RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  98-01296
            INDEX CODE:  108

            COUNSEL:  None

            HEARING DESIRED:  Yes


_________________________________________________________________

APPLICANT REQUESTS THAT:

His Apr 91  disability  discharge  be  set  aside  and  he  receive  a
disability retirement in the grade of master sergeant  with  all  back
pay and allowances.

_________________________________________________________________

APPLICANT CONTENDS THAT:

His discharge  was  inappropriately  handled  and  he  was  wrongfully
discharged.

Applicant’s complete submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant’s Total Active Federal Military  Service  Date  (TAFMSD)
was 24 Apr 79.

Applicant’s Report of Medical Examination, dated  24 Apr  79,  at  the
time  of  his  enlistment  reflected  no  disqualifying   defects   or
communicable  diseases  were  noted.   The  summary  of  defects   and
diagnoses on the examination reflected extensive grafting to the upper
torso  and  that  the  applicant  was  qualified  for  enlistment  and
induction.

(Records reflect the applicant’s scarring of the neck and chest  areas
were received in a house fire at the age of five).

Applicant’s  Airman  Performance  Report  (APR)/Enlisted   Performance
Report (EPR) profile follows:




            PERIOD ENDING          OVERALL EVALUATION

             23 Apr 80                     8
             15 Dec 80                     9
             15 Dec 81                     8
             15 Dec 82                     8
             25 Sep 83                     6
             25 Sep 84                     7
             23 Jan 85                     7
             23 Jan 86                     8
             28 Aug 86                     9
              9 Jul 87                     9
             16 Apr 88                     9
              2 Dec 88                     9
              2 Dec 89                     5 (New rating system)
             22 Jul 90                     5

Applicant’s promotion date to airman is not available in his  records.
He was promoted to the grade of airman first class,  effective  24 Apr
80.  He was promoted to the grade of senior airman  on  1 Jan  82  and
appointed to noncommissioned officer (NCO) status (sergeant) on  1 Jan
83.  His NCO status was subsequently vacated (there is no  record  why
it was vacated) and he reverted back to the grade  of  senior  airman.
His NCO status  (sergeant)  was  reinstated  on  27 Mar  85.   He  was
promoted to the grade of staff sergeant on 1 Feb 90.

Records reflect that applicant’s scars were  not  found  disqualifying
for enlistment  or  reenlistments  up  to  the  time  of  his  medical
disability processing which was initiated at the height of the  Desert
War.  Applicant was assigned to Clark AB, Philippines, in  a  mobility
position in 1987.  At that time, he was recommended for retraining  to
a non-mobility career field because of a history of extensive  thermal
injury to neck and thorax with massive scaring that prevented him from
wearing  a  gas  mask  properly.   This   was   accomplished   and   a
recommendation for a profile  change  to  limit  assignments  to  non-
mobility positions was considered and accomplished on 13 Mar 87.   The
applicant was considered worldwide qualified with this action.

Upon reassignment to Altus AFB, Oklahoma, applicant’s  limitation  was
reconsidered, a “4P-T” profile was given on 10 Jul  90  for  irritable
bowel syndrome which restricted his duty to work  inside/near  latrine
and disability processing began.   He  was  considered  not  worldwide
qualified with this action.

On 4 Feb 91, a Medical Evaluation Board (MEB) was  convened  at  Altus
AFB.  After consideration of clinical  records,  laboratory  findings,
and  physical  examination,  the  board  established   the   following
diagnosis:  Extensive Keloid formation from thermal injury  preventing
gas mask use (due to the scars which formed about  the  neck  and  jaw
area, there was an impossibility of the mask sealing properly) and the
action recommended by  the  board  was  that  the  applicant  was  not
worldwide qualified and the case was referred to the Informal Physical
Evaluation Board (IPEB).

On 1 Mar 91, the IPEB found the applicant unfit for continued military
service for extensive keloid formation in the neck  region  preventing
him from wearing  a  gas  mask.   Applicant’s  medical  condition  was
identified and accepted by the Air Force  as  a  precondition  to  his
enlistment and was considered to have existed prior to service  (EPTS)
with subsequent service aggravation.  The IPEB recommended that he  be
discharged with severance pay with a 10% disability rating.

