AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCZXDINGS 

IN THE MATTER OF: 

DOCKET NUMBER:  94-03531 
COUNSEL : 
HEARING DESIRED:  NO 

Nov  I  2  1ggg 

APPLICANT REOUESTS THAT: 
His records be corrected to show that all of his disabilities of 
ratable  quality  were  established  with  the  correct  compensable 
rating. 
He receive any pay and allowances due and continuation of pay for 
hospitalization which occurred while awaiting a Formal Physical 
Evaluation Board  (FPEB). 

APPLICANT CONTENDS THAT: 
He  disagrees  with  the  decision  to  discharge  him  from  the  Air 
Force Reserve on 7 January 1994 by reason of back pain associated 
with spinal stenosis with a compensable rating of 20 percent. 
On  8 February 1991,  while  serving on active duty  in support of 
Operation Desert Shield/Storm, he fell in the shower, sustaining 
injuries to his head, back, hip and  right  elbow.  The original 
diagnosis was soft tissue injury paralumbar and olecranon trauma 
with  possible  chip  or  break.  He  remained under  constant  care 
during the period he served on active duty and it was determined 
he was not available for worldwide assignment.  He was released 
from active duty while  in a  medical  hold  status.  Contrary to 
Title 10, United States Code, he was not afforded the opportunity 
to  establish  a  claim  with  the  Department  of  Veterans  Affairs 
(DVA) for known disabling defects prior to his discharge and no 
separation benefit counseling was provided.  He was not given a 
separation  physical  to  establish  his  disabilities  of  ratable 
quality for discharge and military pay and retirement.  Instead, 
he  was  released  from active duty  without  separation counseling 
while  denying  his  rights  as  a  service  member  to  establish  a 
disability claim prior to separation. 
After his separation, he was not informed about continuation pay. 
At  the  time  of  his  release, he  was  told  he  was  going  to  be 
discharged by a Physical Evaluation Board  (PEB) proceeding.  The 
Line  of  Duty  (LOD)  determination  was  not  completed  until 
5 September 1991, as the result of a Congressional Inquiry.  As a 
result  of  the  LOD  investigation,  it  was  determined  that  the 

responsible  Air  Force  officials  did  not  follow  established 
procedures for keeping him on medical hold until he was afforded 
the  opportunity  to  present  his  claim  and  a  PEB  was  held. 
Instead, despite his disability, he was forced to perform drills, 
even though it was known he could not complete satisfactory drill 
requirements.  In  addition  to  the  severe  pain  he  experienced 
because  of  his  back  problems,  he  suffered  from  anxiety, 
depression  and  tinnitus  with  vertigo. 
These  disabilities 
occurred  as  a  result  of  his  accident  and  have  been  denied 
throughout.  In addition, he has been denied compensation for his 
hypertension and pelvic girdle trauma. 

When  a  service member  sustains an injury while  on active duty, 
military authorities should find those disabilities of a ratable 
quality  for retirement purposes which  not  only hinder  civilian 
employment  but,  more  importantly, those  which  affect  military 
performance. 
He  has  provided  expert  medical  opinions  which 
clearly establish each requested disability and substantiates his 
request. 

In support of his request, the applicant provided reports by his 
private  physicians, and, copies of correspondence and  documents 
associated with his service and the events cited in his appeal. 
These documents are appended at Exhibit A. 

STATEMENT OF FACTS: 
The applicant began his military career on 23 March 1976, when he 
was  appointed  a  first  lieutenant,  Biomedical  Sciences  Corps 
(BSC), Reserve of the Air Force, and was voluntarily ordered to 
extended active duty as a Pharmacist on 11 October 1976.  He was 
honorably  released  from extended active duty on 1 May  1980  and 
transferred to the Air Force Reserve, under the provisions of AFR 
36-12  (voluntary-release  expiration  term  of  service) . 
He 
continued  to  participate  as  an  active  Reserve  member  and  was 
progressively promoted to the grade of major, Reserve of the Air 
Force, effective and with a date of rank of 26 April 1985. 
dated 29 January 1991, the applicant 
By Special Order 
was  involuntarily  ordered  to  extended  active  duty 
( E m )  by 
direction  of  the  President  in  support  of  Operation  Desert 
Shield/Storm.  He was relieved from his  Reserve assignment as an 
.. - --- 
le 
at Travis AFB, the applicant jumped out of a scaldins hot.shower 
.  He 
and slipped and fell-hi 
received  treatment  at 
from 
ed to 
8 February 1991 to 13 M 
be discharged. 

and  ass 
as a clinical pharmacist  at 
ate of 3  February 1991.  On 8 February 1991, whi 

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I _ _ -  1_ 

-

-

 

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2 

94- 03531 

L5-Sl”. 

