RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  98-01410
            INDEX NUMBER:  110.02, 128.04,
                           131.00
            COUNSEL:  NONE

            HEARING DESIRED:  YES

___________________________________________________________________

APPLICANT REQUESTS THAT:

His 21 September 1992 discharge by reason of  physical  disability  be
set aside, with reinstatement of lost active duty time (restore to his
original Total  Active  Federal  Military  Service  Date  (TAFMSD)  of
21 June 1983 and pay date of 7 April 1983), and with on time promotion
to the grade of major.

His Regular Air Force commission be reinstated.

He be given Aviator Continuation Pay (ACP) beginning in 1992.

Amendment to request (counsel’s undated letter (Exhibit  J)):   He  be
given direct promotion to the grade of major by the CY94 Central Major
Selection Board; direct promotion to the grade of  lieutenant  colonel
by the CY98 Central Lt Colonel Board; and correction of his records to
reflect that he never had a herniated disc and does not require future
waivers.

___________________________________________________________________

APPLICANT CONTENDS THAT:

On 25 March 1992, he was injured in the line of duty and  subsequently
medically separated.   The  information  contained  in  the  Narrative
Summary for the Medical Evaluation Board (MEB) is  grossly  inaccurate
and was the primary source of information used to separate him.

In support of his request, applicant provided  his  expanded  comments
and  documentation  associated  with  his  medical  discharge.    Also
provided was a letter pertaining to a Flying Class II waiver  for  his
voluntary return to active duty.  (Exhibit A)

___________________________________________________________________

STATEMENT OF FACTS:

On 26 October 1983, applicant  was  appointed  as  second  lieutenant,
Reserve of the Air Force, and ordered to  extended  active  duty.   He
served on continuous active duty, was progressively  promoted  to  the
grade of captain on 26 October 1987, and  integrated  in  the  Regular
component on 27 February 1990.

Applicant’s OER/OPR profile, extracted from the PDS, follows:

     PERIOD CLOSING    OVERALL EVALUATION

         8 Dec 84      Education/Training Report (TR)
        19 Mar 85      TR
        18 Jul 85      TR
        18 Jan 86      1-1-1
        16 Jul 86      1-1-1
        16 Apr 87      1-1-1
        16 Apr 88      1-1-1
        21 Sep 88      Meets Standards (MS)
        21 Sep 89      MS
        20 Apr 90      TR
        20 May 90      MS
        15 Jan 91      MS
         1 Oct 91      MS

The  following  is  a  chronology  of  the  events   surrounding   the
applicant’s disability processing.

      On 23 June 1992, applicant signed a statement indicating he  had
read  his  Medical  Evaluation  Board  (MEB)  narrative  summary   and
discussed his case with his attending physician.

      On 24 June 1992, an MEB convened and established  the  diagnosis
of  herniated  nucleus  pulposus  L5-S1  with  persistent   subjective
radiculopathy; approximate date of origin was 30 March 1992,  and  the
condition  was  incurred  while  entitled  to  basic  pay.   The   MEB
recommended the case be referred  to  the  Physical  Evaluation  Board
(PEB).

      On 15 July 1992, the Informal PEB (IPEB) convened  and  found  a
diagnosis of low back pain,  associated  with  intrinsic  degenerative
changes of L4 and L5 discs and L5S1, herniated nucleus pulposus,  with
radiculopathy the disability was incurred while  entitled  to  receive
basic pay and in the line of duty.  The  IPEB  found  applicant  unfit
because of physical disability and that the degree of impairment might
be permanent.   The  IPEB  recommended  temporary  retirement  with  a
compensable disability rating of 40%.  In  the  remarks  section,  the
IPEB noted that applicant had been on flying status  within  the  last
year and that his low back pain rendered  him  unfit  to  fulfill  the
demands  of  military  service.   However,  his  condition   was   not
sufficiently stable to warrant recommending final disposition  at  the
time.  The IPEB further stated applicant was  unable  to  perform  his
primary AFSC duties and even with non-flying desk duties, he continued
to have symptoms.  He  had  not  responded  to  conservative  therapy.
Although surgery was currently not indicated, it could be an option in
the future.  The PEB recommended a period  of  further  treatment  and
evaluation.  On 22 July 1992, applicant disagreed  with  the  findings
and recommended disposition of the IPEB and demanded a formal  hearing
of the case.

