. 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

IN THE MATTER OF: 

DECO81998  - 

DOCKET NUMBER:  97-01550 
COUNSEL : 
HEARING DESIRED:  Yes 

APPLICANT REOUESTS THAT: 
1.  His severance pay be  rescinded and his record be  corrected 
to  show he made  a selection to be  transferred  to the  Inactive 
Status List, Reserve Section. 
2.  The United States Air Force  (USAF) be ordered to submit an 
f  duty  (LOD) 
explanation  as  to  why  it  denied 
report  entered -by  th 
Air  National 
for  the  emotional  condition  suffered  while  on 

active 

His disability rating be adjusted to one of  not less than 30 
3 .  
percent or he be allowed to have his reply/rebuttal considered by 
a PEB. 

APPLICANT CONTENDS THAT: 
He was discharged with a lump sum payment against his wishes and 
while he was medically unfit to make  a decision.  The Veterans 
Affairs  (VA) awarded him  a 30% disability rating f o r   his tibia 
condition,  and  an  additional  10%  for  his  left  ankle 
osteoarthritis.  The VA found that the depression he suffers from 
stems from the service-connected accident and surgery he suffered 
while on active duty and awarded him an additional 10% disability 
for  that  specific  reason. 
The  USAF  determination  of  20% 
disability is at odds with the more recent VA determinations in 
that the VA is the combined disability determination of 40%.  The 
PRANG  determined  that  his  emotional  condition  was  in  LOD, 
although  the  USAF  later  disapproved  said  finding  without 
explanation of any sort. Ironically, the VA grants him a service- 
related  10%  disability  for  his  emotional  condition  effective 
27 April  1997,  but  four  months  later  the  USAF  denies  a  LOD 
determination for the same condition on 3 September 1997. 

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97- 01550 

In  support  of  his  request,  he  submits  the  VA  Compensation 
Decision, DD Form 214, LOD report and attachments, Memorandum of 
Election, and medical documentation. 
Applicant’s complete submission is attached at Exhibit A. 

G

STATEMENT OF FACTS: 
Applicant enlisted in the PRANG on 19 May 1974. 
On 17 December 1994,  the applicant, while on active duty under 
Drug  Interdiction Special Order: AQ-11, dated  28  October  1994, 
and participating in a m
 Sponsored athletic event running a 
ten  kilometer  race,  applicant  fractured  the  left  tibia  and 
fibula. 
On 24 March 1995, an Informal LOD determination recommended that 
the injury was LOD. 
On  6  July  1995,  the  approving  official  approved  the  LOD 
determination. 
On 8  October 1996,  a Medical Evaluation Board  (MEB) convened at 
wilford  Hall  Medical  Center  and  recommended  referral  to  an 
Informal Physical Evaluation Board  (IPEB) . 
On  18 November  1996,  an  IPEB convened  at  Randolph AFB, TX  and 
found  the  applicant  unfit  because  of  physical  disability  and 
disability  was  incurred  in  LOD. 
Diagnosis  was  status  post 
December  1994  left  tibio-fibular  fracture  with  resultant  non- 
union  requiring  revision ORIF  with  bone  graft  on  October  1995 
with  residual  disuse  osteopenia  with  severe  osteoarthrosis  of 
ankle  and  limitation of  motion.  Compensable  percentage of  2 0  
percent and recommendation of discharge with severance pay. 

On 3 December 1996, the applicant did not agree with the findings 
and  recommendation of  the  PEB  informal  hearing  and  demanded  a 
formal hearing. 
On  19  December 1996  a Formal  Physical Evaluation Board  (FPEB) 
convened  at -AFB, 
and  found  the  applicant  unfit 
because  of  physica  aisability  and  disability was  incurred  in 
LOD.  Diagnosis was status post December 1994 left tibio-fibular 
fracture with  resultant  non-union requiring revision ORIF  with 
bone graft on Oct  95 with residual disuse osteopenia with severe 