On 5 April 1991, the applicant was released from active duty and 
transferred to the Air Force Reserve, under the provisions of HQ 
MAC/DPB MSG 
(ANGUS/USAFR member  released due  to 
demobilizati 
edited with  2  months  and  4 days of 
active duty service this period, 4 years, 3 months and 10 days of 
total prior active service, and 10 years, 6 months and 29 days of 
total  prior  inactive  service  at  the  time  of  his  release  from 
active duty. 
An AF  Form  422,  Physical  Profile Serial  Report, dated  15 July 
1991 ,  indicated  that  the  applicant’s  profile  was  temporarily 
changed to 3P  (Significant defect or defects and or disease under 
good  control,  and  not  requiring  regular  and  close  medical 
support.  Capable of  all  basic  work  commensurate with rank and 
position). 
As a result of his 8 February 1991 injury (contusion lumbar spine 
with  left  sciatic  radiculopathy),  a  Line  of  Duty  (LOD) 
determination was conducted and, on 5 September 1991, the finding 
was that the injury was incurred in the line of duty. 
An AF  Form 422, dated  7 August  1992,  reflected the applicant‘s 
defects/restrictions  as  ”lumbar  disc  protrusions  L2-3,  L 3 - 4 ,  
He  was  assigned  a  profile  of  L4  (Lower 
L 4 - 5 ,  
extremities;  Medically  unacceptable  for  worldwide  duty  or 
qualification questionable, including remote and  isolated duty. 
Strength, range of movement, and efficiency of feet, legs, pelvic 
girdle,  lower  back  and  lumbar vertebrae).  The  applicant  was 
restricted  from Reserve  participation  for pay  or point  gaining 
activities. 
By  letter,  dated  18  September  1992,  The  Chief,  Personnel 
Readiness Division, AF/DPXC, forwarded to the Surgeon General‘s 
office, AF/SGPC,  a  letter  from  the  Director, Health  Services 
Individual Reserve  Programs, HQ ARPC/SG, dated  13  August  1992, 
requesting the applicant‘s case be reviewed by a Medical Board. 
On 5 December 1992,  in response to a Congressional Inquiry, the 
Air  Force  Medical  Operations  Agency,  Office  of  the  Surgeon 
General,  (HQ  AFMOA/SGPC)  recommended  to  the  Joint  and 
Mobilization  Plans  Branch  (AF/DPXC)  that  the  applicant  be 
evaluated by a Medical Evaluation Board  (MEB). 
A  Medical  Evaluation Board  (MEB) convened  on  10 March  1993  at 
The  diagnosis  and 
sis  L4/L5  and  disk 
herniation to the left at L4/L5 and smaller at L5/S1; with  1991 
being the approximate date of origin; incurred while entitled to 
basic  pay;  not  existing  prior  to  service;  and  permanently 
aggravated by service.  The MEB recommended that the applicant‘s 
records be  forwarded to the Physical Evaluation Board  (PEB) for 
further evaluation.  The board’s recommendation was  approved on 
15 March 1993 and on 26 March 1993, the applicant was informed of 
the findings and recommendations of the MEB.  On 28 April  1993, 

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3 

94- 03531 

the Directorate of Health Services Individual Reserve Programs, 
HQ  ARPC/SGS,  concurred  with  the  recommendation  for  further 
evaluation by the PEB. 
An MEB Addendum, dated 23 July 1993, indicated that his worldwide 
qualification was questionable. 

