RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  98-01850
            INDEX NUMBER:  108.00

            COUNSEL:  MR. GARY R. MYERS

            HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

His disability rating of 20% be increased to 40% and that he  given  a
permanent disability retirement, with back pay.

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APPLICANT CONTENDS THAT:

The Formal Physical Evaluation Board (FPEB) results should be  changed
to show a disability percentage award for his lumbar  spine  condition
of between 10 and 20 percent, and for his cervical spine condition  of
10 percent.  The  FPEB  incorrectly  concluded  that  his  lumbar  and
cervical spine conditions  were  psychosomatic  and  did  not  involve
actual  ratable  conditions.   This  was  an  incorrect   and   unjust
conclusion.

In support of  his  request,  applicant  provided  counsel’s  expanded
comments and documentary evidence in support of the requested  action.
(Exhibit A)

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STATEMENT OF FACTS:

Prior to the events under review, the applicant had served  on  active
duty in the Regular  Air  Force  during  the  period  5 December  1975
through 17 December 1984.  He also had  service  in  the  Florida  Air
National Guard, 18 December 1984 through 30 November 1985; the Florida
Army National Guard, 16 September 1988 through 1  December  1989;  and
the US  Army  Reserve  (Indefinite  Ready  Reserve),  2 December  1989
through 1 December 1993.

On 2 December 1993, he enlisted in the Oklahoma Air National Guard for
a period of six years.

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

On 17 June  1997,  a  Medical  Evaluation  Board  (MEB)  convened  and
established the diagnoses of cervical and lumbar  strain,  approximate
date of origin August 1994; and right shoulder  impingement  syndrome,
approximate date of origin May 1996.  The MEB recommended the case  be
referred  to  the  Physical   Evaluation   Board   (PEB).    Applicant
acknowledged notification of the findings and recommendations  of  the
MEB on 20 June 1997.

On 24 July 1997, the  Informal  PEB  (IPEB)  convened  and  found  the
diagnoses of:  Category I-Unfitting Conditions which  are  Compensable
and  Ratable:   (1)   Right   shoulder   impingement   syndrome   with
acromioclavicular joint  arthritis,  disability  rating  of  20%;  (2)
Cervical  lumbar  strain  with  C3-4  bulging   disk   without   nerve
compression, disability rating 0%; (3) Lumbar strain with L3-4 and L4-
5 bulging disk and L5S1 herniated nucleus pulposus, disability  rating
0%; combined compensable rating of 20%.  Category  II-Conditions  that
can be unfitting but not currently  compensable  or  ratable:   Status
post 94 right inguinal hernia repair.

The IPEB found that  the  applicant  was  unfit  because  of  physical
disability and that the  degree  of  impairment  might  be  permanent.
Recommended disposition was  discharge  with  severance  pay,  with  a
compensable disability rating of 20%.

On 30 July 1997, applicant disagreed with the findings and recommended
disposition of the IPEB and demanded a formal hearing of the case.

The Formal PEB (FPEB) convened  on  14  August  1997.   Based  on  the
applicant’s testimony and the medical evidence, the FPEB supported the
findings and recommendations of the  IPEB  and  recommended  that  the
applicant be discharged with  severance  pay  with  a  20%  disability
rating.   Applicant  disagreed  with  the  findings  and   recommended
disposition of the FPEB.  The case was then forwarded to the Secretary
of the Air Force Personnel Council for final review.

On 17 October 1997, the Secretary of the Air Force directed  applicant
be discharged and receive severance pay with a  disability  rating  of
20%.

Since the applicant had  at  least  15  but  less  than  20  years  of
satisfactory service computed under Section 12732, Title  10  USC,  he
was eligible to elect either discharge with severance pay or apply for
early qualification for retired pay at age 60.  On 25  November  1997,
applicant elected to apply for early qualification for retired pay  at
age 60.  He was honorably discharged from the Oklahoma ANG on 10 March
1998 and transferred to the Air Force Reserve  (Nonaffiliated  Reserve
Section) effective 11 March 1998.  His name  was  placed  on  the  Air
Force Reserve Retired List (awaiting retired pay at age 60)  effective
12 March 1998.

