RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  98-03487

      XXXXXXX    COUNSEL:  XXXXXXXX

      XXXXX HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

He  be  permanently  retired  by  reason  of  physical  disability,  with  a
disability rating of 40%.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The action by the Formal Physical Evaluation Board (FPEB) and the  Secretary
of the Air Force Personnel Council (SAFPC)  were  arbitrary  and  capricious
since they  ignored  the  medical  evidence,  failed  to  follow  Air  Force
instructions, and the  determinations  were  not  supported  by  substantial
evidence.

The  applicant’s  counsel  states  the  FPEB  reached  the  conclusion   the
applicant had a well healed fracture with an osseous  union  of  the  tibia;
however, this is incorrect.  The FPEB relied  on  the  Temporary  Disability
Retired List (TDRL) evaluation which was based solely  upon  x-rays  of  the
applicant’s lower extremity.  No  additional  tests  (i.e.,  CT  scan  or  a
Magnetic Resonance Imaging  (MRI)  were  completed.   This  is  particularly
significant since in 1994, the applicant was declared to have  healed  based
solely on x-rays when  an  MRI  revealed  otherwise.   Furthermore,  it  was
indicated the applicant had a posterior lateral bone  graft;  however,  this
was never done.  Counsel notes  the  applicant  received  a  total  combined
compensable rating from the Department of Veterans Affairs (DVA) of 30%  for
his  condition.   The  FPEB  members  ignored  the  relevant  and  competent
evidence before them  and  unreasonably  construed  a  significant  body  of
medical documents before them.

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

_________________________________________________________________

STATEMENT OF FACTS:

On 23 July 1986, the applicant entered extended active duty.

On 22 May 1990, the applicant suffered a closed midshaft fracture  involving
both the right tibia and fibula, while playing softball.

A Medical Evaluation Board (MEB) convened on 3  October  1995  and  referred
the applicant to an Informal Physical Evaluation Board (IPEB) based  on  the
diagnosis of chronic right tibia non-union, symptomatic.

An IPEB convened on 27 October 1995 and recommended the applicant be  placed
on the Temporary Disability Retired List (TDRL) with  a  compensable  rating
of 40%, based on the diagnosis of chronic fibrous  non-union,  right  tibia,
healed right  fibula  fracture;  status  post  25  May  1990  intermedullary
nailing of right tibia with proximal  and  distal  interlocking  screws  and
subsequent multiple surgeries and procedures.  The applicant concurred  with
the recommendation and findings of the IPEB.

On 9 January 1996, the applicant was relieved from active  duty  and  on  10
January 1996, he was placed on the TDRL, with a compensable  percentage  for
physical disability of 40%.

On 30 May 1996, the DVA awarded the applicant a  combined  service-connected
disability rating of 30%.  The DVA has upgraded  his  disability  rating  to
50%.

An IPEB convened on 3 September 1997 and found that  since  the  applicant’s
placement on the TDRL he had  progressed  to  good  healing  and  all  metal
hardware had been removed and recommended he be removed from the TDRL.   The
applicant did not concur with the recommedation and findings of the IPEB.

On 20 November 1997, a Formal Physical Evaluation Board (FPEB) convened  and
recommended the applicant be removed from the TDRL.  The applicant  did  not
concur with the findings and recommended disposition of the FPEB.

On 18 February 1998, the  Secretary  of  the  Air  Force  Personnel  Council
determined the applicant was fit for further military service  and  directed
that his name be removed from the TDRL.

The applicant’s name was  removed  from  the  TDRL  and  he  was  given  the
opportunity to return to active duty;  however,  he  chose  not  to  do  so.
Therefore, he was released from active duty on 6 April 1998.   He  completed
9 years, 5 months, and 17 days of active service.

_________________________________________________________________

AIR FORCE EVALUATION:

The  BCMR  Medical  Consultant  reviewed  the  application  and  states  the
applicant underwent multiple corrective  surgeries  and  suffered  for  some
time with poor healing of the fracture sites as is not  uncommon  with  such
injuries.  In spite of these problems, he was assigned to duty  in     where
he served from January 1993 to  May  1995.   However,  mobility  limitations
resulted in repeated profiling that led to his evaluation in the  disability
system.  The  evidence  of  record  indicates  the  applicant  was  fit  and
medically  qualified  for  continued   military   service   or   appropriate
separation and did not have any physical or  mental  condition  which  would
have warranted a permanent  medical  retirement.   All  of  the  information
considered in the decision to find the applicant fit  for  further  military
duty addressed both his continuing symptoms relating to the prior  injuries,
residual  limitations  which  were  found  to  be  not  unfitting,  and  the
applicant’s potential to perform his duties.  All considerations pointed  to
a status that did not render him unfit  for  duty.   Comments  such  as  his
ability to run  some  few  hundred  yards  before  noting  pain,  radiologic
evidence of a CT scan that showed a well healed tibial shaft except  for  an
area of  non-osseous  union  in  the  posterior  aspect  where  there  is  a
triangular  fragment  of  presumably  fibrous  union,  and  his  ability  to
participate in sports all pointed to minimal dysfunction  of  not  unfitting
nature.   The reason why the applicant could be declared  fit  for  duty  by
the Air Force and later granted a 40% service-connected  disability  by  the
DVA lies in understanding the differences between Title 10,  USC  and  Title
38, USC.  Title 10 USC is the  federal  statute  that  charges  the  service
secretaries with maintaining a fit and vital force.  For  an  individual  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 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, although  not  unfitting  for  military  duty,  may  later
progress in  severity  and  alter  the  individual’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 fit for military duty up to the  day  of
separation or retirement, and yet soon thereafter,  receive  a  compensation
rating from the DVA for a service-connected,  but  militarily  non-unfitting
condition.  Therefore, the Medical Consultant for the AFBCMR recommends  the
application be denied.

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

The  Chief,  Special  Actions/BCMR  Advisories,  AFPC/DPPD,   reviewed   the
application and  states  there  are  no  errors  or  irregularities  in  the
processing of the applicant’s case  that  would  require  a  change  to  his
military  records.   Furthermore,  it  should  be  noted  that   under   the
provisions of DoD Directive 1332.18, the military service will  utilize  the
VASRD to rate only those conditions which  rate  them  unfit  for  continued
military  service.   The  applicant  has  not  submitted  any  material   or
documentation to show he was inappropriately processed  under  the  military
disability evaluation system or that he was  unfit  for  continued  military
duty at the time of his removal from the TDRL.   Therefore,  they  recommend
denial of his 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  evaluation  and  states  the
applicant was originally placed on the TDRL for chronic fibrous on-union  of
his right tibia, and all of the  evidence  points  to  the  fact  the  right
tibial fracture is not yet completely healed.  As late as the  time  of  the
FPEB, the applicant was still suffering from chronic  fibrous  non-union  at
that fracture sight.  Counsel notes the DVA  has  upgraded  the  applicant’s
disability rating to 50%.  It is inconceivable that  an  individual  can  be
fit for military duty and at the same time be 50% disabled by  the  DVA.   A
preponderance of the  evidence  favors  the  applicant.   The  only  medical
evidence to support the FPEB findings is the statement from  one  Air  Force
physician.

Counsel’s complete response is attached at Exhibit F.

_________________________________________________________________

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.  Title 10, USC, Chapter 61 is  the
federal statute that charges the Service Secretaries with maintaining a  fit
and vital force.  For an individual 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.  The  Board
notes that the applicant was found to be fit  and  medically  qualified  for
continued  military  service  and  did  not  have  any  physical  or  mental
condition which would have warranted a permanent  medical  retirement  under
the provisions of AFI 36-3212.  The Board also notes that the applicant  was
given the opportunity to return to active duty but chose not to  do  so  and
was honorably discharged on 6 April 1998.  Therefore, we  are  in  agreement
with the detailed comments  of  the  BCMR  Medical  Consultant  and  in  the
absence of evidence to the contrary, we find no 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 issue(s) 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 9 November 1999, under the provisions of AFI 36-2603:

            Mr. Terry A. Yonkers, Panel Chair
            Mr. Lawrence R. Leehy, Member
            Ms. Leta L. O’Connor, Member

The following documentary evidence was considered:

      Exhibit A. DD Form 149, dated 4 Dec 98, w/atchs.
      Exhibit B. Applicant's Master Personnel Records.
      Exhibit C. Letter, BCMR Medical Consultant, dated 27 Jan 99.
      Exhibit D. Letter, AFPC/DPPD, dated 16 Mar 99.
      Exhibit E. Letter, AFBCMR, dated 29 Mar 99.
      Exhibit F. Applicant’s Response, dated 27 Apr 99.




                             Panel Chair