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97-01550 

osteoarthrosis of  ankle and  limitation of  motion.  Compensable 
percentage  of  20  percent  and  recommendation of  discharge  with 
severance pay. 
On  19  December  1996,  the  applicant  was  notified  of  the 
recommended  findings  of  the  Formal  PEB.  He  was  informed  to 
submit his reply/rebuttal to be received by 9 January 1997. 
On 3 January 1997, the applicant requested a 30-day extension to 
obtain  prop 
istance  since  he  didn't  have  legal 
assistance i 
On  3  January 1997,  his  extension request was  approved  in part 
with  his  rebuttal to be  received  by  the USAF  Formal PEB/DPPDF 
office not later than 16 January 1997. 
On 22 January 1997, the Secretary of the Air Force directed that 
applicant  be  separated  from  active  service  for  physical 
disability under  the provision  of  10 USC  1203,  with  severance 
Pay 
On  29  January  1997,  the  applicant  was  notified  that  officials 
within the office of  the Secretary of  the Air  Force determined 
that he was physically unfit for continued military service and 
directed he be  discharged  from  the service with entitlement to 
severance  pay . 
However,  since  he  had  over  20  years  of 
satisfactory service, he  could  elect  to  be  transferred to  the 
Inactive  Status  List,  Reserve  Section,  in  lieu  of  being 
discharged with severance pay.  His election had a suspense date 
of 28 February 1997.  Applicant failed to respond to the request. 
From  5 January  1997  until  21  February  1997  the  applicant  was 
treated  and  hospitalized  at  the  VA  Medical  Center  for  severe 
depression disorder. 
On 27 February 1997, HQ  PRANG notified HQ AFPC/DPPDS that a new 
LOD  would  be  performed  for  a  condition  recently  developed. 
Applicant  would  remain in active  service until  adjudication of 
LOD . 
On 11 March 1997, HQ PRANG was notified by message that since the 
SAF memorandum had been signed, any request for a special review 
was  inappropriate or unauthorized and only in the most  unusual 
circumstances would a change in medical documentation justify any 
medical hold action and a new MEB convened. 

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97- 01550 

Applicant was discharged on 25 April 1997, in the grade of staff 
sergeant with a honorable discharge, under the provisions of AFI 
36-3212  (Disability, Severance Pay).  He had 22 years, 11 months, 
and  11 days of  satisfactory service and  received $26,790.40  in 
severance pay. 
On 30 April 1997, an informal LOD determination recommended LOD. 
On 3 September 1997, the approving authority disapproved the LOD. 
On 5 Novemer 1997, the VA evaluated applicant's disability as: 
Residuals  left  tibia  and  fibula  fractures  at  30  percent, 
Osteoarthritis of left ankle at 10 percent, and major depression 
at 10 percent, with a combined rating of 40 percent. 
On 5 March 1998, the VA reevaluated applicant I s   disabilities as: 
Residuals  left  tibia  and  fibula  fractures  is  continued  at  30 
percent, Osteoarthritis of left ankle is continued at 10 percent, 
and  major  depression  is  continued  at  10  percent,  and  service 
connection for lumbar Myositis, left L5-Sl radiculopathy, central 
Herniated  Nucleous  Pulposus ,  degenerative  joint  disease  is 
granted at 20 percent effective 20 November 1997, with a combined 
evaluation of 60 percent. 