On  14 Mar  91,  the  applicant  concurred  with  the   findings   and
recommendation of the IPEB and officials  within  the  Office  of  the
Secretary of the Air Force directed that the applicant  be  discharged
with severance pay and a 10% compensable disability rating  under  the
provisions of Section 1203, Title 10, United States Code (USC).

On 15 Apr 91, the applicant was discharged from the  Air  Force  under
the provisions of AFR 35-4 (Disability Entitled to Severance Pay) with
an honorable  characterization  of  service  in  the  grade  of  staff
sergeant.  He was credited with 11 years, 11 months, and  22  days  of
active service.

_________________________________________________________________

AIR FORCE EVALUATION:

The BCMR Medical Consultant reviewed this  application  and  indicated
that while the intent and action of the disability  evaluation  system
were proper and in keeping  with  guidelines  governing  retention  of
military members, there would seem to be a basic injustice in how  the
military handled the applicant’s career.  He  was  allowed  to  enlist
with known defects that, by  regulation,  should  have  precluded  his
entry on active duty, i.e., scarring  that  interfered  with  wear  of
uniforms or equipment.  The applicant then  served  with  considerable
distinction (after a somewhat rocky start as seen in early performance
reports) for almost 12 years, being allowed to reenlist at least twice
in that time  span.   He  was  approaching  the  end  of  his  current
enlistment when the disability processing was begun in Feb 91  and  in
spite of recommendations from his evaluating physician to allow him to
remain on active duty, the system, instead, considered him  unfit  for
any military service and separated him past the midpoint of his career
with severance pay and no continuing benefits other than Department of
Veterans Affairs (DVA)  eligibility.   Actions  in  this  case,  while
adhering to the letter of the law,  would  seem  to  have  created  an
injustice that should not have occurred.  Nowhere in the  records  can
be found any evidence of administrative or nonjudicial punishments  in
the applicant’s entire 11+ years of service.  There is no doubt in the
BCMR  Medical  Consultant’s  mind  that  the  applicant   could   have
successfully completed a 20-year career  when  we  look  at  the  last
several performance reports he received prior to separation and to cut
this opportunity short after carrying him through more  than  half  of
that  20  years  seems  unjustified  and  unconscionable.   While  the
applicant contends that he should receive retirement in the  grade  of
master sergeant, a grade he feels he might well have achieved, so many
variables determine final grades that this request would be  difficult
to justify.  What does need to  be  accomplished  is  to  correct  the
injustice perpetrated on the applicant by his untimely separation  7 ½
years ago.  The BCMR Medical Consultant is of  the  opinion  that  the
applicant should be considered for retirement in the  grade  of  staff
sergeant effective on  the  20th  anniversary  date  of  his  original
enlistment (24 Apr 79) and that all benefits due him  upon  retirement
be instated as would accrue to any member reaching length  of  service
retirement.   Approval   of   this   recommendation   would   preclude
consideration of a medical  disability  retirement  as  the  applicant
would then have failed to overcome the presumption of fitness required
to  provide  such  a  retirement.   It  is  further  recommended  that
appropriate agencies consider the issue of  recoupment  of  separation
pay and DVA payments as may be required by law.

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

The Chief, USAF Physical Disability Division, AFPC/DPPD, reviewed this
application and indicated that 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  office,  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 an MEB 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.

DPPD stated that based on the circumstances  that  the  applicant  was
accepted with his prior medical condition, allowed  to  reenlist,  was
retrained, and was provided extensive  medical  treatment,  etc.,  the
facts clearly reflect that the Air Force  made  an  honest  effort  to
retain  him  on  active  duty.   It  is  evidenced  that   all   these
circumstances were carefully considered by the IPEB during  their  Mar
91 evaluation in which they commented, “In the opinion of the PEB, the
deterioration of  member’s  condition  overcomes  the  presumption  of
fitness as defined in AFR 35-4, paragraph 3-33.  In the opinion of the
PEB, member is not reasonably capable of satisfying the demands of his
rank and office.  Despite 6-7 scar revisions, the most in 1982, member
remains incapable of achieving a proper gas mask fit.  PEB  considers,
given widespread threat of chemical and biological warfare, that it is
in the best interest of the individual and government, that members be
capable of protecting themselves against this threat.”