On  15  September  1993,  an  Informal  Physical  Evaluation  Board 
(IPEB) was convened.  The diagnosis of the  IPEB follows:  Back 
pain, associated with spinal stenosis L4-5 and disk herniation to 
the left at L4-5 and smaller at L5-Sl; incurred while entitled to 
receive  basic  pay  in  the  line  of  duty;  ratable  under  VA 
diagnostic code 5299-5293  at 20%.  The IPEB found the applicant 
was  unfit  because  of  physical  disability  and  the  degree  of 
impairment might  be  permanent.  The  IPEB recommended discharge 
with severance pay at  a  compensable rating of  20 percent.  On 
9 November  1993,  the  applicant  indicated he  disagreed with  the 
findings and recommendation of the IPEB and submitted a rebuttal 
through his counsel  (Military Order of the Purple Heart). 

A  Formal  Physical  Evaluation  Board  (FPEB)  was  convened  on 
9 November  1993.  After  hearing  the  applicant's  testimony  and 
reviewing  the evidence, the board  rendered  a  diagnosis of  back 
pain, associated with spinal stenosis L4-5 and disk herniation to 
the left at L4-5  and smaller at L5-Sl.  The FPEB concurred with 
the IPEB's  recommendation of discharge with severance pay with a 
compensable rating of 20 percent. 
On 20 December 1993, the Secretary of the Air Force directed the 
applicant  be  discharged  with  severance  pay  and  a  2 0   percent 
On  19  January  1994,  the  applicant  was 
disability  rating. 
relieved from his assignment with the 9019 Air Reserve Squadron, 
Lowry AFB, CO, and discharged by reason of physical disability, 
with  entitlement  to  severance pay  at  a  20  percent  compensable 
rating. 
Applicant's  ANG/USAFR  Point  Credit  Summary,  reveals  that  f o r  
Retirement Year Ending  (RYE) 22 March 1993, he was credited with 
43  points  and  for  the  period  ending  19  January  1994,  he  was 
credited with 18 points.  At the time of his separation, he had 
accrued 16 years of  satisfactory Federal service. 
The applicant was  rated  at  20%  by  the  Department of  Veteran's 
Affairs on 23  September 1991  for residuals, low back injury.  A 
DVA  rating  on  25  March  1992  indicates  that  the  applicant  was 
evaluated  for  low  back  injury  and  service  connection  for 
hypertension.  The DVA amended their disability compensation as 
follows:  5293, discogenic disease, residuals low back injury, at 
40%  and  7101,  hypertension at  lo%,  with a combined compensable 
rating  of  50%. 
On  22  September  1993,  the  DVA  notified  the 
applicant that his discogenic disease was confirmed and continued 
at  a  40  percent  disability  rating. 
On  18  June  1994,  the 
applicant  requested  the  DVA  conduct  an  evaluation  of  a 

= 

psychological  condition  (depression with psychotic  features) he 
alleged he incurred while on active duty with the USAF Reserve. 

AIR FORCE EVALUATION: 
The BCMR  Consultant, HQ AFMPC/DPMMMR, reviewed this application 
and recommended denial.  DPMMMR provided a summary of the facts 
contained in the record and  indicated that there is no evidence 
of error or irregularity in the processing of this case.  DPMMMR 
is  of  the  opinion  that  the  applicant’s  case  was  properly 
evaluated, appropriately rated, and  received  full consideration 
under the provisions of AFR 35-4.  DPMMMR stated that action and 
disposition in this case were proper and reflect compliance with 
Air Force directives which implement the law  (Exhibit C). 

The  Chief, USAF  Physical  Disability  Division, HQ  AFMPC/DPMAD, 
also  reviewed  this  application  and  recommended denial.  D P W  
agreed with the comments of the BCMR Consultant.  DPMAD indicated 
that  the  medical  consultant  has  correctly  stated  the  facts  in 
this  case  and  that  the  applicant  was  given  full  and  fair 
consideration and awarded a disability rating consistent with the 
provisions  of  the  Veteran’s Administration  Schedule  for Rating 
Disabilities. 
The  applicant  exercised  his  right  of  appeal 
through all levels of review and received a formal hearing of his 
case.  At  that  time, he  was  represented by  legal  counsel, and 
given  the  opportunity to present  any  additional  documentation. 
The applicant nonconcurred with  the formal hearing  findings and 
submitted  a written  rebuttal  to  the  next  appeal  level.  DPMAD 
could  not  find  any  evidence  on  record  or  submitted  by  the 
applicant  that  indicated  the  boards  erred  in  their  rating 
decisions.  This evaluation is appended at Exhibit D. 

