AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

IN THE MATTER OF: 

DOCKET NUMBER:  97-01001 
COUNSEL : 
HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT: 
1.  His injuries sustained in 1978 be  found in the Line of Duty 
(LOD) ,  rather  than  not  in  the  LOD  and  caused  by  his  own 
misconduct. 
2 .   He be medically retired with a 70% disability rating. 

APPLICANT CONTENDS THAT: 
The reasons applicant believes he has been the victim of an error 
and/or  an  injustice  are  contained  in  his  complete  submission, 
which is at Exhibit A. 

STATEMENT OF FACTS: 
Relevant facts pertaining to this application, extracted from the 
applicant's military/medical  records  and  the  LOD  investigative 
report, are contained in the letters prepared by the appropriate 
offices  of  the  Air  Force.  Accordingly,  there  is  no  need  to 
recite these facts in this Record of Proceedings. 

AIR FORCE EVALUATION: 
The Staff Judge Advocate', HQ AFPC/$A,  *reviewed this appeal  and 
provides a detailed chronology of applicant's case as well as an 
extensive evaluation. The author recommends applicant's request 
to change his LOD finding of not in the LOD due to own misconduct 
should  be  denied.  Also  recommended  is  that  an  expert  medical 
opinion be  obtained to determine whether the treatment provided 
by Dr. 0--- met the standard of care and, if not, was applicant's 
injury  and  recovery  exacerbated  and  prolonged.  If  so,  such 
aggravated  injury would be  in the LOD and may  possibly entitle 
the applicant to compensation. 

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

The AFBCMR Medical Consultant also evaluated applicant's case and 
provides  his  rationale  for  recommending that  no  change  in  the 
record is warranted. 

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

The  AFBCMR  Medical  Consultant's evaluation  was  returned  to  HQ 
AFPC/JA  for  subsequent  review.  However,  the  Senior  Attorney- 
Advisor  concluded  in his  addendum  that  there is no substantive 
relevant  evidence that  supports the  applicant's request, which 
may be denied based on applicant's untimely application or on the 
merits outlined in the combined advisories. 

A  copy of  the complete addendum to HQ AFPC/JA  evaluation, with 
attachments, is at Exhibit E. 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

A complete copy of the Air Force evaluation was forwarded to the 
applicant and his counsel on 6  April 1997 for review and comment. 
Applicant  provided  a rebuttal which  contains 
his  rationale  for 
finding his injuries in the LOD.  He requests 
that he receive a 
disability rating of 70%. 

A complete copy of applicant's response, with 
Exhibit G. 
In his rebuttal, the applicant asked for certain 
further  study. I' 
The  AFBCMR  Staff  forwarded  a 
applicant, advising  him  how  to  obtain  copies of 
materials. 
A copy of the AFBCMR letter to the applicant is at 

attachments, is at 

documents  I' for 
letter  to  the 
the  requested 

Exhibit H. 

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 .   Sufficient  relevant  evidence  has  been  presented  to 
demonstrate  the  existence  of  probable  error  or  injustice  to 
warrant granting partial relief. We have carefully reviewed the 
available documentation pertinent to this case and conclude the 
vehicular accident  and  the resultant  initial  injuries were  the 
result of the applicant's own misconduct. However, while normally 
we would be reluctant to disagree with the expert opinion of the 
AFBCMR  Medical  Consultant, in  our view  the  evidence  of  record 
suggests the applicant's condition was aggravated by misdiagnosis 

