RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  98-02476
            INDEX CODE:  108.00
      XXXXXXX    COUNSEL:  JAMES E. KEOUGH

      XXXXXXX    HEARING DESIRED:  YES



APPLICANT REQUESTS THAT:

He be permanently retired by reason  of  physical  disability,  effective  6
July 1998, with retroactive pay and allowances.


APPLICANT CONTENDS THAT:

He was erroneously  discharged  because  he  did  not  receive  a  discharge
physical.

The applicant states that while on active duty he  incurred  injuries  which
resulted in medical problems with both of his feet.   In  addition,  he  has
high blood pressure, back problems, kidney problems,  and  is  suspected  of
having glaucoma.  He was also attacked by another service member,  while  on
active duty, which resulted in head injuries and vertebrae injuries  to  his
neck.  In view of these numerous  medical  problems,  he  should  have  been
referred to a medical evaluation board and permanently retired by reason  of
physical disability.

In support of the appeal, applicant submits copies of his  medical  records,
statements from physicians and a copy of an incident report.

The applicant’s complete submission is attached at Exhibit A.


STATEMENT OF FACTS:

On 30 May 1995, the applicant enlisted  in  the  Air  Force  Reserve  for  a
period of 6 years in the grade of staff sergeant (E-5).

A Medical Evaluation Board (MEB) convened on 11 September  1997,  and  based
on the diagnosis of left achilles tendinosis secondary to spike gaff  injury
referred him to an Informal Physical Evaluation Board (IPEB).

On 24 October 1997, an IPEB convened  and  found  the  applicant  unfit  for
continued  military  service  based  on  the  diagnosis  of  left   achilles
tendinosis secondary to spiked gaff injury,  status  post  12 December  1996
excision of tendinosis, rated at 20% and recommended he be  discharged  with
severance pay.

On 29 October 1997, the applicant was treated for headache  and  chest  pain
at a  Military  Treatment  Facility.   He  was  transferred  to  a  civilian
facility  and  admitted  with  the  diagnosis  of  chest  pain   (atypical),
hypertension, rule out gastritis secondary to  Motrin,  and  an  allergy  to
erythromycin.

On 3 December 1997,  a  recall  of  the  MEB  was  requested  based  on  the
treatment applicant received on 29 October 1997.

On 16 January 1998, an MEB convened and  based  on  the  diagnosis  of  left
achilles tendinosis secondary to spike  gaff  injury,  atypical  chest  pain
(resolved), hypertension, and gastritis, refered him to an IPEB.

Based on an addendum summary, dated  29  January  1998,  processing  of  the
applicant's case was resumed and the updated MEB was presented to the IPEB.

On 13 March 1998, the IPEB found the applicant unfit for continued  military
service based on the diagnosis of  left  achilles  tendinosis  secondary  to
spiked gaff injury, status post 12 December  1996  excision  of  tendinosis,
rated at 20% and recommended he be discharged with severance pay.  The  IPEB
also found the applicant’s hypertension with associated atypical chest  pain
to be unfitting but not ratable.  The applicant  agreed  with  the  findings
and recommended disposition.

On 9 April 1998, the Physical Review  Counsel  directed  that  applicant  be
discharged with severance pay and a 20% compensable disability rating  under
the provisions of Title 10, USC, Section 1203.

On 9 April 1998, the applicant was notified that since he had  at  least  15
but less than 20  years  of  satisfactory  service  computed  under  Section
12732, Title 10 USC, he could elect either discharge with severance  pay  or
apply for early qualification for retired pay at age 60.

On l5 April 1998, the applicant  elected  to  receive  disability  severance
pay; thereby, waiving his military retired pay at age 60.

On 1 May 1998, the applicant was assaulted (e.g.,  struck  in  the  forehead
with an open palm) by  an  another  Air  Force  member  in  his  office  and
received treatment for the injury at a military medical facility.

On 1 May 1998, the applicant was placed on quarters for 48 hours for a  neck
contusion.  He was extended on quarters for 24  hours  on  2  May  1998  for
cervical strain/sinusitis and on 4 May 1998 for 24 hours for an  acute  neck
strain.

The applicant underwent a fascia cut and release operation on  25 June  1998
at the   Medical Center.

On 29 June 1998, the applicant received a Magnetic Resonance  Imaging  (MRI)
which revealed a herniated disk at cervical disk 3-4 and 5-6.

On 6 July 1998, the applicant was honorably discharged under the  provisions
of AFI 36-3212 (Disability - Entitled to Severance Pay  20%).   He  received
$42,717.60 in severance pay.  He completed 12 years, 4 months, and  27  days
of active service, with 7 years, 8 months, and 23  days  of  prior  inactive
service.