APPLICANT’S REVIEW OF AIR FORCE EVALUATION: 
Counsel  reviewed  the  advisory  opinions  and  indicated  that  the 
applicant‘s own  service  has  already  admitted  to  an  erroneous 
separation.  The applicant‘s command separated him without proper 
authority.  He has not been provided any form of continuation pay 
while  hospitalized  or  unemployed  due  to  his  service-connected 
disabilities  while  waiting  two  years  and  six  months  for  a 
Physical  Evaluation  Board  (PEB)  to  convene. 
Prior  to  the 
erroneous  separation on  5  April  1991, the  applicant’s sciatic 
radiculopathy had  already been  noted.  Service  cannot  disclaim 
disabilities  which  significantly  contribute  to  the  applicant’s 
overall disability picture.  The applicant was hospitalized twice 
for major depression while waiting  for the PEB to be held.  The 
applicant  contends  his  injury  and  mobilization  aggravated  and 
significantly contributed to the severity of his condition.  The 
Air  Force  Discharge  Review  Board  claimed  the  applicant  was 
working 40 hours per week in his chosen profession.  However, the 

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94- 03531 

I 

applicant  scheduled  a  40  hour  week  but  it  became  very  clear 
during  the  FPEB  testimony  that  the  applicant  was  actually 
incapable of performing a full 40 hour week.  The applicant does 
not  desire  to  pyramid  disabilities  -  he  desires  to  establish 
disabilities of  ratable quality which would  result  in the same 
cause for a medical discharge.  The applicant and counsel request 
the  Board  consider  all  disabilities  since  they  significantly 
contribute  to  the  whole  person  concept  and  his  ability  to 
maintain employment  (Exhibit H) . 

ADDITIONAL AIR FORCE EVALUATION: 
Pursuant to the Board's  request, the Chief, Physical Disability 
Division, HQ  AFPC/DPPD,  again  reviewed  the  application, which 
plicant's  12 November 1993 letter to Congresswoman 
The  specific questions the  applicant raised  in 
the  aforementioned  letter concerning  the  disability  issue have 
been addressed by DPPD in their evaluation at Exhibit D. 

DPPD  stated  that  the  applicant  was  evaluated,  boarded,  found 
unfit and rated based upon the "back pain, associated with spinal 
stenosis  and  disk  herniation".  Thus, only  the  back  pain  was 
rated, since  that  was  the  condition which  rendered  him  unfit. 
The  mere  existence  of  a  medical  condition  does  not  mean  that 
condition is unfitting.  To be unfitting, the condition must be 
such  that  it  renders the person  unable  to perform duties  that 
would normally be expected of their rank and grade.  The record 
clearly shows that the other conditions were not unfitting at the 
time he was evaluated  (hip pain, hearing loss, tinnitus  (ringing 
in the ears) ,  hypertension  (high blood pressure) ,  hyperlipidemia 
(high cholesterol readings) , anxiety and depression).  Since the 
medical  personnel  who  initiated  the  MEB  did  not  deem  these  of 
sufficient severity to potentially render the member unfit, they 
were  not  listed  on  the  MEB.  Additionally,  when  the  various 
boards  (Informal and  Formal  Physical Evaluation Boards  and  the 
Air  Force  Personnel  Board)  reviewed  the  case  and  the  member's 
appeal, they  did  not  find  these  conditions to be  unfitting  at 
that time.  Simply because these conditions were rated by the DVA 
as  medical  conditions  connected  to  the  applicant's  military 
service does not mean these are unfitting conditions. 
DPPD  stated  that  the  reason  why  an  applicant  could  receive  = 
noticeably different  disability  ratings from the Air  Force  and 
the DVA lies in understanding the differences between  title  10, 
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.  Once the individual is found 
unfit,  the  degree  of  disability  is  based  upon  the  member's 
condition  at  the  time  of  permanent  disposition  and  not  upon 
possible  future  events. 
Title  38,  USC,  governs  the  DVA 
compensation system, was written to allow awarding compensation 
for conditions that are not unfitting for military service.  DPPD 

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94- 03531 

stands by their previous advisory opinion that the applicant was 
appropriately  processed  and  rated  by  the  physical  disability 
system. 
A complete copy of this evaluation is appended at Exhibit D-1. 