      On 27 July 1992, he was found medically disqualified for  flying
duty by the HQ ATC/Surgeon General.

      On 5 August 1992, the Formal PEB (FPEB) convened  and  confirmed
the diagnosis of the IPEB.  The FPEB further found the applicant unfit
because of physical disability, that the degree of impairment might be
permanent, and  recommended  discharge  with  severance  pay,  with  a
compensable disability  rating  of  20%.   The  FPEB  noted  that  the
applicant had been on duties not involving flying  (DNIF)  since  July
1992 and that his low back pain rendered  him  unfit  to  fulfill  the
demands of military service.  The FPEB further  noted  that  applicant
was unable to perform his primary AFSC duties and even with non-flying
desk duties, he continued to have symptoms.  He had not  responded  to
conservative therapy and  that  although  surgery  was  not  currently
indicated, it could be an option in the future.

      On 5 August 1992, after being advised of the  legal  results  of
the findings and  recommended  disposition  of  the  PEB  and  of  the
applicable case processing procedures  and  appeal  rights,  applicant
agreed with the findings and recommended disposition of the FPEB.

On 21 September  1992,  he  was  honorably  discharged  by  reason  of
physical disability, with entitlement to severance pay.

On 30 April 1998, applicant was cleared to re-enter the Air Force  and
was extended a Flying Class II waiver to resume flying.

On 4 May 1998, he was appointed as captain, Reserve of the Air  Force.
He was voluntarily ordered to extended active duty on 11 May 1998.  He
is currently serving on active duty in the grade of captain.

___________________________________________________________________

AIR FORCE EVALUATION:

The BCMR Medical Consultant reviewed this application and  is  of  the
opinion that no change in  the  records  is  warranted  and  that  the
application should be denied.

The BCMR Medical Consultant stated  that  the  records  available  for
review are not clear on the treatment the applicant received after his
disc disease was diagnosed.  It is evident that he  was  in  duty  not
involving flying (DNIF) status, and that  he  received  some  physical
therapy, but how much actual rest in bed  he  received  is  uncertain.
What is certain, however,  is  that  he  nonconcurred  with  the  IPEB
recommendation to go on the TDRL, a  recommendation  that  would  have
allowed him to receive an adequate trial of rest during his period  of
observation.  Had he accepted this recommendation, it is possible that
he would have resolved his back problem  and  been  returned  to  duty
perhaps within the initial 18-month observation period the TDRL  would
have allowed.  Accepting the FPEB’s recommendation of separation  with
disability severance pay abrogated this possibility to return to  duty
at an earlier date than 1998.

The BCMR Medical Consultant noted  that  the  Department  of  Veterans
Affairs (DVA), as of January 1998, had still listed the  applicant  in
their records as being 40% disabled for his back problem, a  situation
that was apparently rectified prior to his return to active duty.

The complete evaluation is at Exhibit C.

The Chief, Physical  Disability  Division,  AFPC/DPPD,  reviewed  this
application and recommended denial.

DPPD stated that the PEB determines the permanence of  the  impairment
and classifies it as either “Permanent”  or  “May  be  Permanent.”   A
“Permanent” medical condition is one  that  has  stabilized,  and  the
compensable rating is not likely to change while a “May be  Permanent”
condition has not stabilized and the PEB cannot accurately assess  the
ultimate extent of the impairment.  In the applicant’s case, the  IPEB
and FPEB during their evaluations both  determined  his  condition  as
“May be Permanent.”  The permanence determination of  the  applicant’s
medical condition was based on the preponderance of  medical  evidence
provided at the time of his medical evaluation.  DPPD found no medical
evidence to overturn the original findings of the PEB evaluations.

