RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  97-00121
            INDEX CODE:  145.00

            COUNSEL:  None

            HEARING DESIRED:  No


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APPLICANT REQUESTS THAT:

He be medically retired from active duty.

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APPLICANT CONTENDS THAT:

At the time he started processing for reassignment under Palace  Chase
in Jun 94, he was being examined for pain in his feet  that  had  been
going on for a few years and was  getting  worse.   He  spoke  to  the
doctor about a possible transfer and the  doctor  immediately  stopped
treatment and informed him that his new base would have to treat  him.
The doctor informed him that everything would  work  out  at  his  new
base.  However, when he checked in at his new base, no one knew who he
was or where he was supposed to be assigned.  He was asked to sign all
kinds of paperwork that did not make any sense.  Later, he was put  on
profile and given many different kinds of discharges;  none  of  which
were correct.  As a result of these errors in his discharge, he is not
receiving any retirement pay.  He is having great  difficulty  getting
proper Veterans Administration (VA) benefits and  he  and  his  family
have suffered greatly.

Applicant’s complete submission is attached at Exhibit A.

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STATEMENT OF FACTS:

On 28 Aug 85, an abnormality of pes planus (flat feet)  was  noted  on
applicant’s induction history and physical examination.   The  medical
examiner made a  notation  of  “judgment  call”  in  the  summary  and
diagnoses section of the report which allowed  applicant’s  processing
to continue.

On 1 Jul 87, applicant enlisted in the Regular Air Force (RegAF) for a
period of 4 years in the grade of  airman  basic.   He  was  honorably
discharged on 31 Oct 90 and reenlisted on 1 Nov 90 for a period  of  6
years in the grade of senior airman (E-4).

Applicant’s  Airman  Performance  Report  (APR)/Enlisted   Performance
Report (EPR) profile follows:

            PERIOD ENDING          OVERALL EVALUATION

              26 Jun 88                    9
              26 Jun 89                    4 (New rating system)
              26 Jun 90                    4
              31 Dec 90                    3
              21 Oct 91                    4
              21 Oct 92                    4
              21 Oct 93                    5
               8 Aug 94                    4

On 16 Jun 94, the  applicant  requested  to  be  separated  under  the
provisions of AFR 39-10, paragraph 2-14, for the purpose of  accepting
an assignment  to  an  Air  National  Guard  (ANG)/Air  Force  Reserve
position.

On 19 Aug 94, applicant was seen by a podiatrist for a routine medical
examination for worsening foot pain over the previous 6 weeks and  was
found to have bilateral pes planus.

On 12 Oct 94, the applicant  was  counseled  regarding  his  plans  to
transfer from active duty in the United States Air Force to a position
in the Selected Reserve of the Air Force under the provisions  of  the
Palace Chase Program.

On 12 Oct 94, the applicant was released from active  duty  under  the
provisions of AFR 39-10 (Intradepartmental Transfer) with an honorable
characterization of service and transferred  to  the  Reserve  Retired
List-Honorary in the grade of senior airman.

On 7 Feb 95, the Department of  Veterans  Affairs  (DVA)  granted  the
applicant a 10% service connection for fallen arches diagnosed as  pes
planus effective 13 Oct 94.

On 5 Sep 95, a physical examination for fitness for military  duty  by
the Air Force Reserve medical physician concluded that  the  applicant
had severe symptomatic pes planus and indicated by his  recommendation
that the applicant was not qualified for worldwide duty.

On 19 Sep 95, the applicant was certified  as  medically  disqualified
for  worldwide  duty  and  that  the  appropriate  medical   authority
correctly determined that the applicant  was  physically  disqualified
for further service and should be processed for discharge.

On 22 Sep 95, the  applicant  was  notified  by  the  Chief,  Military
Personnel  Division,  AFRES/DPM,  that  he  was   certified   by   the
appropriate Air Force Reserve Surgeon as physically  disqualified  for
worldwide duty  and  therefore  did  not  meet  the  requirements  for
retention in the Air Force Reserve.   DPM  further  indicated  that  a
physical disqualification review board also reviewed applicant’s  case
and concurred with the disqualification  action.   The  applicant  was
also informed that separation action was being initiated to  discharge
him from the Air Force Reserve  under  AFI  36-3209,  paragraph  3.14,
Physical  Disqualification.   The  specific  reason  was  pes  planus,
bilateral, severe, symptomatic, and that he was eligible for  transfer
to  the  Retired  Reserve  (Honorary).   If  the   applicant   elected
retirement, discharge proceedings would be discontinued.  To  exercise
this option, applicant was required to complete and return AF Form 131
(Application for Transfer to the Retired Reserve) within 15 days after
receipt of the 22 Sep 95 memorandum.

On 12 Oct 95, the applicant signed AF Form 131  and  requested  to  be
transferred to the Retired Reserve effective 12 Oct 95.

By Reserve Order EK-0550, dated 27 Oct 95, the applicant was  relieved
from his current assignment, assigned to the Retired Reserve  Section,
and placed on the USAF Reserve Retired List effective  12 Oct  95  for
reason of physical disqualification for active duty, not as  a  result
of misconduct, and not eligible  for  retired  pay  at  age  60  under
Section 1331, Title 10, USC.  He was credited with 7 years, 3  months,
and 12 days of active service.

On 31 Dec 96, the  DVA  increased  the  applicant’s  service-connected
disability from 10% to 30%, effective 13 Oct  94,  for  bilateral  pes
planus.