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97-01001 

and untimely treatment. The seriousness of his actual condition 
was  not  properly  assessed  and  treated  until  at  least  a  month 
after the accident. The Chairman of the Department of Orthopedics 
at  the  David  Grant  Medical  Center  at  Travis  AFB  stated  that 
I I .   .  .  if prompt recognition had taken place  (within a few days) , 
reduction of the dislocation might have been possible by traction 
or recumbency.Il According to the Associate Professor of Clinical 
Neurosurgery at the University of California, Los Angeles Medical 
Center, when the applicant first arrived at  the hospital on the 
day of the accident, he did not have the severe spinal deformity 
and mal-alignment he now has. This developed after he was allowed 
to get up, return to work, and move around in an unrestricted way 
without bracing or surgical stabilization of his unstable spinal 
fracture. The  Professor concluded that  if  the  diagnosis of  the 
unstable spinal fracture had been made before the applicant had 
been  allowed  to  bear  weight,  and  he  had  remained  in  good 
alignment, the  extreme deformation of  his  spine would  not  have 
occurred. Further, l l .   .  .  as a result of the severe deformity of 
[his] spine and  the placement  of  the Harrington rods into this 
spinal  deformity  [by  the  military]  without  re-alignment, the 
Harrington rod hooks caused damage to  [his] spinal cord and left 
[him] physically  deformed, neurologically injured, in pain  and 
disabled." We are persuaded the initial inadequate diagnosis and 
treatment of the applicant s injury, together with the residuals 
of the therapy he received, exacerbated and prolonged his injury 
and recovery and, in accordance with AFR 35-67, paragraph 8, are 
in the line of duty by  aggravation. Therefore, we  recommend the 
applicant's records be  corrected to the extent  indicated below. 
His request for a disability rating of 70% was noted; however, we 
believe  the  more  appropriate  rating  would  be  60%, the  rating 
determined by the Formal Physical Evaluation Board on 9 November 
1978. 

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 February 1979, he was 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; 
that the diagnosis in this case was status post auto accident May 
1978, with  fracture dislocation T-5-6, with  compression of  T4, 
with  Harrington  rod  fixation  T2-8  August  1978  with  secondary 
residuals of medical treatment received by the member subsequent 
to the motor vehicle accident, VA diagnostic code 5293, rated at 
60  percent;  that  the  disability  was  permanent;  that  the 
disability  was  not  due  to  intentional  misconduct  or  willful 
neglect; that the disability was incurred in the line of duty in 
national  emergency, and that  the disability was 
time of  war  or 
result  of  armed  conflict, or  was  caused  by  an 
not  the  direct 
of  war  and  incurred  in  line  of  duty  during  a 
instrumentality 

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97-01001 

period of war, and that the disability was not the direct result 
of a combat related injury. 

b.  He  was  not  discharged  on  1  February  1979,  under  the 
provisions of Title 10, USC, Section 1207, but on 2  February 1979 
his name was placed on the Permanent Disability Retired List with 
a  compensable  disability  rating  of  6 0   percent  under  the 
provisions of Title 10, USC, Section 1201. 

The following members of the Board considered this application in 
Executive Session on  17 November  1998,  under  the provisions of 
AFI 3 6 - 2 6 0 3 :  

Mr. Henry C. Saunders, Panel Chair 
Mr. Henry Romo Jr., Member 
Dr. Gerald B. Kauvar, 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 23 Mar 97, w/atchs. 
Applicant's Master Personnel Records. 
Letter, HQ AFPC/JA, dated 4 Nov 97. 
Letter, AFBCMR Medical Consultant, dated 12 Jan 98. 
Letter, HQ AFPC/JA, dated 19 Mar 98, wlatchs. 
Letter, AFBCMR, dated 6  Apr 98. 
Letter, Applicant, dated 6  Jul 98, w/atchs. 
Letter, AFBCMR, dated 12 Ayg 98.  / 

Pa el Chair P 

HEN Y C. SAUNDERS 

4 

97-01001 

DEPARTMENT OF THE AIR FORCE 

WASHINGTON, DC 

Office of the Assistant Secretary 
AFBCMR 97-0 100 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: 

t 

cords of the Department of the Air Force relating t- 
be corrected to show that: 

a.  On 1 February 1979, he was 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; that 
the diagnosis in this case was status post auto accident May 1978, with fracture dislocation T-5- 
6, with compression of T4, with Harrington rod fixation T2-8 August 1978 with secondary 
residuals of medical treatment received by the member subsequent to the motor vehicle accident, 
VA diagnostic code 5293, rated at 60 percent; that the disability was permanent; that the 
disability was not due to intentional misconduct or willfbl neglect; that the disability was 
incurred in the line of duty in time of war or national emergency, and that the disability was not 
the direct result of armed conflict, or was caused by an instrumentality of war and incurred in 
line of duty during a period of war, and that the disability was not the direct result of a combat 
related injury. 

b.  He was not discharged on 1 February 1979, under the provisions of Title 10, USC, 
Section 1207, but on 2 February 1979 his name was placed on the Permanent Disability Retired 
List with a compensable disability rating of 60 percent under the provisions of Title 10, USC, 
Section 120 1. 

Air Force Review Boards Agency 

.