DPPD further stated that a thorough review of the case  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 at the time of his disability  discharge.
The applicant was afforded all rights to which he was  entitled  under
disability law and departmental policy.  The medical aspects  of  this
case are fully explained by the Medical Consultant (Exhibit  C);  DPPD
agreed with his advisory.

The complete evaluation is at Exhibit D.

The Chief, Officer Accessions Branch, AFPC/DPPAOR, stated that if  the
Board determines that applicant’s disability discharge was  in  error,
then they will adjust his total active federal military  service  date
(TAFMSD).  However, if the Board denies his request, his  TAFMSD  will
remain as is.  (Exhibit E)

The Officer Promotion and Appointment Section, AFPC/DPPPO, recommended
denial of applicant’s request for promotion to  the  grade  of  major.
They stated that if  the  applicant  had  not  received  a  disability
discharge in September 1992, and had remained on active duty, he would
have been eligible to meet the CY94A Central  Major  Selection  Board,
which convened on 22 August 1994, as an  in-the-promotion  zone  (IPZ)
eligible.  If selected for promotion, his date of rank (DOR) to  major
would have been 1 November 1995.  At this time, there  is  no  way  to
determine if the applicant would have been promoted.

In order for the applicant to be eligible to meet the CY94A Board,  he
would have had to be brought back on active duty as if he had no break
in service with his original DOR of 26 October 1987 to  the  grade  of
captain.

There are no provisions to promote the applicant off a promotion board
he was not eligible to meet, as the applicant was not on  active  duty
the day the board convened.  However, if the Board determines that the
applicant’s disability discharge was in error, and he is  returned  to
active duty with no break in service, DPPPO stated that he  should  be
considered by a Special Selection Board (SSB) for  the  CY94A  Central
Major Selection Board.

The complete evaluation is at Exhibit F.

The  Chief,  Officer   Appointment/Selective   Continuation   Section,
AFPC/DPPPOC, stated that  if  the  Board  determines  the  applicant’s
disability discharge was in error, and he is reinstated to active duty
with  no  break  in  service,  then  his  Regular  Air  Force  (RegAF)
appointment will be reinstated (to his original date  of  27  February
1990).  However, if the Board disapproves  his  request,  he  will  be
offered a RegAF  appointment  if  selected  for  promotion  to  major.
(Exhibit G)

The Retention Issues Action Officer, AFPC/DPAR, recommended denial  of
applicant’s request for Aviation Continuation Pay (ACP)  consideration
retroactive to 1992.  DPAR stated the Air Force  rules  and  governing
legislation allow the Air Force to offer ACP to any pilot as  long  as
he/she still possesses eligibility.  Applicant was  eligible  for  ACP
when he returned to active duty on 11 May 1998 at the  rate  equal  to
exactly what he would  have  received  on  the  date  of  his  initial
separation.  For whatever reason, he has elected not to  sign  an  ACP
agreement, however, if he chooses to enter an agreement, he may submit
the request to AFPC/DPAR.  (Exhibit H)

___________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel contends that applicant’s initial disability discharge was  in
error due to both an erroneous diagnosis and the failure  of  the  Air
Force to  make  adequate  efforts  at  determining  his  true  medical
condition.  The Air Force also failed to provide adequate  care  which
would have resolved his transitory problem and allowed him  to  remain
on active duty.  As a result of these errors, applicant was denied the
income he would have received from his active  duty  service  and  his
flying duties during the  period  he  was  separated.   He  also  lost
promotion  opportunities  and  longevity  credit  toward   retirement.
Finally, the history of herniated disc in his records will continue to
place his career in jeopardy as he makes future required requests  for
waivers to fly.

Applicant’s letter and counsel’s expanded comments and attachments are
at Exhibit J.

