing
law or regulations.

2.  The application was timely filed.

3.  Sufficient relevant evidence has been presented to  demonstrate
the existence of probable injustice warranting corrective action.

      a.  After careful consideration of  all  the  facts  of  this
case, we believe that the applicant’s retirement for disability may
have been based  on  an  erroneous  diagnosis.   In  this  respect,
following a period  of  observation  on  the  Temporary  Disability
Retired List (TDRL),  the  applicant  was  permanently  retired  by
reason of physical disability for the diagnosis of  organic  mental
disorder, NOS, residual manifested primarily  by  mild  attentional
problems; mild social and industrial  impairment.   However,  after
careful review  of  the  evidence  provided,  including  subsequent
medical opinions and the applicant's DVA records, it is our opinion
that his medical condition may have been secondary  to  a  surgical
procedure associated with his chronic sinus disease or secondary to
the debilitation caused by this illness,  rather  than  an  organic
mental disorder.  In addition, based on the evidence provided there
has been no evidence of organic mental disorder or  dementia  since
the applicant’s  retirement.   Furthermore,  as  evidenced  by  the
letters  of  reference  from  his  employers  and  co-workers,  the
applicant has been gainfully employed  as  a  certified  registered
nurse anesthetist since his retirement.  Based upon  the  available
evidence, we found no evidence that applicant’s  placement  on  the
TDRL was erroneous or contrary to the governing regulations when he
was found physically unfit for military service.   However,  we  do
believe there is some doubt as to the accuracy of his diagnosis  at
the  time  of  final  disposition.   Therefore,  to  preclude   any
injustice to the applicant, we believe that  any  doubt  should  be
resolved in his favor.  We note that the  applicant  has  requested
that his records be corrected to reflect a zero percent  disability
rating.  However, we believe that  by  correcting  his  records  to
reflect he was retired for years of service rather than  by  reason
of physical disability, he will  be  provided  fitting  and  proper
relief.  Accordingly, we recommend that the records be corrected as
indicated below.

      b.  In view of court order No. 5110-91, dated 11 April  1994,
wherein applicant’s former spouse has released  any  further  claim
for Survivor Benefit Plan (SBP) benefits,  applicant’s  request  to
terminate his former spouse coverage under  the  SBP  is  favorably
considered.

___________________________________________________________________

THE BOARD RECOMMENDS THAT:

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

      a.  On 10 October 1991, he was found fit for return to active
military service, and his  name  was  removed  from  the  Temporary
Disability Retired List (TDRL), and on that date, he  was  returned
to active military service in the grade of colonel.

      b.  On 31 October 1991, he  was  released  from  active  duty
under the provisions of AFR 35-7 and retired for length of  service
effective 1 November 1991.

      c.  On 7 February 1992,  he  did  not  elect  to  change  his
suspended Survivor Benefit Plan spouse coverage  to  former  spouse
coverage.

___________________________________________________________________

The following members of the Board considered this  application  in
Executive Session on 16 May 1996, under the provisions of  AFI  36-
2603:

      Mr. Teddy L. Houston, Panel Chairman
      Mr. Gregory H. Petkoff, Member
      Mr. Robert W. Zook, Member

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

     Exhibit A.  DD Form 149, dated 9 May 92, w/atchs; letter
                 from Applicant, dated 9 Feb 93, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFMPC/DPMMMR, dated 11 Sep 92, w/atch.
     Exhibit D.  Letter, AFMPC/DPMAD, dated 5 Oct 92.
     Exhibit E.  Letter, AFMPC/DPMARR3, dated 13 Jul 93.
     Exhibit F.  Letter, DFAS-DE, dated 19 Nov 93, w/atchs.
     Exhibit G.  Letters, AFBCMR, dated 12 Nov 92, 18 May 93,
                 8 Dec 93, 18 Nov 94.
     Exhibit H.  Letters from Applicant, dated 17 Nov 92, 17 Mar
                 93, 25 Mar 93, 26 Apr 93, 10 Jun 93, 18 Dec 93,
                 25 Apr 94, 31 Mar 95, and 14 Jan 96, w/atchs.
     Exhibit H1. Letter from counsel, dated 22 Feb 95, w/atchs.
     Exhibit H2. Letter from Dr. Vandersluis, dated 22 Aug 95.




                                   GREGORY H. PETKOFF
                                   Acting Panel Chairman








AFBCMR 92-02527




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 APPLICANT, be corrected to show that:

            a.  On 10 October 1991, he was found fit for return to
active military service, and his name was removed from the
Temporary Disability Retired List (TDRL), and on that date, he was
returned to active military service in the grade of colonel.

            b.  On 31 October 1991, he was released from active
duty under the provisions of AFR 35-7 and retired for length of
service effective 1 November 1991.

            c.  On 7 February 1992, he did not elect to change his
Survivor Benefit Plan spouse coverage to former spouse coverage.








       JOE G. LINEBERGER

       Director

       Air Force Review Boards Agency