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: 

Counsel  reviewed  the  additional  advisory  from  DPPD  and  stated 
that the applicant was hospitalized for anxiety/depression while 
awaiting the Formal PEB to convene.  The Air Force violated its 
own policy  since  the  applicant's  unit  of assignment  failed  to 
notify the MEB  of applicant's  change in status.  Counsel argues 
that this may have been material in the outcome of the decision 
and a medical evaluation for a mental condition by the Air Force 
may  have  been  appropriate  to  determine  the  severity  of  the 
disability.  The  Air  Force  simply  denied  the  disability  even 
existed  although  the  evidence  provided  by  applicant  proved 
otherwise.  The Review Board attempts to intertwine disabilities 
basing  their  rationale  in  rating  separate  and  distinct 
disabilities as pyramiding.  Counsel argues a back condition and 
a mental condition have no direct relationship and must be rated 
separately.  Both  conditions would  find  the  member  unfit  for 
further service.  The injury in service to applicant's back only 
triggered an underlying  condition to manifest itself to  such a 
severity  discharge  and  retirement  was  warranted  for  both 
conditions.  The Air  Force again opines in their 24 April  1996 
memorandum to the Board that "Then, only the back pain was rated, 
since that was the condition that rendered him unfit.',  Counsel 
contends that  the  condition of pain  in and  of  itself  is not  a 
ratable entity under the law.  Applicant's back condition, at the 
time of separation, was 'Lumbar  Trauma to disc L5-S1, L4-5, L3-4, 
L2-3, LI-2, with sciatic radiculopathy, nerve system involvement 
and pain associated with an injury of such magnitude."  Relevant 
to  this  issue is also  Pelvic Girdle Trauma  sustained, which  is 
rated  separate  and  distinct;  however,  this  condition 
significantly aggravates and contributes to the overall severity 
of the disability to the back.  This does not pyramid the rating 
system;  rather,  it  effectively  and  efficiently  evaluates  the 
unfitting  conditions or  defects  and  those  which  contribute  to 
unfitness, which are considered in arriving at a rated degree of 
incapacity  warranting  retirement  or  separation  for  disability. 
Title  10,  USC,  Chapter  61,  charges  Service  Secretaries  with 
maintaining  a  fit  and  vital  force.  For  an  individual  to  be 
unfit, there may be a combination of disabilities which renders a 
person unfit and not merely a single disabling defect.  Counsel 
does not choose to analyze the differences between Title 10, USC, 
and Title 38,  USC.  Instead, he carefully points out the strong 
relationship between the two, which was the intent in origin.  In 
this case, the degree of  disability requested is based upon the 
member's  condition at  the time of permanent  disposition.  Where 
it is optioned or otherwise directed to discharge a member from a 

7 

94- 03531 

military service, a11 disabilities of  ratable quality should be 
given adequate consideration in the disability percentage as it 
relates to a member‘s fitness for duty.  Counsel concluded that, 
the  applicant  was  not  appropriately  processed  or  rated  in 
accordance with  service requirements to  meet  its obligation in 
rating  a11  disabilities  which  find  him  unfit  for  service  and 
those which significantly contribute to unfitness. 

Counsel‘s response is appended at Exhibit H-1. 

ADDITIONAL AIR FORCE EVALUATION: 
Pursuant  to  the  Board’s request, the AFBCMR  Medical  Consultant 
and  Staff  Judge Advocate  (HQ ARPC/JA), provided  a  response  to 
specific questions raised. 