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AIR FORCE EVALUATION:

The Chief, Medical Consultant, SAF/PC, reviewed this  application  and
indicated  that,  review  of  applicant’s  medical   records   reveals
sufficient evidence to support favorable consideration of his request.
 The records indicate he started  processing  for  reassignment  under
Palace Chase in Jun 94.  In Aug 94, he was  seen  for  worsening  foot
pain over the previous eight months and was found to have  severe  pes
planus.  According  to  AFI  48-123,  Atch  2,  paragraph  2.13,  this
condition is disqualifying for continued military service.   When  the
defect became symptomatic in early 1994 and the evaluation in  Aug  94
was performed, applicant should  have  been  presented  to  a  Medical
Evaluation Board (MEB) for disability processing and referral  to  the
Physical Evaluation  Board  (PEB)  with  placement  on  the  Temporary
Disability Retired List (TDRL).  The applicant was not  aware  that  a
Palace Chase assignment would require review of  his  medical  records
and when  the  foot  problem  was  found,  he  was  disqualified  from
continued duty using the very  same  reference  to  AFI  48-123  noted
above.  The real injustice was that he  was  no  longer  eligible  for
consideration under the disability evaluation  system  as  he  was  no
longer on active duty.

SAF/PC  further  states  that  several  errors  are  apparent  in  the
applicant’s record:

      1.     His  enlistment  was  allowed  to  occur  even  though  a
disqualifying defect was noted on his physical examination.   Once  an
individual is accepted with a  recognized  defect,  the  military,  it
would seem, is ethically bound to provide for any problems that defect
may engender (e.g., disability evaluation, if required).

      2.    When the defect became symptomatic in 1994, it should have
been  recognized  as  disqualifying  and  an  MEB  should  have   been
conducted.

      3.    The system did not inform the applicant that he would have
to meet medical standards to  be  considered  for  a  Reserve  or  ANG
position, an impossibility given the known physical defect.

It is clear from review of applicant’s record that  proper  management
of this 7-year member did not occur and correction  of  records  seems
indicated.  Considering this case in retrospect  and  considering  the
evidence of record, SAF/PC recommends the record be corrected to  show
that the applicant  was  found  unfit  and  medically  separated  with
entitlement to severance pay effective 12 Oct 94 for diagnosis of  pes
planus, bilateral, moderate, with a disability rating  of  10%,  rated
under VASRD code 5276.  It is usual for a deduction to be taken for  a
condition that existed prior to service (EPTS), as in this  case,  but
by the fact that an error was made to allow  applicant  into  the  Air
Force, such deduction should be nullified.

A complete copy of the Air Force evaluation is attached at Exhibit C.

The Chief, Physical Disability Division, AFPC/DPPD, also reviewed this
application and verified that the applicant was never referred  to  or
considered by the Air Force Disability  Evaluation  System  under  the
provisions of AFI 36-3212.  The purpose  of  the  military  disability
system is to maintain a fit and vital force by separating members  who
are unable to perform the duties  of  their  grade,  office,  rank  or
rating.  Members who are separated or retired for reason  of  physical
disability may  be  eligible,  if  otherwise  qualified,  for  certain
disability compensations.  Eligibility for  disability  processing  is
established by an MEB when that board finds that the member may not be
qualified for continued military service.  The decision to conduct  an
MEB is made by the medical treatment facility providing  care  to  the
member.  DPPD does not agree with  SAF/PC’s  advisory.   There  is  no
evidence that the applicant had  a  physical  condition  calling  into
question his fitness for continued military duty at the  time  of  his
release from active duty.  Further, had  an  MEB  been  conducted  and
referred to the Informal Physical Evaluation Board (IPEB) in the 94-95
time frame, the applicant would have  been  found  fit  to  reasonably
perform the duties of  his  office  and  grade  and  would  have  been
returned to duty.   The  appropriateness  of  the  Air  Force  Reserve
discharge decision should be reviewed by  the  appropriate  Office  of
Primary Responsibility (OPR).

DPPD further states that, the reason why an applicant could  be  found
fit by the military and subsequently granted a  disability  rating  by
the Department of Veterans Affairs (DVA)  lies  in  understanding  the
differences between Title 10, United States Code (USC), and Title  38,
USC.  Title 10, USC, Chapter 61, is the federal statute  that  charges
the Service Secretaries with maintaining a fit and vital  force.   For
an individual  to  be  considered  unfit,  there  must  be  a  medical
condition so severe that it prevents performance of work  commensurate
with an individual’s rank and experience.  Once this determination  is
made, namely that an individual is unfit, the degree of disability  is
based on the member’s condition at the time of  permanent  disposition
and not upon future events.  Congress, very wisely, recognized that  a
person can acquire physical conditions which, although not  unfitting,
alter the individual’s lifestyle and future employability.  With  this
in mind, Title 38, USC, which governs the DVA compensation system  was
written to allow awarding  compensation  ratings  for  conditions  not
unfitting for military service.  This is the reason why an  individual
can be considered fit for military duty to the day  of  separation  or
retirement and yet receive a compensation  rating  from  the  DVA  for
service-connected non-unfitting conditions.  DPPD recommends denial of
applicant’s  request.   He  has  not   submitted   any   material   or
documentation to show that he was unfit to perform the duties  of  his
office, grade, rank or rating as the result of a physical disability.

A complete copy of their evaluation is attached at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were  forwarded  to  applicant  on
10 Nov 97 for review and response.  As of this date, no  response  has
been received by this office.

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ADDITIONAL AIR FORCE EVALUATION:

The  Chief,  Executive  Support  Division,  AFRC/DPZ,  reviewed   this
application and indicated  that  per  consultation  with  Headquarters
AFRC/SG, there is no additional data that has been provided to warrant
a change to the applicant’s administrative discharge action.

A  complete  copy  of  the  additional  Air  Force  evaluation,   with
attachment, is attached at Exhibit F.

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APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

A copy of  the  additional  Air  Force  evaluation  was  forwarded  to
applicant on 29 Sep 98 for review and response.  As of this  date,  no
response has been received by this office.

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