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AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

IN THE MATTER OF: 

DOCKET NUMBER:  97-01083 
COUNSEL:  NONE 

HEARING DESIRED:  NO 

APPLICANT REOUESTS THAT: 
1. The Board ensure that responsible authorities governing 
the  processes  within  the  Disability  Evaluation  System 
(DES), are contacted  so they may  review the  problems  and 
correct them. 
2 .   Justice be served, or pass to an authority that can. 
3 .   If the Board finds in his favor, he receive any and all 
options he would have been offered, had the DES functioned 
as written. 

APPLICANT CONTENDS THAT: 

He was unfairly represented, miscounseled, and his rights were 
violated during his evaluation through the Air Force Disability 
System. 
In  addition,  he  received  poor  overall  medical 
treatment. 

The  applicant  states  that  on  6  September  1995,  he  made  a 
decision to separate from the military, and is curious if this 
had  any  bearing  on  the  Medical  Evaluation  Board's  (MEB's) 
decision. 

The applicant's complete submission is attached at Exhibit A. 

STATEMENT OF FACTS: 

On  18  October 1990, the applicant enlisted  in the Regular Air 
Force  for  a  period  of  4 years.  The  applicant  extended  the 
enlistment  for  a  period  of  20  months  on  9  October  1992  to 
qualify for an overseas assignment. 

On  5  March  1996,  the  applicant  indicated  his  desire  for  a 
medical  examination  in  conjunction  with  his  voluntary 
separation. 

AFPC/DPPD states that had the applicant's medical condition 
been  slightly  worse  and  he  had  not  been  found  fit,  to 
receive  a  disability  separation,  he  would  have  had  to 
overcome the presumption of  fitness.  This doctrine holds 
that  a member's continued. performance of  duty until  their 
scheduled  separation  or  retirement  creates  a  presumption 
that  the member  is fit  for continued active service.  As 
outlined  in  DoD  Directive  1332 . 18,  itseparation from  the 
Military  Service  by  Reason  of  Physical  Disabilityii, one 
overcomes  this  presumption  (1)  only  when  the  member, 
because  of  their  disability,  was  physically  unable  to 
perform adequately the duties of their office, grade, rank 
or  rating  or  that  (2) acute, grave  illness or  injury or 
other  deterioration  of  the  member's  physical  condition 
occurs  immediately  prior  to  or  coincident  with  their 
processing  for a non-disability retirement Or  separation. 
Neither of these conditions were present at the time of his 
voluntary separation from active duty in September 1996. 
AFPC/DPPD  states  that  the  reason  why  an  applicant  could 
receive  noticeably  different  disability  ratings  from  the 
Air Force and the VA  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.  For an 
individual to be unfit there must be a medical condition so 
severe  that  it  prevents  performance  of  work  commensurate 
with rank and experience.  Once this determination is made, 
namely  that  the  individual  is  unfit,  the  degree  of 
disability is based upon the members condition at the time 
of  permanent  disposition  and  not  upon  possible  future 
events.  Congress very wisely recognized that a person can 
acquire physical conditions which, although not unfitting, 
alter the individual's life style and future employability. 
with  this  in  mind,  Tide  38,  USC,  which  governs  the 
Department of  Veterans Affairs  (DVA) compensation system, 
Was  Written to allow awarding compensation for conditions 
that are not unfitting for military service.  This is the 
reason why an individual can be found fit for military duty 
and later receive a compensation rating from the DVA for a 
service-connected,  non-unfitting  condition. 
Therefore, 
they  recommend  denial  of  the  applicant's request  for  a 
disability discharge. 

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

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

The applicant  reviewed  the Air  Force evaluation and  states  that 
the  Air  Force  recommendation  is  completely  unacceptable. 
The applicant contends the issues he has raised are nothing 

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. 

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These  being  A F P S .  

less than pure  injustices.  The Air  Force  functions most 
successfully, as  a  team, by  following  a  standard  set  of 
When  they  are  not 
guidelines. 
correctly applied to tasks, it is wrong and eventually will 
create problems.  In his case, he has proven many instances 
of  this, as  well  as, times where  an applicable AFI  went 
totally  ignored.  This  is  not  limited  to  straying  from 
AFIIS,  but  upward  to  the  Department  of  Defense  (DOD) 
Directives and Instructions.  In this, they are violations 
of his rights. 
The  applicant  states  that  the  issues  he  has  brought  to 
attention, have only been  ignored and  left untouched.  Be 
it true, maybe, particular incidents cannot be addressed by 
this  Board;  then  why  is  it  that  they  must  never  be 
acknowledged? 
Or  better  yet,  turned  over  to  the 
appropriate office that can handle them?  For example; 

a.  Being  denied  a  mandatory  separation  physical  - 

solely due to ignorance and laziness. 

b.  Having  a  Senate  Inquiry  response  to  include;  the 
CAT  SCAN  findings were normal -  there was never a CAT  SCAN 
performed. 

c.  Being  verbally  communicated  a  diagnosis  of 
Degenerative Disc Disease, only to find  it was written  as 
Mechanical Lower Back Pain, for the MEB and IPEB. 