___________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

The BCMR Medical Consultant provided  additional  comments  addressing
counsel’s rebuttal to the advisory opinions.  The  Medical  Consultant
noted that counsel makes much of the advisory opinions relating to the
applicant’s separation with 20%  disability  rather  than  having  the
applicant go on the  Temporary  Disability  Retired  List  (TDRL),  an
option the applicant rejected in his nonconcurrence  with  the  IPEB’s
initial recommendation.  His subsequent  appearance  before  the  FPEB
provided a full review of his case and  symptomatology  and  a  lesser
recommendation of separation with severance pay at the 20%  level  was
recommended and  upheld  through  review.   The  opportunity  for  the
applicant to see what relief might accrue during an 18-month  stay  on
the TDRL was offered, but turned down, not by the  disability  system,
but by the applicant, himself.

As to the difference between a bulging disc and  a  herniated  nucleus
pulposus, the question is quite  irrelevant,  as  the  real  issue  is
whether either of these conditions produced enough  symptomatology  to
render  the  applicant  unfit  for  duty.   Simply  having  a  medical
condition or disease does not, in and of itself, cause a member to  be
considered unfit.  The applicant had  demonstrated  his  inability  to
perform his usual and customary duties because of back  and  radicular
leg pain, thus providing a basis for his being found unfit.

It does not matter what was the cause of the unfitness in  retrospect.
The  fact  is,  the  applicant  had  an   unfitting   condition   that
subsequently resolved allowing him to return to active duty.  The true
indicator of unfitness is an applicant’s inability to perform  routine
duties, limitations which were found by the several  boards  conducted
in his disability processing.

Counsel’s concern is unfounded in the overall evaluation of this case,
and nothing  new  has  been  provided  that  would  warrant  favorable
consideration of the applicant’s request.

The complete evaluation is at Exhibit K.

___________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Applicant disagreed with the additional advisory opinion  provided  by
the BCMR Medical Consultant and provided comments addressing  specific
issues in the opinion.  He  contends  that  proper  care  and  therapy
should have been granted while he was on active duty and the TDRL been
presented as a last resort.  As is clearly shown in  his  rebuttal  to
the advisory opinions, anything  but  proper  care  and  therapy  were
provided before his hasty removal from active duty.

He further stated that the simple fact that he was recalled to  active
duty negates the finding of unfitness.

Applicant’s complete response is at Exhibit M.

___________________________________________________________________

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 warranting partial relief.

      a.  We found no evidence of procedural or legal irregularity  in
the applicant’s disability processing.   Nevertheless,  after  careful
review of the subsequent medical evaluations and in view of  the  fact
that the applicant was qualified to re-enter the Air Force and granted
a Flying Class II  waiver  to  resume  flying,  we  believe  that  his
discharge  for  disability  may  have  been  based  on  an   erroneous
diagnosis.  Also, the extent of treatment the applicant received prior
to his discharge is not clear.  However, in our  opinion,  it  appears
that with proper rest and therapy, the applicant’s medical problem may
have resolved itself within a reasonable period of time, he would have
been able to return to his primary  duties,  to  include  flying,  and
would not have been required to separate.  In view  of  the  foregoing
and to preclude any further injustice to  the  applicant,  we  believe
that any  doubt  should  be  resolved  in  the  applicant’s  favor  by
overturning the discharge  action.   Additionally,  we  conclude  that
based on the subsequent medical evaluations provided by the  applicant
any reference to the “herniated nucleus pulposus, with  radiculopathy”
should be deleted from his records.

      b.  Having determined  that  the  applicant’s  discharge  action
should be overturned, we further  find  that  he  should  be  provided
promotion consideration  for  all  boards  that  he  would  have  been
eligible to meet but for the discharge  action.   We  have  noted  the
applicant’s request for direct promotion to the grades  of  major  and
lieutenant colonel.  However, we believe a duly constituted  selection
board, applying the  complete  promotion  criteria,  is  in  the  most
advantageous position to render this vital determination, and that its
prerogative to do  so  should  only  be  usurped  under  extraordinary
circumstances.  Therefore, it is our opinion that the most appropriate
and fitting relief is to place the applicant’s record  before  Special
Selection Boards for consideration beginning with the CY94A (22 August
1994) Central Major Selection Board and any subsequent boards to which
entitled based on the corrected record.