In  response  to  the  issue  of  medical  hold,  the  AFBCMR  Medical 
Consultant stated that a week after the applicant was called to 
active duty  (February 1991), he  fell  in the  shower, sustaining 
injuries  and  was  treated  in  the  Family  Practice  Clinic  with 
medications and physical therapy.  Over the next  two months, he 
was treated as noted, and in April was demobilized and returned 
to his  reserve unit.  He was never put  on profile  in those two 
months and notes indicate that he was having radicular pain, an 
indication of more than just a contusion of the back muscles, but 
this was  never  investigated until  after his  return to his  home 
unit in New Jersey.  He was not put on medical hold or a profile 
during his two months of active duty. 
The Medical Consultant stated that while applicant was not put on 
medical hold, the handling of his injury was not proper.  When he 
continued  to  have  significant  symptoms  with  pain  suggesting 
spinal  disk  disease,  he  should  have  had  a  radiologic 
investigation  which  would  have  shown  what  was  later  found: 
multilevel disk disease with spinal canal encroachment by bulging 
disks.  He  should  have  been  Dut  on  medical  profile,  and  his 
seDaration should have been held until resolution of svmDtoms or 
referral to a Medical Evaluation Board  (MEB).  Applicant was not 
placed  on  profile  until  July  1991  when  he  was  given  a  3 -  
T (emporary) which required resolution within a year or permanent 
profiling.  In September 1992, after extensive evaluations were 
undertaken,  he  was  placed  in  a  4-P(ermanent)  status  which 
initiated the disability evaluation system (DES) referral and his 
subsequent  separation  with  severance  pay  at  20  percent 
disability. 
The Medical Consultant stated that “The proper thing to have done 
was  as  noted  above.  When  his  symptoms  did  not  resolve, his 
medical  hold  should  have  resulted  in  an  MEB,  while  still  on 
active  duty. 
It  is  most  likely  that  the  DES  would  have 
recommended  a period  on  the  Temporary  Disability  Retired  List 
under VASRD Code 5299- 5293,  Intervertebral disk syndrome, severe, 

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94-03531 

40 percent  disability  rated.  After  an  appropriate  period  of 
observation  (18 months would  have been  sufficient  to  establish 
stability of this problem), applicant would have been reevaluated 
and  then  most  likely  separated  with  severance  pay  at  20% 
disability with moderate, recurring attacks of radicular pain." 

With  regard  to  a  separation  physical  examination  (PE),  the 
Medical Consultant stated that a separation PE was not  required 
of  all  Reserve  members  who  were  called  to  active  duty  during 
Desert Shield/Storm.  Had the correct handling been initiated, a 
PE would have been accomplished in preparation for the MEB  that 
would have convened. 

As  to  whether  or  not  applicant  received  proper  counseling  or 
denial  of  opportunity  to  establish  a  claim  for  his  medical 
conditions,  the  Medical  Consultant  stated  that  this  issue  is 
somewhat  moot. 
The  applicant  did  file  a  claim  with  the 
Department of Veterans' Affairs  (DVA).  He had previously filed a 
claim with  the DVA in January  1981,  after his  initial  tour  on 
active duty from 11 October 1976 to 1 May 1980, so he was aware 
of the availability of such recourse. 

With  regard  to  whether  or  not  the  Physical  Evaluation  Boards 
(PEBs) were aware of  changes in applicant's  status, the Medical 
Consultant stated that the applicant was evaluated by the Formal 
PEB  on 9 November 1993 where he made a personal appearance.  If 
he did not assure that all information on his status was known by 
the  board,  he  was  remiss  in  not  seeing  to  this. 
By  the 
applicant's  own testimony, he was noted to be working a 40-hour 
week  in  his  primary  occupation  although  with  symptoms  of 
continuing intervertebral disk disease. 

The Medical Consultant stated that the applicant should have been 
medically boarded, found unfit  for duty  and  his  name placed  on 
the Temporary Disability Retired List  (TDRL) in April 1991 at 40% 
disability  (50% base  pay  compensation)  until  October  1992  (18 
months)  when  he  should  have  been  separated  with  severance pay 
with  20%  disability  (after reevaluation  found  his  condition 
stable).  The final determination of 20% compensation is based on 
findings of the FPEB as noted above (see Exhibit E). 

The Staff Judge Advocate, HQ ARPC/JA, stated that  the applicant 
was  entitled  to  continuation of  pay  when  he  was  released  from 
active  duty  due  to  disabling  injuries  incurred  after  being 
mobilized in support of operation Desert Shield/Storm. 

= 

JA stated that applicant's  back  injury interfered with his duty 
performance.  Despite  this, he  was  not  placed  on medical  hold 
This 
pending  resolution  or  stabilization  of  his  condition. 
action  appears  to  have  been  consistent  with  Air  Force  Reserve 
policy  then  in  effect.  HQ  USAF/REP  message  of  7  April  1992, 
announced  the  Chief  of  the  Air  Force  Reserves  had  directed  a 
change in policy  for reservists who were injured in the line of 

9 

94- 03531 

* 

duty while on orders for more than 31 days.  The new policy was 
that such members would not be involuntarily released from those 
orders until final disposition of their case. 