AIR FORCE EVALUATION: 
The Chief, Physical Disability Division, AFPC/DPPD, also reviewed 
this application and states that on 19  December 1996, with  the 
assistance  of  legal  counsel, the  applicant  presented  his  case 
before  the  FPEB  at  Lackland  AFB.  The  Board  agreed  with  the 
findings  of  the  IPEB,  found  him  unfit  for  continued  military 
service,  and  recommended  his  disability  discharge  with  a  20 
percent disability rating.  Again, the member did not concur with 
the  findings and  advised  the  Board  that  he  wanted  to  submit  a 
written  rebuttal  to  the  Air  Force  Personnel  Council. 
His 
rebuttal was suspensed for 9 January 1997.  He was afforded three 
weeks  to  provide  his  rebuttal  (an additional  week  beyond  the 
normal  suspense).  On  3  January  1997,  the  member  requested an 
additional  30  days  extension stating  he  needed  the  extra  time 
because he did not have any legal assistance in Puerto Rico.  The 
FPEB approved the request in part, extending the suspense date to 
16 January 1997.  The memorandum  reemphasized the need  for the 
member  to  contact  his  military  counsel  at  the  FPEB,  if 
appropriate, for assistance in preparation of  his  rebuttal and 
included the counsel's phone and datafax numbers.  Applicant did 
not provide a rebuttal by  the  suspense date and  the disability 
case was forwarded f o r   review and finalization in accordance with 
disability policy.  On 22  January 1997, officials in the Office 
of  the Secretary of  the Air Force approved the  findings of  t h e  

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previous two boards and directed the applicant I  s  discharge with 
severance pay and a 20  percent disability rating.  On 29 January 
1997,  because  the  applicant  was  a member  of  the Reserves with 
over 20 years satisfactory service, he was offered an option to 
be transferred to the Inactive Status List, Reserve Section or be 
The  HQ  AFPC/DPPDS  memorandum 
discharged  with  severance  pay. 
included a suspense date of 28 February 1997 to respond with his 
election.  Again  the member  failed to  respond  to  the request. 
After several unsuccessful attempts to contact the member, which 
included contact through the ANGRC  and  the AGR  unit  in  Puerto 
Rico,  appropriate  action  was  initiated  on  26  March  1997  to 
discharge  member  with  severance  pay  in  accordance  with  the 
Secretarial  deeermination.  Discharge  was  effective  25  April 
1997.  A  thorough review of  the case establishes the applicant 
was  properly  found  unfit  for  military  duty  and  awarded  an 
appropriate  rating  for  his  disability  at  the  time  of  his 
discharge.  Further, he was afforded all rights to which he was 
entitled under disability law and policy.  They recommend denial 
of  applicant's  request.  The  applicant  has  not  submitted  any 
material  or  documentation to  show that  he  was  inappropriately 
found  unfit,  rated,  or  separated  by  reason  of  physical 
disability. 
A complete copy of the evaluation is attached at Exhibit C. 
The Chief, Utilization, ANG/MPPU, reviewed this application and 
states  that  after  a  thorough  review  of  the  case  and  the 
circumstances  surrounding  the  applicant, they  recommend  he  be 
afforded  the  opportunity  to  select  transfer  to  the  Retired 
Reserve List.  New information regarding the mental state of the 
applicant at  the time of selection  ( L e .  ,  severance pay with 20 
percent  disability  or  transfer  to  the  Retired  Reserve  list) 
compels them to recommend relief.  Although the applicant had an 
opportunity to respond to the FPEB, the applicant's mental state, 
inability to contact and hire a Spanish/English legal counselor, 
and  physical  handicap  hindered  the  applicant  to  the  point  of 
indecision.  The  Air  Force  Personnel  Center  (AFPC) will  not 
entertain a rebuttal to the FPEB findings since the case has been 
finalized  by  the  Secretary  of  the  Air  Force. 
Furthermore, 
disability processing  for the  applicant's depression would  not 
have  been  authorized  even  if  the  LOD  in  question  had  been 
received prior to his discharge.  Therefore, due to the physical, 
emotional,  and  mental  state  of  the  applicant  at  the  time  of 
selection,  they  recommend  the  applicant  be  afforded  an 
opportunity  to  select  transfer  to  the  Retired  Reserve  list 
awaiting  retired  pay  at  age  60,  in  lieu  of  discharge  with 
seve ance and 20  percent disability.  The applicant has informed 
G HQS the severance pay check for $26,790.40 has not been 
cashe 
determination by the Board. 
A complete copy of their evaluation is attached at Exhibit D. 

the k and  the  monies  will  be  returned  upon  favorable 

5 

APPLICANT ' S  REVIEW OF AIR FORCE E VALUATIO N: 
The applicant's counsel reviewed the advisory opinions and states 
that he is pleased to find out the ANG had recommended relief to 
the AFBCMR  in regards to applicant's  request that he be allowed 
to select transfer to the Retired Reserve List  (vs. Discharge and 
severance pay).  The applicant has not cashed his severance pay 
check.  Please be  informed that the applicant will deliver said 
check when and as directed; and that he will likewise sign, this 
Board pemiitting, whichever documents are necessary to effect his 
transfer to the Retired Reserve List. 

