. 

AIR FORCE BOARD FOR CORRECTION OF MILITARY 

RECORDS 

RECORD OF PROCEEDINGS 

IN THE MATTER OF: 

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DOCKET NUMBER: 
COUNSEL : 
HEARING DESIRED:  Yes 

APPLICANT REOUESTS THAT: 

His involuntary discharge be changed to a medical retirement. 

APPLICANT CONTENDS THAT: 

At  the  time  of  his  discharge,  sufficient  service-connected 
impairment existed to fully support medical retirement.  Most of 
these  impairments were  wrongfully  disregarded  resulting  in  his 
discharge. 

In  support  of  the  appeal, applicant  submits  the  Department  of 
Veterans Affair's  (DVA) Rating decision, DD Form 214, Request and 
Authorization for Separation (AF Form 100). 

Applicant's complete submission is attached at Exhibit A. 

STATEMENT OF FACTS: 

Applicant  enlisted in the Regular Air  Force on  2 March  1987 in 
the grade of airman basic for a period of 4 years.  On 31 October 
1990 he reenlisted for a period of 6 years. 

On 15 September 1994, the applicant was involved in a motorcycle 
accident  in which  he  sustained a  closed head  injury, right  arm 
abrasion,  injuries  to  his  cervical  and  thoracic  spine, and  a 
right foot injury. 

In August 1995, because of continuing need for profiles regarding 
the foot problem, he was presented to a Medical Evaluation Board 
(MEB) who  referred him  to an  Informal Physical Evaluation Board 
(IPEB) on 14 September 1995. 

97-03556 

On  13  October  1995, the  I P E B   returned  the  MEB  to  the  medical 
treatment  facility  for  completion  of  a  Line  of  Duty  (LOD) 
determination and  an  evaluation  by  a  neurologist  for  a  closed 
head injury. 

The record contains no further report from the I P E B ,   although the 
applicant remained on active duty. 

In April  1996, applicant underwent  surgery for the  foot problem 
which  eliminated  all  the  pre-operative  symptoms  which  later 
returned  in  diminished  intensity  after  he  resumed  athletic 
activities. 

In May  1996, a serial profile report  is noted  to have  returned 
the applicant to duty with “removal of all restrictions and holds 
by officials at HQ AFMPC,” this determination having been made in 
their deliberations on 16 April 1996. 

Applicant  was  honorably  discharged  on  30  October  1996, in  the 
grade  of  staff  sergeant,  for  non-promotion  at  high  year  of 
tenure, under the provisions of AFI 36-3208  (Reduction in Force). 
He had  completed 9 years, 7 months, and 29 days of  total active 
military  service  and  received  $12,422.64  in  separation  pay. 
Applicant  declined  to  have  a  separation  physical  examination 
performed. 

On 24 September 1997, the DVA evaluated applicant‘s disabilities, 
effective  31  October  1996,  at  a  combined  evaluation  of  80 
percent. 

Service connected Temporomandibular joint dysfunction - 

40 percent. 

Service  connected  residuals  of  injury  to  lumbar  spine 

with spondylosis of L2-L3 with spur formation -  40 percent. 

Service  connected  residuals  of  injury  of  the  thoracic 
spine with compression fracture of the lumbar spine -  20 percent. 
Service connected residuals of lateral meniscus tear and 
anterior  medical  tear,  status  post  menesectomy,  and  partial 
anterior cruciate ligament tear -  10 percent. 

Service connected bursitis of the right shoulder (major) 

-  10 percent. 

Service connected migraine headaches -  10 percent. 

97-03556 

Service connected residuals of  Les Franc sprain of  the 

right foot and ankle -  10 percent. 

Service  connected  duodenal  ulcer  and  with  Brunner's 
gland  hyperplasia  of  the  duodenal  bulb  and  gastroesophageal 
reflux disease -  0 percent. 

Service connected flat feet -  0 percent. 
Service connected superficial peroneal nerve neuroma -  0 

percent. 

AIR FORCE EVALUATION: 

The Chief Medical Consultant, AFBCMR,  reviewed this  application 
and states that evidence of record and medical examinations prior 
to  separation  indicate  the  applicant  was  fit  and  medically 
qualified  for  continued  military  service  or  appropriate 
separation  and  did  not  have  any  physical  or  mental' condition 
which would have warranted consideration under the provisions of 
AFI 36-3212.  Action and disposition in this case are proper and 
reflect compliance with Air Force directives which implement the 
law.  The reason why the applicant could be declared fit for duty 
by  the  Air  Force  and  later  be  granted  80  percent  service- 
connected disability by the Department of Veterans' Affairs  (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. 
For  an  individual  to  be  considered  unfit  for 
military  service, there  must  be  a  medical  condition  so  severe 
that  it prevents performance of  any work  commensurate with  rank 
and experience.  This, obviously, did not apply to the applicant, 
as he  had been  found fit  to  return to  duty and his  performance 
reports continued to show his excellent job performance including 
the last one that closed out in November 1995 while he was having 
the  most  problem  with  his  foot. 
Congress,  very  wisely, 
recognized that  a person  can acquire physical  conditions which, 
although  not  unfitting  at  the  time  of  separation,  may  later 
progress  in  severity  and  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 that  are  not  unfitting  for 
military  service.  This  is the  reason why  an  individual can be 
considered fit for military duty up  to the day of  separation or 