JA stated that during the interval between applicant's injury and 
his  discharge,  he  received  no  disability-related  compensation 
from the Air Force. 
JA  stated  that  according  to  Title  37  USC,  if  a  member  was 
physically disabled in the line of duty while serving on ordered 
active duty, and he was not  fit for military duty, then he was 
entitled to active duty pay and allowances for the period of the 
orders, plus authorized travel time.  If the disability continued 
beyond that interval, or if it recurred, the member was entitled 
to  pay  and  allowances  -  less  the  full  amount  of  all  civilian 
income received for the disability period  -  for no more than six 
months.  Under DOD  Pay Manual  (DoDPM) ,  Chapter 7 ,   Section F, a 
member's  entitlement to these benefits ended with his separation 
for physical disability. 

e  assigned  at 
applicant  shou 
a1  sufficient to  ascertain 
whether his  injury would  stabilize, and complete his disability 

er  received  a 

*  processimj if it wouldn't. 

JA stated that the applicant was physically disabled in the line 
of duty.  He was thereby entitled to compensation to alleviate 
the financial hardship this imposed on him in both his civilian 
and military pursuits.  The Air Force denied him what he was due 
under  federal law.  Redress is therefore  in order.  A  complete 
copy of this evaluation is appended at Exhibit F. 

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: 
The applicant reviewed the additional advisories from the AFBCMR 
Medical Consultant and HQ ARPC/JA and stated that he concurs with 
the  findings regarding correction of  his  military  records  (see 
Exhibit H - 2 ) .  

THE BOARD CONCLUDES THAT: 

The applicant has exhausted all remedies provided by existing 

1. 
law or regulations. 
2.  The application was timely filed. 
3.  Sufficient  relevant  evidence  has  been  presented  to 
demonstrate the  existence of  probable  error  or  injustice.  In 
this respect, we are in agreement with the opinion of the AFBCMR 

10 

9 4 - 0 3 5 3 1  

. 

c 

Medical  Consultant  (Tab E)  that, when  the  applicant's  medical 
condition did not resolve, he should have been put on a medical 
profile, his separation held until resolution of the symptoms or 
referral  to  a  Medical  Evaluation  Board  (MEB).  We  noted  the 
information in applicant's  record reveals that subsequent to the 
recommended period of temporary retirement and after the proposed 
discharge date, the applicant was  an active participant  in the 
Air Force Reserve, earning a satisfactory year of Federal service 
for the Retirement Year Ending  (RYE) 22 March 1992.  In addition, 
for RYE 22 March  1993,  he was credited with 43 points, and  for 
the  period  ending  19  January  1994,  he  was  credited  with  18 
points.  The recommendation by the AFBCMR Medical Consultant was 
noted.  However, in view of the applicant's Reserve participation 
subsequent to the proposed retirement and separation date, which 
resulted  in his being  credited with  a total  of  16  satisfactory 
years of Federal  service, we  believe  the  recommendation by  the 
AFBCMR  Medical  Consultant's  could potentially be  the subject of 
further  in j us t ice. 
For  this  reason,  and  in  view  of  the 
uncertainty  with  which  any  actions  taken  could  possibly  be 
affected by  required offsets, we  believe  a  more  just  solution 
would  be  to  correct  the  records  to  show  the  applicant  was 
temporarily retired because of physical disability on 19 January 
1994  (his original discharge date), he be retained in that status 
for 18 months, and on 19 July 1995, final disposition was made in 
his case  (separation with a 20 percent disability rating).  As a 
consequence of the above actions, based on the implementation of 
legislation  in October  1994  affecting  Reserve  member's  in  the 
same  circumstances  as  the  applicant,  changing  his  date  of 
separation would entitle him to request a transfer to the Retired 
Reserve  Section awaiting pay  at  age  60 in accordance with  the 
Early  Reserve  Retirement  Program. 
We  are  aware  that  the 
aforementioned  recommendation  would  render  the  applicant 
ineligible for severance pay.  However, due to the circumstances 
of  this case, we believe  any possible  injustice resulting from 
the Air  Force's  failure to place  the  applicant  in continuation 
pay  status would be more than rectified.  We  therefore conclude 
that  the  applicant's  record  should  be  corrected  as  indicated 
below. 
4.  Other than the aforementioned medical  condition, we  are not 
inclined  to  recommend  approval  of  the  applicant's  request 
concerning his other medical conditions not being rated.  In this 
respect, we  agree  with  the  opinion  and  recommendation of  the 
respective Air  Force  office, HQ  AFPC/DPPD,  (Tab D>  and  adopt 
their  rationale  as  the  basis  for  our  conclusion  that  the 
applicant has not been the victim of an error or injustice.  The 
evidence before  us does not  substantiate that  any of  the cited 
conditions  (hip  pain,  hearing  loss,  tinnitus,  hypertension, 
hyperlipidemia,  anxiety  and  depression) ,  standing  alone,  were 
unfitting at the time the applicant was evaluated.  Therefore, in 
the absence of evidence to  the contrary, we  find no  compelling 
basis to recommend approval of this request. 

