RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  99-00376
                 INDEX CODE:  108.04
                 COUNSEL:  DAV

                 HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His records  be  corrected  to  reflect  a  60%  permanent  disability
retirement vice a disability discharge.

APPLICANT CONTENDS THAT:

His disabilities were chronic at the time  of  his  release  from  the
Temporary Disability Retired List  (TDRL).   Medical  records  clearly
indicated the disabilities were increasing in severity at the time  of
his personal hearing.  Applicant states that his original  application
with the Department of Veterans Affairs (DVA) established a 60% rating
for  ankylosing  spondylitis  with  pulmonary  disorder   and   visual
problems.

In support of his appeal, applicant submits DVA rating decisions and a
letter from counsel, Disabled American Veterans (DAV), who states that
the applicant was discharged with severance pay with the inappropriate
Diagnostic Code (DC).

Applicant’s submission is attached at Exhibit A.

STATEMENT OF FACTS:

Applicant was involuntarily relieved from active duty on  25 September
1995 for physical disability under the provisions of AFI  36-3212  and
placed on the TDRL with a 40% compensable  disability  for  ankylosing
spondylitis, an inflammatory disease of the spine, with a  history  of
recurrent iritis and pulmonary restrictive component,  and  back  pain
associated  with  psychological  stress  reaction  affecting  physical
condition  with  definite  social  and   industrial   impairment,   VA
diagnostic code (d. c.) 5099-5002.

Applicant received a  medical  reevaluation  on  9  April  1997.   The
medical summary was reviewed by the Informal Physical Evaluation Board
(IPEB) which determined  that  applicant’s  condition,  while  stable,
remained  unfitting  for  military  service.   The  IPEB   recommended
permanent retirement with a 40% compensable  disability  rating.   The
applicant did not concur and requested a formal hearing.

The Formal PEB (FPEB) convened on 17 July 1997 and after reviewing all
the medical evidence recommended that  applicant  be  discharged  with
severance pay with a 20% compensable disability rating for  ankylosing
spondylitis with restrictive pulmonary component, VA d. c.  5299-5002.
The FPEB determined that applicant did not demonstrate any evidence of
complete bony fixation of the spine, therefore, use of the VA d. c. of
5286 was inappropriate at the time.  In addition, the FPEB  determined
that a significant  portion  of  applicant’s  prior  compensation  was
attributable to a prior mental health diagnosis  which  apparently  no
longer existed.  Applicant did not  concur  and  submitted  a  written
rebuttal which was  forwarded  to  the  Secretary  of  the  Air  Force
Personnel Council (SAFPC) for adjudication.  On 20 August 1997,  SAFPC
directed that applicant be removed from the TDRL and  discharged  with
severance pay with a 20% compensable disability rating for  ankylosing
spondylitis.  On 23 September 1997, applicant was honorably discharged
under the provisions of Title 10, United States  Code,  Section  1203,
physical disability with  entitlement  to  severance  pay.   Applicant
completed 14 years, 10 months and 11 days of  active  service  at  the
time of his release from active duty.

On 8 July  1996,  the  Department  of  Veterans  Affairs  awarded  the
applicant  a  combined  compensable  disability  rating  of  60%   for
ankylosing spondylitis with iritis and pulmonary restrictive component
(60%), VA d. c. 5286; hypertension (10%), VA d. c. 7101; and  allergic
rhinitis/sinusitis (0%), VA d. c. 6599-6501,  effective  26  September
1995.

Additional relevant facts pertaining to  this  application,  extracted
from the applicant's military records, are contained  in  the  letters
prepared by the appropriate Air Force office of primary responsibility
(OPR).  Accordingly, there is no need to recite these  facts  in  this
Record of Proceedings.