In light of the BCMR Medical Consultant’s advisory  opinion  of  3 Nov
98, DPPD forwarded the entire case file to the current IPEB for  their
assessment.   Based  on  the  preponderance  of  evidence,  the  board
concluded that if the applicant was currently serving on  active  duty
with his medical condition, the IPEB would consider him unfit for  the
rigors of military service and recommend that he  be  discharged  with
severance pay with  a  10%  disability  rating.   This  recommendation
confirms the appropriateness  of  the  original  IPEB’s  findings  and
recommendations.   DPPD  does  not  concur  with  the   BCMR   Medical
Consultant’s opinion or  recommendations.   His  suggestion  that  the
applicant  be  granted  a  length  of  service  (20  year)  retirement
effective Apr 99 is without merit.  The applicant was found unfit  for
the rigors of military service and discharged  after  completing  less
than 12 years of active service.  Even should the Board determine that
the Air Force erred in finding him unfit in 1991, the only  reasonable
correction would be to allow him to reenlist and to  serve,  if  able,
until eligible for  a  voluntary  length  of  service  retirement.   A
thorough review of the case file revealed no errors or  irregularities
in the processing of applicant’s case within the disability evaluation
system.  He was appropriately found unfit for the rigors  of  military
service and properly rated under federal disability rating guidelines.
 DPPD recommends denial  of  the  applicant’s  request.   He  has  not
submitted any material or documentation to show he was inappropriately
found  unfit,  rated,  or  processed  under  the  military  disability
evaluation system at the time of his disability discharge.

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

The Retirements Branch,  AFPC/DPPRR,  reviewed  this  application  and
indicated that Section 8914, Title 10, USC, provides that an  enlisted
member must have 20 years of  TAFMS  to  be  eligible  to  voluntarily
retire.  The applicant did not have 20 years of service at the time of
his  discharge.   The  BCMR  Medical  Consultant  suggested  that  the
applicant be considered for retirement in the grade of staff  sergeant
effective on the 20th anniversary  date  of  his  original  enlistment
(24 Apr  79)  and  that  all  benefits  due  him  upon  retirement  be
reinstated as would accrue to any member reaching  length  of  service
retirement.   DPPRR  does  not  support  the  suggestion   to   permit
retirement on the 20th anniversary date  of  his  original  enlistment
because this would be awarding the  applicant  with  eight  years  and
eight days of unserved active service.   DPPRR  recommends  denial  of
applicant’s request.  There are no  provisions  nor  do  they  support
giving the applicant credit for eight years and eight days of unserved
active service to permit retirement for length of service.

A complete copy of the Air  Force  evaluation,  with  attachments,  is
attached at Exhibit E.

The Chief, Inquiries/AFBCMR Section, AFPC/DPPPWB, also  reviewed  this
application and indicated that while the applicant claims that  if  he
had remained in the Air  Force  for  20  years,  he  would  have  been
promoted to the grade of master sergeant, it is not possible  at  this
late date to determine what grade to which he would have been promoted
(if any) if he had remained on active  duty  until  completion  of  20
years.  He had eight years’ time-in-grade (TIG) when he  was  selected
to staff sergeant (his date of rank (DOR) to senior airman  was  1 Jan
82, selected for staff sergeant 11 Jan 90, and assumed  the  grade  on
1 Feb 90).  The average selectee in his promotion Air Force  specialty
code (AFSC) at the time he was selected  had  3.85  years’  TIG.   The
average TIG in his promotion AFSC  for  technical  sergeant  was  6.16
years and the average TIG to master sergeant was 4.36 years during the
time frame he was discharged.  If it had  taken  the  applicant  twice
that of the average selectee in his AFSC to be selected for  technical
sergeant (as it did staff sergeant), he would have  needed  12  years’
TIG to be selected.  Since he was promoted to staff sergeant on  1 Feb
90, he would not have been promoted to technical  sergeant  before  he
completed 20 years’ active service.  In summary, it is not possible to
determine what grade the applicant would have been promoted if he  had
remained on active duty for 20 years.  Based on the length of time  it
took him to be selected for staff sergeant, DPPPWB does not  recommend
he be promoted to a higher grade.  Should the Board decide  to  retire
him with 20 years’ active service, DPPPWB does not recommend  a  grade
higher than staff sergeant.  Based on the rationale  provided,  DPPPWB
recommends denial.