Counsel further states, in regards to applicant's  other request 
that  he  be  allowed  to  reply/rebut  the  20  percent  disability 
rating  granted  by  the  PEB,  he  insists  that  relief  is  both, 
deserving  and  well-founded.  Not  only  is  the  medical  evidence 
overwhelming but the same arguments which could not be denied by 
LTC  U---  in  her  4  February  1998  advisory  opinion  supports 
applicant's  request.  As to the advisory opinions'  -  unexplained 
-  insistence  that  "disability  processing  for  the  applicant's 
depression  would  not  have  been  authorized even  if  the  LOD  in 
question had  been  received prior  to  the discharge," they state 
the following:  (1) The allegation that disability processing for 
depression would not have been authorized cannot be considered by 
the Board.  Basic due process demands that if an advisory opinion 
is going to convey to the AFBCMR the impression that there is a 
legal impediment for certain requested remedy, the basis in Law 
for the alleged.,. impediment must  be properly cited.  (2) Should 
the Board decide that the applicant be allowed to retire, as the 
advisory opinion now recommends, there  is no  impediment that  a 
disability  rating  be  reviewed  and  updated  in  the  future  as 
( 3 )   The  VA  decision  increases 
circumstances  may  require. 
applicant's  combined  disability without  increasing  his  emotion 
condition  percentage. 
In  other  words,  solid  evidence 
demonstrates that the applicant's  disability should be increased 
by  the  Air  Force  even  if  it  does  not  reconsider  depression- 
related conditions.  It is thus respectfully requested that the 
applicant be allowed to elect transfer to the Retired Reserve and 
that either his disability rating be increased to one of not less 
than  30  percent  or  he  be  allowed  to  have  his  reply/rebuttal 
considered by a PEB. 
Applicant's complete response is attached at Exhibit E. 

ADDITIONAL A IR FORCE EVALUATION: 
The  Chief,  Aerospace  Medicine,  Office  of  the  Air  Surgeon, 
ANG/SGP, reviewed this application and states that in response to 
counsel's  inquiry,  the  applicant's  chronic  undifferentiated 
schizophrenia with depressive symptoms was a condition that the 
preponderance of medical evidence suggests existed prior to the 

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97- 01550 

member's entry into a period of active duty in January 1997.  His 
depression was not described as reactive, nor is schizophrenia a 
form of mental illness that is specifically triggered by external 
events . 
Therefore,  applicant's  mental  condition  was  not 
specifically  aggravated  by  the  specific  demands  of  military 
service  -  a requirement for a condition to  be  called  !'service 
The  tendency  to  schizophrenia  frequently  is 
aggravation. 'I 
inherited.  His condition, diagnosed as chronic undifferentiated 
schizophrenia, supports a lengthy incubation period  longer than 
his period. of  service.  Chronic illnesses or diseases which are 
presumed  to  have  existed  prior  to  service  (EPTS)  have  an 
incubation  period  that  rule  out  a  finding  that  they  started 
during inactive duty training, active duty training, or tours of 
active  duty.  While  his  schizophrenia was  rendered  temporarily 
symptomatic while  in a duty status, his chronic and underlying 
condition predated his orders.  Therefore, his schizophrenia and 
depression  are  not  compensable  IAW  Department  of  Defense 
Instruction 1332.38, Physical Disability Evaluation.  While they 
fully endorse the disability compensation for his left tibula and 
fibular  fractures,  they  have  determined  his 
chronic 
undifferentiated  schizophrenia  to  have  EPTS  and  not  to  have 
occurred in the line of duty. 
A complete copy of their evaluation is attached at Exhibit F. 

