SECOND ADDENDUM TO
                       RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBERS:  94-10033
                                                  97-01337
            INDEX CODE:  108.00

            COUNSEL:  ROBERT E. DAVIGNON

            HEARING DESIRED:  YES


_________________________________________________________________

APPLICANT REQUESTS THAT:

By amendment, his compensable disability rating be increased  from  50
percent to 75 percent, effective 5 Dec 89.

_________________________________________________________________

RESUME OF THE CASE:

The relevant facts pertaining to this application are contained in the
Record  of  Proceedings,  dated  15  Feb  94  (see  AFBCMR  94-10033).
Accordingly, there is no need to recite these  facts  in  this  Second
Addendum to Record of Proceedings.

On 25 Jan 94,  the  Board  considered  an  appeal  pertaining  to  the
applicant, in which he requested that he be reinstated on active duty,
effective 4 Dec 89, and processed  to  retired  status  by  reason  of
physical disability; he be awarded all back pay and allowances from  4
Dec 89; all injury associated  medical  and  legal  expenses  incurred
after 25 Sep 88 by him and  his  family  be  reimbursed;  and,  he  be
afforded other relief deemed appropriate by the Board.  As a result of
the favorable consideration  of  his  appeal  by  the  Board,  it  was
directed that the applicant’s records be corrected to show that:   (a)
on 3 Dec 89, he was found unfit to perform the duties of  his  office,
rank, grade or rating by reason of physical disability, incurred while
entitled to receive basic pay, LOD-Yes; that the Axis I  diagnosis  in
his case was “Major Depression, industrial impairment - definite,” DVA
diagnostic code 9405,  rated  at  30  percent;  that  the  compensable
percentage was 30 percent; and  that  the  degree  of  impairment  was
permanent; and (b) he was not released from active duty on 4 Dec 89 by
reason of completion of his Air  Guard  Reserve  (AGR)  military  duty
tour, but on that date, he was released from  active  duty  under  the
provisions of AFR 35-4; and, was  permanently  retired  by  reason  of
physical disability in accordance with 10 USC 1201, effective 5 Dec 89
(see AFBCMR 94-10033, with Exhibits A through D).

On 1 Feb 96, the Board reconsidered the applicant’s appeal,  in  which
he requested that his compensable disability rating be increased  from
30 percent to 50 percent, effective 4 Dec 89.   As  a  result  of  the
favorable consideration of his appeal by the Board,  it  was  directed
that the applicant records be corrected to show that:  (a)  on  3  Dec
89, he was found unfit to perform the  duties  of  his  office,  rank,
grade or rating by  reason  of  physical  disability,  incurred  while
entitled to receive basic pay, LOD-Yes; that the Axis I  diagnosis  in
his case was “Major Depression, industrial impairment - definite,” DVA
diagnostic code 9405,  rated  at  50  percent;  that  the  compensable
percentage was 50 percent; and  that  the  degree  of  impairment  was
permanent; and (b) he was not released from active duty on 4 Dec 89 by
reason of completion of his Air  Guard  Reserve  (AGR)  military  duty
tour, but on that date, he was released from  active  duty  under  the
provisions of AFR 35-4; and, was  permanently  retired  by  reason  of
physical disability in accordance with 10 USC 1201, effective 5 Dec 89
(see Addendum AFBCMR 94-10033, with Exhibits E through F).

_________________________________________________________________

APPLICANT CONTENDS THAT:

He did not receive a Medical  Evaluation  Board  (MEB)  prior  to  his
discharge.  Had he been referred for disability processing, the degree
of impairment would have been assigned  a  compensable  rating  of  70
percent.

In support of his appeal, the applicant provided a personal statement,
and documentation from  the  Department  of  Veterans  Affairs  (DVA),
including a copy of his appeal  to  the  Board  of  Veterans’  Appeals
(Docket Number 94-31 776).

Applicant’s complete submission is at Exhibit G.