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

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant reviewed the Air Force evaluations and provided a  four-page
response, with  attachments,  including  responses  to  each  advisory
opinion, which is attached at 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  awarding  the
applicant a 20% disability rating.  In  this  respect,  we  note  that
applicant was allowed to enlist in 1979, reenlist, retrain, and remain
on active duty for nearly 12 years with known defects which  the  BCMR
Medical Consultant indicates should have precluded his  initial  entry
on active duty.  It was not until 1987 when he  was  reassigned  to  a
mobility position that concern  was  raised  about  his  inability  to
properly wear a gas mask.  As a result, he was  cross-trained  into  a
non-mobility career field with a profile limiting his  assignments  to
non-mobility positions.  It appears that at no time  until  1990,  was
disability processing considered despite  a  profile  recommending  no
assignments involving mobility or the wearing of protective  equipment
such as a gas mask.  Finally, after being assigned  to  Altus  AFB  in
1990, his profile limitation was evaluated and  disability  processing
commenced.  Subsequently, in 1991, an  IPEB  recommended  that  he  be
separated with severance pay with a  10%  disability  rating  for  his
scarring condition, which, although it existed prior to  service,  was
service-aggravated.  The BCMR Medical  Consultant  believes  applicant
should be awarded a length of service retirement on the basis  of  his
overall performance as demonstrated by his performance reports and the
facts that the Air Force allowed him to continue his service past  the
mid-way point of a 20-year career.  On the other  hand,  the  Physical
Disability Division believes that applicant was properly processed  in
accordance with Air Force  regulations.   In  deference  to  the  BCMR
Medical Consultant, this office even went so far as having applicant’s
records evaluated by an IPEB which concluded that applicant should  be
discharged with severance pay and a 10% disability rating - confirming
the 1991 finding.  Thus we are faced with a dilemma.  On the one hand,
it is clear that applicant should not  have  been  enlisted;  however,
once enlisted, he performed very well.  Why  it  took  the  Air  Force
nearly  12  years  to  conclude  that  he  was  unfit   is   certainly
questionable.  Although we agree  with  the  Medical  Consultant  that
applicant’s career was cut short, and  while  in  most  situations  we
agree with his recommendations, we are not  persuaded  that  applicant
should be retired for length  of  service  and  thereby  be  paid  for
service not performed.  Likewise, we find insufficient  evidence  that
his condition is so severe as to qualify him for a medical  retirement
which requires a 30% disability  rating.   However,  in  our  opinion,
equity dictates that applicant be compensated at  a  higher  rate  for
service-connected aggravation of his medical condition.  Therefore, we
believe he should have been awarded a disability rating of 20%.






Applicant’s request for retirement in the grade of master sergeant  is
duly noted; however, in view of our above determination,  his  request
is moot.

________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT, be corrected to show that at the  time  of  his
separation on 15 Apr 91,  he  was  awarded  a  compensable  disability
rating of 20% vice 10%.

________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 30 September 1999, under the provisions of AFI 36-
2603:

                  Mr. Richard A. Peterson, Panel Chair
                  Mr. Patrick R. Wheeler, Member
              Ms. Rita J. Maldonado, Member
              Mrs. Joyce Earley, Examiner (without vote)

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

     Exhibit A.  DD Form 149, undated.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, BCMR Medical Consultant, dated 3 Nov 98.
     Exhibit D.  Letter, AFPC/DPPD, dated 18 Dec 98.
     Exhibit E.  Letter, AFPC/DPPRR, dated 10 Mar 99, w/atchs.
     Exhibit F.  Letter, AFPC/DPPPWB, dated 11 Mar 99.
     Exhibit G.  Letter, AFBCMR, dated 29 Mar 99.
     Exhibit H.  Letter, from applicant, dated 23 Apr 99,
                 w/atchs.




                                   RICHARD A. PETERSON
                                   Panel Chair



INDEX CODE:  108

AFBCMR 98-01296




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:

      The pertinent military records of  the  Department  of  the  Air
Force relating to, be corrected to  show  that  at  the  time  of  his
separation on 15 April 1991, he was awarded a  compensable  disability
rating of 20% vice 10%.







                                                            JOE     G.
LINEBERGER
                                                         Director
                                                           Air   Force
Review Boards Agency