AIR FORCE EVALUATION:

The BCMR Medical Consultant states that all aspects of the applicant’s
case were thoroughly reviewed  in  the  disability  evaluation  system
(DES) processing that evolved through all levels of  review,  and  the
applicant’s separation with severance pay was completely justified  by
that review and the degree of impairment present at the time of  final
disposition.  The Military DES differs from the DVA system in  looking
at a particular point in time as far as a  member’s  duty  limitations
and cannot base  its  recommendations  on  the  potential  for  future
changes in those limitations.  The DVA, on the other hand,  is  tasked
to  look  at  a  former  service  member’s  service-connected  medical
problems over time and to determine how these  conditions  affect  the
person’s ability  to  secure  and  hold  gainful  employment  as  such
conditions may change from time to time.  In this particular case, the
Military Disability Evaluation System (MDES) feels strongly  that  the
DVA has used an inappropriate VASRD code (5286) to  assign  their  60%
rating.  This code addresses “complete bony  fixation”  of  the  spine
with compensation dependent on the degree of spinal angulation it  has
caused.   Clearly  the  medical  evidence  considered  in   the   MDES
evaluation failed to disclose significant ankylosis  (fusion)  of  the
spine, addressing, rather the inflammatory nature  of  his  condition.
While future changes may develop with this disease, it is  not  within
the purview of the MDES to anticipate such changes nor  to  compensate
an individual based on the potential for such  changes,  consideration
which the DVA has authority to render.

There is no evidence to  support  a  higher  rating  at  the  time  of
permanent  disposition.   Applicant’s  case  was  properly  evaluated,
appropriately  rated  and  received  full  consideration   under   the
provisions of AFI 36-3212.  The Medical Consultant is of  the  opinion
that no change in the records is warranted and the application  should
be denied.

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

The Chief, Special Actions/BCMR Advisories, USAF  Physical  Disability
Division, HQ AFPC/DPPD, states that a thorough review of the case file
revealed no errors or irregularities in the processing of  applicant’s
case  within  the  military  disability  evaluation  system.   He  was
appropriately found unfit for continued military service and  properly
rated under federal disability rating guidelines.  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.

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

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded  to  the  applicant
and counsel on 17 May 1999 for review and response within 30 days.  As
of this date, no response has been received by this office.

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  thoroughly
reviewing the documentation submitted with this application, it is the
opinion of the Board that the applicant was  afforded  all  rights  to
which he was  entitled  under  the  laws  which  govern  the  military
disability evaluation system.  After being on the TDRL for a period of
time, the applicant was reevaluated, whereupon he was found unfit  for
continued military service and was  rated  accordingly  based  on  his
condition at that time.  The Board notes that at the time of permanent
disposition, all indications were that his condition  had  stabilized,
albeit with a modest degree of impairment.  In this respect,  we  note
that he was capable of working 38-40 hours weekly with no  lost  time,
and was able to walk at  least  one  mile  several  times  weekly,  in
addition to doing stretching exercises.  Counsel’s contention that the
applicant was discharged with an incorrect  disability  code  is  duly
noted; however, the Air Force is  required  to  rate  disabilities  in
accordance with the VA Schedule for Rating Disabilities while  the  VA
operates under a totally separate system with  a  different  statutory
basis.  In this respect, we note that the VA rates  for  any  and  all
service connected conditions, to the degree they interfere with future
employability, without consideration of fitness; whereas the Air Force
rates a member’s disability at the time of separation.   While  it  is
the VA’s prerogative to assign  the  disability  code  they  have  for
applicant’s spinal condition, we find insufficient evidence  that  the
disability code  assigned  by  the  military  at  the  time  of  final
disposition is in error or unjust.  In view of the  foregoing  and  in
the  absence  of  evidence  to  the  contrary,  we  agree   with   the
recommendation of the offices  of  primary  responsibility  and  adopt
their rationale that the applicant has failed to sustain his burden of
establishing that he has suffered either an  error  or  an  injustice.
Accordingly, the applicant’s request 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 16 December 1999, under the provisions of AFI 36-
2603:

                 Ms. Martha Maust, Panel Chair
                 Ms. Rita Maldonado, Member
                 Ms. Nancy Drury, Member

The following documentary evidence was considered:

      Exhibit A. DD Form 149, dated 4 Feb 99, w/atchs.
      Exhibit B. Applicant's Master Personnel Records.
      Exhibit C. Letter, BCMR Medical Consultant, dated 17 Mar 99.
      Exhibit D. Letter, AFPC/DPPD, dated 23 Apr 99
      Exhibit E. Letter, AFBCMR, dated 17 May 99.




      MARTHA MAUST
      Panel Chair