On 14 July 1998, a Line of Duty (LOD) determination  found  the  applicant’s
injuries (i.e., neck contusion, swelling,  numbness,  cervical  strain,  and
spine disc protusions) were in the line of duty.

On 15 July 1998, a LOD found the applicant’s  condition  (i.e.,  right  foot
plantar fasciitis, inflammation of the fascia underneath right foot) was  in
the line of duty.

The Department of Veterans Affairs  (DVA)  awarded  the  applicant  a  total
combined  compensable  disability  rating  of   60%   for   the   following;
hypertension - 10%, kidney stones - 10%, gastritis  with  reflux  disease  -
10%, glaucoma - 10%, residuals of achilles tendon  injury  -  20%,  cervical
strain with muscle spasm - 10%, and right foot plantar fasciitis - 20%.


AIR FORCE EVALUATION:

The BCMR Medical Consultant reviewed the application  and  states  that  the
applicant was discharged after a  medical  disability  evaluation  for  Left
Achilles Tendonitis secondary to an  injury  incurred  during  in  technical
training school while climbing an electrical pole as part of  his  training.
The injury resulted in chronic pain and he underwent  surgical  excision  of
part of  the  resulting  scar  in  December  1996.   When  he  continued  to
experience pain, he compensated by overuse of his  left  leg  and  caused  a
plantar fasciitis in  the  right  foot.   For  this  he  underwent  surgical
correction on 25 June 1998, 12 days before he was  discharged.   This  later
problem was not included  in  the  IPEB’s  deliberations,  which  Board  had
convened on 13 March 1998, some 3 months earlier.   Records  are  not  clear
where authorization for this late surgery came from,  and  at  the  time  of
discharge, post-operative care was suspended and the applicant was  told  to
seek follow-up care in the civilian sector, which care was  refused  by  the
local Health Management Organization  (HMO).   Two  other  medical  problems
developed at about the same time as the IPEB was evaluating the  record  for
disability compensation:  nephrolithiasis  (kidney  stones)  and  neck  pain
following an incident in which  a  newly  promoted  senior  master  sergeant
allegedly struck the applicant with his open hand on the forehead  when  the
applicant extended his congratulations on the promotion.  This  occurred  on
1 May 1998 and the applicant was then seen on  several  occasions  for  neck
stiffness and pain.  A  MRI  was  performed  which  revealed  some  apparent
degenerative disc  disease  with  mild  disc  protrusions  at  two  cervical
vertebrae.  This incident is well documented in the records, as well as  the
aftercare provided.  It is unclear if the incident had any  bearing  on  the
applicant's subsequent complaints, but,  again,  this  information  was  not
considered prior to discharge.  There is no record of the  applicant  having
received a discharge physical even though there were  new  medical  problems
that had not been present at the time of dictation of the narrative  summary
prepared for his disability evaluation.  It appears that  an  injustice  has
occurred in this case  that  should  be  evaluated.   New,  and  potentially
significant, medical problems were evident prior to his discharge that  were
not considered in the disability evaluation process.  No  determination  was
made because of this oversight that would  have  clarified  whether  or  not
additional disability compensation should have  been  awarded.   The  proper
sequence of events should have been to  request  a  special  review  of  the
additional medical information prior to discharging the  applicant,  perhaps
to the point of reaccomplishing a full  disability  evaluation.   Therefore,
the BCMR Medical Consultant is of the opinion that this case should  have  a
special    review    accomplished    to    consider    the    new    medical
conditions/information not considered in the disability evaluation process.

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

Chief, Special Actions/BCMR Advisories, AFPC/DPPD, reviewed the  application
and states the applicant has not submitted any material or documentation  to
show he was inappropriately rated or processed  under  disability  laws  and
policy at the  time  of  his  disability  discharge.   AFPC/DPPD  notes  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 a MEB when that board finds the member may not  be  qualified
for continued military service.  The decision to conduct a MEB  is  made  by
the medical treatment facility providing care to the member.

AFPC/DPPD states that additional  medical  conditions  (nephrolithiasis  and
neck pain), for which the applicant was  treated  prior  to  his  discharge,
were not included as part of the original MEB.  They believe  this  occurred
because the condition had  not  yet  been  diagnosed  (neck  pain),  or  the
condition was not considered serious enough to be ratable  at  the  time  of
the MEB.  Based on the preponderance  of  evidence,  and  after  a  thorough
review of the entire case file, the IPEB found  that  had  these  conditions
been identified and presented to the board in the form of a  special  review
prior to his  discharge,  they  would  have  acknowledged  their  existence;
however,  they  would  not  have  considered  them  unfitting,  ratable,  or
compensable under the provisions of military disability law and policy.   If
this special review would have occurred, it  would  not  have  affected  the
IPEB's original disposition recommendation, i.e., discharge  with  severance
pay with a 20% disability rating.  Therefore, they recommend denial  of  the
applicant's request.