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AIR FORCE EVALUATION:

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

The Medical Consultant stated the records indicate applicant was found
unfit and separated because of right  shoulder  impingement  syndrome,
20% ratable under the Department  of  Veterans  Affairs  Schedule  for
Rating Disabilities (VASRD),  Code  5299-5003.   Additional  unfitting
conditions which were compensable  and  ratable  were  considered  for
cervical and lumbar strains with bulging  disks.   These  latter  were
rated under VASRD Code 5299-5293/5 at 0% disabling based  on  physical
findings and testimony presented at  the  Formal  Physical  Evaluation
Board proceedings on 14 August 1997.  The applicant’s contention  that
his disk disease was not considered by the disability  system  is  not
borne  out  by  review   of   records.    Nonconcurrence   with   this
recommendation led to review at the Air Force  Personnel  Board  whose
decision on 17 October 1997 upheld the PEB  recommendation.   Findings
and recommendations of the PEB were sustained at all levels of  review
and are well supported by the evidence of record.

There is no evidence to  support  a  higher  rating  at  the  time  of
separation.    The   applicant’s   case   was   properly    evaluated,
appropriately  rated  and  received  full  consideration   under   the
provisions of AFI 36-3212.

The applicant’s demonstrated disk disease and degenerative changes  of
his spine were found ratable  at  the  0%  level  given  the  lack  of
physical findings and the work history provided by  the  applicant  in
his appeal to the FPEB which indicated his continued ability  to  work
40-hour (often longer) weeks.  The FPEB concluded that the  conditions
precluded continued service in the military with its unique rigors.

The complete evaluation is at Exhibit C.

The Physical Disability Division, AFPC/DPPD, reviewed this application
and recommended denial, stating 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.  (Exhibit D)

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel contends that  the  advisory  opinions  failed  to  take  into
account both MRI and EMG evidence which showed nerve  impingement  and
abnormalities associated with the lumbar and cervical spine.  (Exhibit
F).
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ADDITIONAL AIR FORCE EVALUATION:

The BCMR Medical Consultant provided  additional  comments  addressing
counsel’s contention concerning the MRI and EMG evidence.  The Medical
Consultant  stated  these  studies  indicated  no  significant   nerve
impingement  at  any  level  of  the  applicant’s  degenerative   disc
problems,   and   the   nerve   study   suggested   only   mild,   and
“conceivably ... within normal limits  for  age”  conduction  changes,
certainly not changes significant  enough  to  be  considered  in  the
applicant’s overall disability award.

The Medical Consultant stated that the true indicator of unfitness  is
an applicant’s inability to perform routine duties, limitations  which
were  not  found  by  the  several  boards  conducted  in  applicant’s
disability processing.

The complete evaluation is at Exhibit G.

___________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

The additional Air  Force  evaluation  was  forwarded  to  applicant’s
counsel on 9 February 1999 for review and comment.  As of  this  date,
no response has been received by this office.

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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.    After   careful
consideration of the evidence of record  and  noting  the  applicant’s
contentions, we found that no  evidence  has  been  presented  showing
that, at the time of his separation, the diagnoses made  by  competent
medical authority and the subsequent ratings were improper or based on
erroneous information.  Therefore, we agree with the comments  of  the
Chief Medical Consultant, BCMR, and adopt his rationale as  the  basis
for our conclusion that the applicant has not been the  victim  of  an
error or injustice.  In view of the foregoing, and in the  absence  of
evidence showing that the applicant was improperly evaluated  or  that
the ratings were erroneous, we find no compelling 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   issues   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.

___________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 1 April 1999, under the  provisions  of  AFI  36-
2603:

      Mr. Vaughn E. Schlunz, Panel Chair
      Mr. Philip Sheuerman, Member
      Ms. Patricia D. Vestal, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 30 Jun 98, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, Medical Consultant, BCMR, dated 22 Sep 98.
    Exhibit D.  Letter, AFPC/DPPD, dated 9 Oct 98.
    Exhibit E.  Letter, SAF/MIBR, dated 26 Oct 98.
    Exhibit F.  Letter from Counsel, dated 1 Feb 99.
    Exhibit G.  Letter, BCMR Medical Consultant, dated 8 Feb 99.
    Exhibit H.  Letter, AFBCMR, dated 9 Feb 99.




                                   VAUGHN E. SCHLUNZ
                                   Panel Chair