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: 
The applicant's counsel reviewed the advisory opinion and states 
that he briefly disputes the USAFIs position that the applicant's 
emotional condition is not service-related.  He complained in his 
previous  letter that  such a position was  not  supported by  the 
record.  The USAF now pretends to cure this shortcoming with a 
self-serving statement to the effect that his client's condition 
pre-existed  entry  into  active  duty.  There  is  no  evidence  to 
support this statement.  Although the USAF makes reference to the 
"preponderance of medical evidence, I'  none is cited to contradict 
the  Department  of  Veterans  Affairs  (DVA's) 22  October  1997 
conclusion  to  the  effect  that  'IService  connection  for  major 
depression has been established as  directly related to military 
service.l1  The Board  cannot neglect  the uncontradicted medical 
evidence  in the record.  Speculatory remarks cannot  suffice to 
defeat solid unbiased medical evidence.  Absent expert testimony 
to  the  contrary, DVA's conclusion stands unchallenged, and  the 
applicant's disability compensation must be adjusted accordingly. 
He  respectfully  requests  the  Board  to  dismiss  the  USAFIs 
objections to the requested increase in disability rating.  There 
is in the record a medical conclusion to the contrary proffered 
by  physicians also  trained  and paid  by  the  United  States.  It 
must  be  assumed  that  they  are  cognizant  of  the  same  medical 
theories advanced by the Air Force.  And it must be accepted that 
they chose to disregard them as inapplicable in the applicant's 
case.  The  Government  cannot  go  against  its  own  acts-.  Due 

rr. 

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97-01550 

process requires that any decision by the Board be 
the  evidence  on record.  The  record  in  this  case 
upward  adjustment  in  the  applicant's  disability 
given his service-connected emotional condition. 
Applicant's complete response is attached at Exhibit H. 

supported by 
mandates  an 
compensation 

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 
warranting  correcting  the  applicant's  record  to  show  he  was 
transferred to the Retired Reserve List and not discharged from 
the PRANG  for physical disability with severance pay.  The Board 
notes that the applicant was  hospitalized  during the period he 
had  the option to make  the selection to be  transferred to the 
Inactive  Status  List,  Reserve  Section  or  be  discharged  with 
severance pay.  In addition, the applicant  states that  had  he 
been  able  to make  his  selection, he  would  have  elected  to  be 
transferred to the  Inactive Status List, Reserve Section.  The 
Air Force states that new information regarding the mental state 
of  the  applicant  at  the  time  of  selection  compels  them  to 
recommend relief.  The Board also notes that the applicant states 
he has not cashed the severance pay check and the monies will be 
returned  to  the Air  Force upon  favorable determination by  the 
Board on this portion of his requests.  Therefore, we  recommend 
the  applicant s  records  be  corrected  to  the  extent  indicated 
below. 
4.  Insufficient  relevant  evidence  has  been  presented  to 
demonstrate  the  existence  of  probable  error  or  injustice 
warranting he be allowed to reply/rebut the 20% disability rating 
granted by the PEB.  After reviewing the evidence of record, the 
Board notes that the applicant did not  agree with the findings 
and  recommendations  of  the  Formal  Physical  Evaluation  Board 
(FPEB) on  19  December  1996.  He  was  afforded  three  weeks  to 
provide a rebuttal to the FPEB.  The suspense date was 9 January 
1997.  On  3  January 1997,  the applicant requested an additional 
30 days extension and the request was approved in part, extending 
the suspense date to 16 January 1997.  It was reemphasized to the 
applicant the need for him to contact his military counsel at the 
FPEB  for  assistance  in  preparation  of  his  rebuttal  and  the 
counsel's  phone  and  datafax  numbers  were  included  for  his 
convenience.  However, the Board notes that the applicant did not 
provide a rebuttal by the suspense date and on 22 January 1997, 
officials  in  the  Office  of  the  Secretary  of  the  Air  Force 
approved the findings of the previous two boards and direcited his 