= 

11 

94- 03531 

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  1 8   January  1994,  competent  authority  determined  his 
unfitting condition, intervertebral disk syndrome, severe, VASRD 
Code 5299- 5293,  was rated at 40%. 

b.  He  was  not  discharged  on  1 9   January  1994, 

with 
entitlement to disability severance pay, but on that date, he was 
released  from  active  duty  and  his  name  was  placed  on  the 
Temporary Disability Retired List  (TDRL). 

c.  On 1 8   July 1995,  competent authority determined that the 
rating of his unfitting condition was 20%,  rather than 40%;  and, 
on that date, his name was removed from the TDRL and, effective 
1 9   July 1 9 9 5 ,   he was discharged from the Air Force Reserve, with 
severance pay, or, provided  he  submits  such a  request, he  was 
transferred to the Retired Reserve Section awaiting pay. 

The following members of the Board considered this application in 
Executive Session on  9  April  1998,  under the provisions of AFI 
3 6 - 2 6 0 3 :  

Mr. Henry C. Saunders, Panel Chair 
Mr. Patrick R. Wheeler, Member 
Mr. Gary Appleton, Member 

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

Exhibit A. 
Exhibit B. 
Exhibit C. 
Exhibit D. 

Exhibit E. 
Exhibit F. 
Exhibit G. 

Exhibit H. 

DD Form 149,  dated 1 Jun 94,  w/atchs. 
Applicant's Master Personnel Records. 
Letter, HQ AFMPC/DPMMMR, dated 1 5   Dec 9 4 .  
Letters, HQ AFMPC/DPMAD, dated 13 Jan 95,  and 
HQ AFPC/DPPD, dated 24  Apr 9 6 .  
Letter, AFBCMR Medical Consultant, dated 
1 5  Aug 97. 
Letter, HQ ARPC/JA, dated 12 Sep 97,  w/atchs. 
Letters, SAF/MIBR, dated 30 Jan 95,  3 Jun 96  and 
3 Dec 97. 
Letters from counsel, dated 2  Feb 95,  w/atchs, 
rom applicant, dated 
and 5  Jun 96, 
5  Jan 98. 

// 

NRY C. SAUNDERS 
anel Chair 

12 

94- 03531 

DEPARTMENT OF THE AIR FORCE 

WASHINGTON, DC 

Office of the.Assistant Secretary 

AFBCMR 94-0353 1 

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: 

itary records of the Department of the Air Force relating t 
corrected to show that: 

a.  On 18 January 1994, competent authority determined his unfitting condition, 

intervertebral disk syndrome, severe, VASRD Code 5299-5293, was rated at 40%. 

b.  He was not discharged on 19 January 1994, with entitlement to disability severance 

pay, but on that date, he was released from active duty and his name was placed on the 
Temporary Disability Retired List (TDRL). 

c.  On 18 July 1995, competent authority determined that the rating of his unfitting 

condition was 20%, rather than 40%;  and, on that date, his name was removed from the TDRL 
and, effective 19 July 1995, he was discharged from the Air Force Reserve, with severance pay, 
or, provided he submits such a request, he was transferred to the Retired Reserve Section 
awaiting pay. 

c/  Director 

Air Force Review