9 7 - 0 3 5 5 6  

retirement,  and  yet,  soon  thereafter,  receive  a  compensation 
rating  from  the  DVA  for  service-connected, but  militarily  non- 
unfitting conditions.  Evidence of record establishes beyond all 
reasonable doubt  that  the applicant was medically qualified for 
continued  active  duty,  that  the  reason  for  his  separation was 
proper,  and  that  no  error  or  injustice  occurred  in  this case. 
The Medical Consultant recommends that the application be denied. 
A complete copy of the evaluation is attached at Exhibit C. 

The Chief, Physical Disability Division, AFPC/DPPD, also reviewed 
this application and states that a review of the applicant’s case 
file revealed no mental or physical defects to show he was unfit 
for continued military  service due  to  a physical  disability at 
the time of  his  involuntary discharge.  The medical  aspects of 
this case are fully explained by the Medical Consultant and they 
fully agree with his advisory.  The applicant has not  submitted 
any material or documentation to show that he was unfit due to a 
physical disability under the provisions of  Title  10 USC  at  the 
time  of  his  involuntary  administrative  discharge  from  active 
duty. 
Therefore,  they  recommend  denial  of  the  applicant‘s 
request. 

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

ADDITIONAL AIR FORCE EVALUATION: 

The Chief Medical  Consultant, AFBCMR,  reviewed  this  application 
and states that the mere existence of certain conditions does not 
equate  during  active  duty  service to  being  unfitting, that  is, 
conditions  that  preclude  performance  of  any  and  all  duties 
commensurate with  rank, station or rating.  In  the  DVA system, 
however, any condition that  is  found to have  arisen or  to  have 
been aggravated by a member’s military service can be compensated 
as has occurred with this individual’s various conditions.  These 
ratings may vary from time to time as provided by  law per Title 
38, USC.  They do not, however, mean that an error occurred in an 
individual’s disability  rating  given  at  the  time  of  his  final 
disposition  from  military  service  or  even  that  disability 
consideration should have been entertained.  There is no evidence 
that  the applicant was  eligible  for disability consideration at 
the time of his separation from the military.  The BCMR Medical 
Consultant  is of  the  opinion  that  no  change  in  the  previously 
rendered recommendations be made. 

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

4 

97-03556 

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: 

Complete  copies of  the Air  Force  evaluations were  forwarded to 
the applicant on  9 February  1998 and  28 April  1998, for review 
and response.  As of this date, no response has been received by 
this office. 

THE BOARD CONCLUDES THAT: 

1.  The  applicant  has  exhausted  all  remedies  provided  by 
existing law or regulations. 

2.  The application was timely filed. 

3.  Insufficient  relevant  evidence  has  been  presented  to 
demonstrate  the  existence of  probable  error  or  injustice.  The 
Board  notes  that  the  applicant  was  returned  to  duty  and  his 
performance  reports  continued  to  show  his  excellent;  job 
performance.  Title  10, USC, Chapter  61  is  the  federal  statue 
that charges the Service Secretaries with maintaining a fit and 
vital  force. 
For  an  individual  to  be  considered  unfit  for 
military  service, there  must  be  a  medical  condition  so  severe 
that  it prevents performance of  any work  commensurate with  rank 
and experience.  This, obviously, did not apply to the applicant. 
Therefore, we are in agreement with the detailed comments of the 
BCMR  Medical  Consultant  and  in  the  absence  of  evidence  to  the 
contrary,  we  find  no  basis  to  recommend  granting  the  relief 
sought in this application. 

4.  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 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. 

. 

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L

 

97-03556 

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

Mr. David C. Van Gasbeck, Panel Chair 
Dr. Gerald B. Kauvar, Member 
Ms. Rita J. Ma1donado;Member 
Ms. Gloria J. Williams, Examiner (without vote) 

The following documentary evidence was considered: 

Exhibit 
Exhibit 
Exhibit 

A. 
B. 
C. 

DD Form 149, dated 12 November 1997, w/atchs. 
Applicant's Master Personnel Records. 
Letter, BCMR Medical Consultant, 
dated 14 January 1998. 
Letter, AFPC/DPPD, dated 29 January 1998. 
Letter, BCMR Medical Consultant, 
dated 20 April 1998. 
Letters, AFBCMR, dated 9 February 1998 and 
28 April 1998. 

Exhibit 
Exhibit 

D. 
E. 

Exhibit 

F. 

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DAVID c. VAN  SBECK 
Panel Chair 

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