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


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant’s counsel reviewed the Air Force evaluations and  states  that
the applicant’s neck condition was not,  and  could  not,  be  diagnosed  or
considered by the MEB because the injury occurred  after  the  date  of  the
PEB.  Had the PEB knew of the conditions, they would have  acknowledged  the
existence of them. In addition,  the  applicant  underwent  surgery  on  his
right foot only 11 days prior to his discharge, and after the PEB.  As  such
these matters were never addressed by any PEB.  The Air  Force  opines  that
had a PEB had knowledge of the conditions, they would  not  have  considered
them unfitting, ratable, or compensable under  the  provisions  of  military
disability law and policy.  Whatever a PEB would or would not have done,  or
how it might see how a special review would or should look at a  matter,  is
not relevant as to the major new diagnoses.  A  new  evaluation  and  a  new
board, as appropriate, was required  under  such  circumstances.   Moreover,
even after action by other than a PEB, the applicant still would have had  a
right to a formal hearing.

In further support of the appeal,  applicant  submits  a  statement  from  a
civilian foot and ankle specialist who states the following:

      a.    The treatment the applicant received at Sheppard AFB  after  his
injury was poor at best.  He should have had a MRI completed, remained  non-
weight bearing, had a full leg cast for six months,  and  received  physical
therapy.

      b.    It would be physically impossible for the applicant  to  perform
his duties based on his injuries.

      c.    Had the applicant received proper treatment, more  than  likely,
he would be fine today and would never need additional surgery.

      d.    There is no way anyone could review  the  medical  evidence  and
make the statement that such evidence  fails  to  prove  that  applicant  is
disabled from performing the duties of his position.

Counsel’s complete responses, with attachments, are attached at  Exhibits  H
through K.


THE BOARD CONCLUDES THAT:

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

2.    The application was timely filed.

3.    Sufficient relevant evidence has been  presented  to  demonstrate  the
existence  of  probable  error   or   injustice   to   warrant   applicant's
reevaluation through the disability system.  After  reviewing  the  evidence
of record, we are in agreement with the recommendation of the  BCMR  Medical
Consultant that a special review should be accomplished to consider the  new
medical conditions/information that was not  considered  in  the  disability
evaluation  process.   Therefore,  we  recommend  applicant's   records   be
corrected to the extent indicated below.  A final  decision  on  applicant's
request  to  be  permanently  retired  will  be  made  after  he  has   been
reevaluated based on the additional evidence as stated above.


THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air  Force  relating
to APPLICANT, be corrected  to  show  that  invitational  travel  orders  be
issued, by competent authority, to applicant, for the purpose of  undergoing
a physical examination and review by a Medical  Evaluation  Board  (MEB),  a
Physical Evaluation Board (PEB), and  a  Formal  Physical  Evaluation  Board
(FPEB), if necessary, to determine his current medical condition; and,  that
the results of the evaluation(s) be forwarded to the  Air  Force  Board  for
Correction of Military Records at the earliest practicable date so that  all
necessary and appropriate actions may be completed.


The following members of the Board considered this application in  Executive
Session on 12 October 1999, under the provisions of AFI 36-2603:

                  Panel Chair
                  Member
              Member

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

 Exhibit A.   DD Form 149, dated 30 Aug 98, w/atchs.
 Exhibit B.   Applicant's Master Personnel Records.
 Exhibit C.   Letter, BCMR Medical Consultant, dated 16 Oct 98.
 Exhibit D.   Letter, AFPC/DPPD, dated 25 Nov 98.
 Exhibit E.   Letter, AFBCMR, dated 14 Dec 98
 Exhibit F.   Letter, AFBCMR, dated 5 Jan 99.
 Exhibit G.   Letter, AFBCMR, dated 13 Jan 99.
 Exhibit H-K. Counsel’s Responses, dated 11 Feb 99,
              21 Aug 99, and 27 Dec 99.





                       Panel Chair


AFBCMR 98-02476




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 xxxxxx, xxxxxx, be corrected to show that invitational travel
orders be issued, by competent authority, to applicant, for the purpose of
undergoing a physical examination and review by a Medical Evaluation Board
(MEB), a Physical Evaluation Board (PEB), and a Formal Physical Evaluation
Board (FPEB), if necessary, to determine his current medical condition;
and, that the results of the evaluation(s) be forwarded to the Air Force
Board for Correction of Military Records at the earliest practicable date
so that all necessary and appropriate actions may be completed.




            Director
            Air Force Review Boards Agency