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97-01550 

discharge with severance pay and a 20 percent disability rating. 
Once the Secretary of the Air Force has finalized the findings of 
the FPEB, the determinations made are final.  In regard to the 
applicant's  request for an explanation as to why the Line of Duty 
(LOD) investigation report entered by the PRANG  for an emotional 
condition suffered while  on  active duty  was  denied, the  Board 
notes that the Air  Force states that disability processing  for 
the applicant's depression existed prior to service and would not 
have  been  authorized  even  if  the  LOD  in  question  had  been 
received  prior  to  the  discharge. 
In  regard  to  applicant s 
request  t&at  his disability rating be  increased  to one  of  not 
less than 30%, the Board is of the opinion that the applicant was 
afforded all rights he was entitled under the disability law and 
departmental policy.  We note that applicant was rated based on 
his condition at the time of his disability evaluation.  The Air 
Force is required to rate disabilities in accordance with the VA 
Schedule for Rating Disabilities while  the VA operates under a 
totally  separate system with  a different  statutory basis.  In 
this respect, we note that the VA rates for any and all service 
connected conditions, to  the degree  they  interfere with  future 
employability, without consideration of fitness.  Whereas the Air 
Force rates a member's  disability at the time of separation.  In 
view of the above findings, we do not recommend favorable action 
on this portion of his application. 
5.  The applicant's case is adequately documented and it has not 
been  shown that  a personal  appearance with  or without  counsel 
will  materially  add  to  our  understanding  of  the  issue(s) 
involved.  Therefore, the request for a hearing is not favorably 
considered. 

THE BOARD RECOMME NDS  THA T: 
The pertinent military records of the Department of the Air Force 
relating to APPLICANT, be corrected to show that: 

5 April  1997, he was not honorably discharged from the 
Air  National  Guard  under  AFI  36-3212  (Disability, 
Y) 

b. On 24 April  1997,  his retirement from the 

Air 
National Guard under the provisions of AFI  36-3212 and transfer 
to  the  Retired  Reserve  List  effective  25  April  1997,  were 
approved by competent authority. 

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97-01550 

The following members of the Board considered this application in 
Executive Session on 27 August  1998  and  27  October 1998,  under 
the provisions of AFI 36-2603: 

Mr. David W. Mulgrew, Panel Chairman 
Mr. Jackson A. Hauslein, Member _ -  
Mr. Terry A. Yonkers, Member 
Ms. Gloria J. Williams, Examiner (without vote) 

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

Exhibit 
Exhibit 
Exhibit 
Exhibit 
Exhibit 

A. 
B. 
C. 
D. 
E. 

Exhibit 

H. 

Exhibit 
Exhibit 

F. 
G. 

DD Form 149, dated 28 May 97, w/atchs. 
Applicantis Master Personnel Records. 
Letter, AFPC/DPPD, dated 7 Jan 98. 
Letter, ANG/MPPU, dated 4 Feb 98. 
Applicant's  and Counsel's Responses, dated 
20 Jan 98, w/atchs, 26 Feb 98, and 3 Ju1 98, 
w/atchs . 
Letter, ANG/SGP, dated 15 September 1998. 
Letters, AFBCMR, dated 2 February 1998, 
22 June 1998, and 7 September 1998. 
Counsel's Response, dated 11 October 1998, w/atchs. 

w* 

DAVID W. MULGREW 
Panel Chairman 

. ., . 

.a 

10 

AFBCMR 97-01550 

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: 

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

a.  On 25 April 1997, he was not honorably discharged from th 

National Guard under AFI 36-3212 (Disability, Severance Pay). 

Air 

b.  On 24 April 1997, his retirement from the Puerto Rico Air National Guard under 
the provisions of AFI 36-32 12 and transfer to the Retired Reserve List effective 25 April 1997, 
were approved by competent authority. 

V  Air Force Review Boards Agency