d.  Receiving  advise  from  a  Medical  Doctor  that  he 
should  simply  lie  to  future  civilian employers  about  his 
condition  -  this  is  recognized  as  professional  medical 
procedures? 
The  applicant  believes  that  for  a  member  of  the  Armed 
Services to go through an inattentive system, in addition 
to attempting to cope with their illnesses or injuries, i s  
traumatic  in  itself.  Simply  put,  the  DES  system  is  just 
that; a system.  It maintains proficiency not fully through 
written  instruction, but  how  an  individual interprets and 
applies them  to  his/her duties.  In his  case, he  clearly 
showed  through  evidence, blatant  neglect  by  several  key 
personnel.  There is no one office above the PEBLO where a 
military  member  can  seek  assistance, when  i t s   the  PEBLO 
faltering. 
Simply  put,  he  did  not  receive  optimal 
treatment  for  this  condition. 
He  has  been  living 
unnecessarily  in  pain  since,  and  holds  the  entire  DES 
accountable and responsible. 
The  applicant's complete response is attached at Exhibit F. 

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ADDITIONAL AIR FORCE  EVALUATIO N: 
The Chief, Medical Consultant, AFBCMR, reviewed this application 
and  states that  the applicant  is concerned that DoD Directives 
and  Air  Force  Instructions  were  ignored  in  his  disability 
processing, a  contention  that  is  clearly  not  the  case.  They 
note that the applicant met the IPEB on 29 May 1996, rather than 
1997. The IPEB convened while the applicant was on active duty, 
the memorandum from AFPC/DPPD inadvertently stated a wrong date 
for  its  convening. 
All  actions  taken  in  regard  to  his 
evaluation and processing under the Disability Evaluation System 
were  in  accordance  with  directives  and  instructions,  and  no 
error is seen in this.  The memorandum prepared by AFPC/DPPD on 
9 September  1997  fully  covers  the  nature  of  the  applicant's 
processing, and further comment is not required or needed.  The 
BCMR  Medical  Consultant  is  of  the  opinion  that  no  error  or 
irregularity occurred in the applicant's  disability evaluation. 
A decision to return a member to duty is not contestable under 
the governing instruction, even though a later decision by  the 
DVA might award a disability rating not granted by the Air Force 
as explained by AFPC/DPPD. 

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

The  Chief,  USAF  Physical  Disability  Division,  AFPC/DPPD, 
reviewed this application and acknowledge a typographical error 
in  their  original  advisory. 
The  IPEB  had  reviewed  the 
applicant's MEB  and  recommended  his  return  to  duty  on  19  May 
1996,  not  29  May  1997  as  they  indicated  in  their  9  September 
1997 advisory.  They regret the confusion they may have caused; 
however,  all  other  facts  in  the  advisory  are  accurate. 
Therefore, they recommend denial of the applicant's request. 

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

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

Complete copies of  the Air Force evaluations were  forwarded to 
the  applicant  on  27  April  1998  for  review  and  response. 
However, as of this date, no response has been received by this 
off ice. 

THE BOARD CONCLUDES THAT: 

The applicant has exhausted all remedies provided by existing 

1. 
law or regulations. 
2.  The application was timely filed. 

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3 .   Insufficient  relevant  evidence  has  been  presented  to 
demonstrate  the  existence  of  probable  error  or injustice.  We 
took notice of the applicant's complete submission in judging the 
merits  of  the  case;  however,  we  agree  with  the  opinions  and 
recommendations of the Air Force and adopt their rationale as the 
basis  for  our  conclusion that  the  applicant  has  not  been  the 
victim  of an error or injustice.  Therefore, in the absence of 
evidence  to  the  contrary,  we  find  no  compelling  basis  to 
recommend granting the relief sought in this application. 

THE BOARD DETERMINES THAT: 

The  applicant  be  notified  that  the  evidence  presented  did  not 
demonstrate  the  existence  of  probable  material  error  or 
injustice;  that  the  application was  denied  without  a  personal 
appearance; and  that  the  application will  only be  reconsidered 
upon  the  submission of  newly  discovered  relevant  evidence  not 
considered with this application. 

The following members of the Board considered this application in 
Executive Session on 10 June  1998,  under the provisions of AFI 
36 - 2603 : 

Ms. Martha Maust, Panel Chair 

The following documentary evidence was considered: 

Exhibit A. 
Exhibit B. 
Exhibit C. 
Exhibit D. 
Exhibit E. 
Exhibit F. 
Exhibit G .  
Exhibit H. 
Exhibit I. 

DD Form 149,  dated 27  Mar 97,  w/atchs. 
Applicant's Master Personnel Records. 
Letter, BCMR Medical Consultant, dated 1 Jul 97. 
Letter, AFPC/DPPD, dated 9  Sep 97. 
Letter, AFBCMR, dated 6  Oct 97. 
Letter, Applicant, dated 27 Oct 97. 
Letter, BCMR Medical Consultant, dated 3  Feb 98. 
Letter, AFPC/DPPD, dated 1 7  Mar 98. 
Letter, AFBCMR, dated 2 7   Apr 98. 

WkI'HA M A U d  
Panel Chair 

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