4.  Based on the above corrected actions, the applicant’s Total Active
Military Service Date  (TAFMSD),  pay  date,  and  Regular  Air  Force
commission will be reinstated to their original dates by  the  offices
of primary responsibility at the Air Force Personnel Center.

5.  Applicant’s request for Aviator Continuation Pay (ACP) retroactive
to 1992 is duly noted.   However,  after  a  review  of  the  evidence
provided, we are not persuaded that further  relief  is  warranted  by
awarding him retroactive ACP for  the  period  in  which  he  was  not
flying.  Accordingly, this portion of his application is denied.

6.  As a final matter, we have noted the applicant’s request that  his
records be corrected to  show  he  no  longer  needs  flying  waivers.
Notwithstanding the fact that his separation may have been based on an
erroneous diagnosis, we believe the interests of both  the  Air  Force
and the individual would best be served  if  this  determination  were
left  to  competent  military  medical  authorities  based  on   their
evaluations of the current status of  the  applicant’s  condition  and
accepted medical principles.

___________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT, be corrected to show that:

      a.  On 20 September 1992, he was found fit for return to  active
military service.

      b.  He was not discharged from all appointments on  21 September
1992 but was continued on active duty and was ordered PCS to his  home
of record (home of selection) pending further orders.

      c.  His appointment as a Reserve of the Air Force in  the  grade
of captain on 4 May 1998, be declared null and void.

      d.  Any and all documents and references to  “herniated  nucleus
pulposus, with radiculopathy” be declared void and  removed  from  his
records.

It is further recommended that he be considered for promotion  to  the
grade of major by a Special Selection Board beginning with  the  CY94A
(22 August 1994) Central Major  Selection  Board  and  any  subsequent
boards to which entitled based on the corrected record.
___________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 4 May 1999, under the provisions of AFI 36-2603:

      Mr. Terry A. Yonkers, Panel Chair
      Mr. Clarence D. Long III, Member
      Mr. Joseph A. Roj, Member

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

     Exhibit A.  DD Form 149, dated 18 May 98, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, BCMR Medical Consultant, dated 9 Jul 98.
     Exhibit D.  Letter, AFPC/DPPD, dated 30 Jul 98.
     Exhibit E.  Letter, AFPC/DPPAOR, dated 13 Aug 98.
     Exhibit F.  Letter, AFPC/DPPPO, dated 17 Sep 98.
     Exhibit G.  Letter, AFPC/DPPPOC, dated 22 Sep 98, w/atch.
     Exhibit H.  Letter, AFPC/DPAR, dated 23 Sep 98, w/atch.
     Exhibit I.  Letter, SAF/MIBR, dated 12 Oct 98.
     Exhibit J.  Letter, from Applicant, dated 20 Oct 98, w/atchs.
     Exhibit K.  Letter, BCMR Medical Consultant, dated 8 Feb 98.
     Exhibit L.  Letter, AFBCMR, dated 8 Feb 99.
     Exhibit M.  Letters from Applicant, dated 23 and 24 Feb 99.




                                   TERRY A. YONKERS
                                   Panel Chair



AFBCMR 98-01410




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 [applicant], be corrected to show that:

            a.  On 20 September 1992, he was found fit for return to
active military service.

            b.  He was not discharged from all appointments on
21 September 1992 but was continued on active duty and was ordered PCS
to his home of record (home of selection) pending further orders.

            c.  His appointment as a Reserve of the Air Force in the
grade of captain on 4 May 1998, be declared null and void.

            d.  Any and all documents and references to “herniated
nucleus pulposus, with radiculopathy” be, and hereby are, declared
void and removed from his records.

      It is further directed that he be considered for promotion to
the grade of major by a Special Selection Board beginning with the
CY94A (22 August 1994) Central Major Selection Board and any
subsequent boards to which entitled based on the corrected record.





            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency