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AIR  FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

IN THE MATTER OF: 

DOCKET NO:  98-01282 

COUNSEL: 

HEARING 3ESIRED:  YES 

;.  g 7 *  )3 

- 1  

Applicant  requests  that  his  disability  discharged  be  changed  to 
permanent  disability  retirement. 
Applicant's  submission  is  at 
Exhibit A. 

The appropriate Air  Force offices evaluated  applicant's request and 
provided  advisory opinions to the Board recommending the application 
be  denied  (Exhibit C).  The advisory  opinions were forwarded to the 
applicant  and  counsel  for  review  and  response  (Exhibit D).  As  of 
this date, no response has been received by  this office. 

After  careful consideration of applicant's request and the available 
evidence  of  record,  we  find  insufficiesz  evidence  of  error  3 ~ '  
The  facts  and  opinions 
injustice  to  warrant  corrective  action. 
stated  in  the  advisory opinions  appear  to be  based  on  the  evidence 
of  record  and  have  not  been  rebutted  by  applicant  or  counsel. 
Absent  persuasive  evidence  applicant  was  denied  rights  to  which 
entitled, appropriate regulations were  nor  followed,  or appropriate 
standards were not applied, we find no basrs  to disturb the exisrina 
record. 

Accordlngiy, applicant's request is denied. 

The  applicant's  case  is  adequately  docume-zed  and  it  has  not  beer, 
shown  that  a  personal  appearance  with  3 r   without  counsel  W L L L  
materially  add  to  our  understanding  of  the  issue(s)  involvea. 
Therefore, the request for a hearing  is noz 5avorably considered. 

The  Board  staff  is  directed  to  inform  apt-icant  of  this  decis-7 
A p p h c a n t   should  also  be  informed  that  t P - s   decision  is  fina-  G r i i  
will  only  be  reconsidered  upon  the  preseTcation  of  new  relevarLt 
evidence  which  was  not  reasonabiy  avai-able  at  tne  time  ~ ~ i e  
application was filed. 

Members  of  the  Board,  Mr.  Vaughn  E.  Schlunz,  Mr.  Kenneth  L. 
Reinertson, and Mr. Edward C. Koenig, I1 ccnsidered this app1icat:cn 
on  17 December  1998, in accordance with  the provislons  of Air  Forct 
Instruction 36-2603, and the governing  stac,ze,  10 U.S.C. 1552. 

Panel C:z:r 

Exhibits: 

A.  Applicant's DD Form 149 
B.  Available Master Personnel Records 
C .   Advisory Opinions 
D .  

SAF/MIBR Ltr Forwarding Advisory  0 p i n i c r . s  

August 3, 1998 
98-01 282 

MEMORANDUM FOR AFBCMR 

FROM:  BCMR Medical Consultant 

1535 Command Drive, EE Wing, 3rd Floor 
Andrews AFB MD  20762-7002 

SUBJECT:  Application for Correction of Militarv Records 

Applicant's entire case file has been reviewed and is forwarded with the following findings, 

conclusions and recommendations. 

REQUESTED ACTION:  The applicant was separated with 20% disability severance pay on 

19 Nov 96 for ankylosing spondylitis after serving 5 years, 6 months and 13 days on active 
duty.  He applies now for a permanent disability retirement based on what the Department of 
Veterans Affairs (DVA) has allowed. 

FACTS: The applicant served as an aircraft mechanic and was initially seen in the orthope- 

dic service in October 1995 with complaints of back pain dating back two to three years.  He 
underwent a thorough evaluation including rheumatology consultation which resulted in his 
condition being considered a seronegative spondyloarthropathy (Le. , no demonstrable rheu- 
matoid or other identifiable inflammatory reason for the spinal condition).  X-rays of the spine 
were negative, and continued to be negative at the time of subsequent DVA evaluation.  His 
condition interfered with performance of his military duties, and he met a Medical Evaluation 
Board on 17 Sep 96 with referral to the Informal Physical Evaluation Board (IPEB) who recom- 
mended separation with 20% disability severance pay based on his diagnosis, his current 
physical findings, and his potential for on-going problems.  The applicant readily accepted this 
recommendation, and was separated with severance pay of $15,631.20, as noted on his DD 
Form 214.  A psychiatric diagnosis of dysthymia (alternating mood swings) was considered by 
the IPEB and found not unfitting, so no compensation was awarded for it. 

Upon presentation to the DVA, the applicant was evaluated at 60% disabled from-the spon- 
dylitis (in spite of their negative x-ray studies and the applicant's minimal symptoms and physi- 
cal findings), 30% for depression suffered since relating to his separation and home and work 
difficulties, 10% for athlete's foot, and 10% for tinnitus, a combined rating of 80%. 
rating that leads the applicant to seek permanent disability retirement. 

It is this 

DISCUSSION: The reason why the applicant could be found 20% disabled by the Air Force 
and later be granted 80% service-connected disability by the DVA lies in understanding the dif- 
ferences between Title 10, USC, and Title 38, U.S.C.  Title 10, U.S.C., Chapter 61 is the federal 
statute that charges the Service Secretaries with maintaining a fit and vital force.  For an indi- 
vidual 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.  Once this 
determination is made, namely that the individual is unfit, disability rating percentage is based 
upon the member's 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, 

Page 2 

AFBCMR Case # 98-01282 

although not unfitting at the time of separation, may later progress in severity and alter the indi- 
vidual'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 
unfit for military duty at a particular disability rating, and yet soon thereafter receive a compen- 
sation rating from the DVA for service-connected, but militarily non-unfitting conditions in addi- 
tion to the rating for which the individual was separated.  The evidence presented at the time of 
the applicant's disability system evaluation clearly indicated only subjective evidence of impair- 
ment with no laboratory or x-ray evidence of significant spinal disease.  Evidence of record es- 
tablishes beyond all reasonable doubt that the applicant was properly evaluated and rated at 
the time of his separation, that the reason for his separation was proper, and that no error or 
injustice occurred in this case. 

RECOMMENDATION: The BCMR Medical  Consultant is of the opinion that no change in 

the records is warranted and the application should be denied. 

DEPARTMENT OF THE AIR FORCE 
HEADQUARTERS AIR FORCE PERSONNEL CENTER 

RANDOLPH AIR FORCE BASE, TEXAS 

14 Sep 98 

MEMORANDUM FOR AFBCMR 

FROM: 

HQ AFPCDPPD 
550 C Street West Ste 06 
Randolph AFB TX 78 150-4708 

SUBJECT: 

orrection of Military Record 

REQUESTED ACTION:  Applicant requests that his Nov 96 disability discharge be set 

aside and he receive a disability retirement. 

FACTS:  Applicant was involuntarily relieved from active duty for physical disability 

under the provisions of AFI 36-3212.  Member completed five years six months, and thirteen days 
of active duty.  At the time of his discharge, member received $15631.20. 

On 19 Nov 96, member was discharged with severance pay with a 20 percent disability 
rating.  His request for a disability retirement is based on a subsequent higher disability rating 
received from the Department of Veterans Affairs (DVA) for numerous conditions which were not 
unfitting at the time of his separation. 

DISCUSSION:  The purpose of the military disability system is to maintain a fit and vital 
force by separating members who are unable to perform the duties of their ofice, grade, rank or 
rating.  Members who are separated or retired for reason of physical disability may be eligible, if 
otherwise qualified, for certain disability compensations. Eligibility for disability processing is 
established by a Medical Evaluation Board W B )  when that board finds that the member may not 
be qualified for continued military service. The decision to conduct an MEB is made by the 
medical treatment facility providing care to the member. 

An MEB was convened at Eglin AFB, Florida on 17 Sep 96 and referred to the Informal 

Physical Evaluation Board (IPEB).  On 27 Sep 96, the IPEB found the member unfit for continued 
military service for a diagnosis seronegative spondyloarthropathy ankylosing spondylitis and 
recommended he be discharged with severance pay with a 20 percent disability rating.  Applicant 
concurred with the findings and recommendation of the IPEB and subsequently officials within the 
Office of the Secretary of the Air Force directed that the applicant be discharged with severance 
pay and a 20 percent compensable disability rating under the provisions of Title 10, USC, Section 
1203. 

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 6 1, is the federal statute that charges the Service Secretaries with 

I.. 

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 member's 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, Title 38, 
USC, which governs the VA 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 VA for a service- 
connected, non-unfitting condition. 

A thorough review of the AFBCMR file revealed no errors or irregularities in the 

processing of the applicant's case within the disability evaluation system.  He was appropriately 
found unfit for continued military service and properly rated under federal disability rating 
guidelines.  The medical aspects of this case are fully explained by the Medical Consultant; we 
agree with his advisory. 

RECOMMENDATION:  We recommend denial of the applicant's request.  The applicant 

has not submitted any material or documentation to show he was inappropriately rated or 
processed under the military disability evaluation system at the time of his disability discharge. 

ChieTPhysikl Disability Division 
Directorate of Pers Prog Management