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AIR FORCE EVALUATION:

The Physical Disability Division, AFPC/DPPD, reviewed the  applicant’s
most recent submission and recommended denial.  DPPD  noted  that  the
applicant was now applying for his third correction  of  his  military
record based upon the DVA’s “Notice of Disagreement” wherein the Board
of Veterans’ Appeals concluded  that  the  preponderance  of  evidence
supported the assignment of a 70 percent rating  for  the  applicant’s
service-connected disability.  According to DPPD, the assignment of  a
50  percent  rating  was  an  appropriate  rating  for  the   military
disability system to have assigned the applicant.  That  rating  would
have been assigned had the member  undergone  an  MEB  and  subsequent
Physical Evaluation Board (PEB), which, as  previously  determined  in
two other AFBCMR cases submitted by the applicant, would have resulted
in permanent retirement by reason of physical disability.

DPPD  indicated  that  the  reason  why  an  applicant  could  receive
noticeably different disability ratings from the Air Force and the DVA
lies in understanding of the differences between Title  10,  USC,  and
Title 38, USC  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  unfit,  there  must  be  a  medical
condition so severe that it prevents performance of work  commensurate
with rank and experience.  Once this  determination  is  made,  namely
that the individual is unfit, the degree of disability 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,
alter the individual’s lifestyle and future employability.  With  this
in mind, Title 38, USC, which governs the VA compensation system,  was
written to allow awarding compensation for  conditions  that  are  not
unfitting for military service.  This is the reason why an  individual
can be found fit for military duty and later  receive  a  compensation
rating from the VA for a service-connected, non-unfitting condition.

In DPPD’s view, the  applicant  has  not  submitted  any  material  or
documentation to show that he was inappropriately rated  by  the  1996
AFBCMR decision.  After again reviewing the  AFBCMR  case  file,  they
found no evidence of any injustice or error that would  merit  further
corrections to the military record as it pertains to the USAF Physical
Disability Evaluation System.

A complete copy of the DPPD evaluation is at Exhibit H.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant indicated that, normally, the disability process starts when
a member cannot do his/her assigned job because of a medical defect or
condition,  and  it  is  unlikely  that  further  hospitalization   or
treatment will result in the return to duty within a reasonable  time,
usually one year.  However, this has been an atypical  case.   It  has
taken over nine years for the medical particulars to  emerge  in  this
matter.  The facts now before the Board clearly establish that at  the
time of his discharge from active duty, he was  100  percent  disabled
and remained so for the  following  two  years.   If  proper  military
medical authorities had had the opportunity  to  evaluate  him  during
that time period (12/5/89 to 12/31/91), surely they would have  agreed
with the medical professionals that had  provided  him  psychotherapy.
The evidence of medical experts who are personally  familiar  with  an
individual whose condition is under inquiry for disability  retirement
purposes, and who actually treated him, is far preferable to  evidence
of doctors who have not treated or examined him  and  whose  testimony
was based on their incomplete knowledge of  the  individual’s  medical
history.  At the time of his separation, he was 100 percent  disabled.
Accordingly,  the  Board  should  assign  a  rating  and   compensable
percentage of 75 percent, effective 5 Dec 89.

Applicant’s complete response and additional documentary evidence  are
attached at Exhibit J.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.    In earlier findings,  we  determined  that  sufficient  evidence
existed to support a finding of unfitness, and were persuaded that the
applicant’s condition at the time of his  released  from  active  duty
under AFR 35-4 warranted a  compensable  rating  of  50 percent.   The
applicant is now requesting that his records be corrected to show that
he was awarded a 75 percent rating.  We have reviewed his most  recent
submission.  However, we agree with the opinion and recommendation  of
the Air  Force  office  of  primary  responsibility  and  adopt  their
rationale as the basis for our conclusion that the applicant  has  not
been the victim of an error or injustice.  Therefore, in  the  absence
of evidence which shows to our satisfaction that the applicant was not
fairly  and  appropriately  rated,  the  applicant’s  request  is  not
favorably considered.

2.  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 2 Mar 99, under the provisions of AFI 36-2603:

      Mr. Michael P. Higgins, Panel Chair
      Mr. Patrick R. Wheeler, Member
      Mr. Philip Sheuerman, Member

The following additional documentary evidence was considered:

    Exhibit G.  DD Form 149, dated 23 Apr 97, w/atchs.
    Exhibit H.  Letter, AFPC/DPPD, dated 18 Sep 97.
    Exhibit I.  Letter, SAF/MIBR, dated 6 Oct 97.
    Exhibit J.  Letter, applicant, dated 15 Oct 97, w/atchs.




                                   MICHAEL P. HIGGINS
                                   Panel Chair