RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  97-02580
            INDEX CODE:  108.00

            COUNSEL:  None

            HEARING DESIRED:  No


_________________________________________________________________

APPLICANT REQUESTS THAT:

His disability discharge from active duty in Sep 89 be set aside and
that he receive a disability retirement.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Inadequate medical care caused him to  accept  a  medical  discharge
with severance pay.  When his knee was fixed, he could  have  stayed
until retirement.

Applicant’s complete submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant’s Total Active Federal Military Service Date  (TAFMSD)
was 13 Oct 72.

On  , a Medical Evaluation Board (MEB) was initially convened at   ,
for a left knee injury initially received  by  the  applicant  while
playing high school football  in  1971.   Although  the  injury  was
considered to have existed prior to service  (EPTS),  the  condition
was considered to be service aggravated.  Upon review of the MEB  by
the Air Force Military Personnel Center (AFMPC) (now the  Air  Force
Personnel Center (AFPC)) Medical Standards Branch, the applicant was
returned to duty without the case being  referred  to  the  Informal
Physical Evaluation Board (IPEB).  (Applicant’s records reflect that
he was initially rejected from the Army based on his knee  problems.
AFPC indicated that to enlist in the Air Force,  he  had  to  supply
supporting evidence on the status of his knee).



Applicant had been in the Air Force Weight Management Program  (WMP)
since 21 Aug 85.  He was 72 ¾ inches tall and his maximum  allowable
weight (MAW) was 209 ½ pounds.  His MAW was increased to 223  pounds
with a commander approved nomogram on 1 Sep 87.   Applicant  weighed
244 pounds when he was placed on the WMP in 1985; on 28 Feb 89,  his
weight was 256 ¼ pounds.

On 22 Nov 85, applicant received a Letter  of  Reprimand  (LOR)  for
unsatisfactory progress in the WMP.   On  or  about  22 Nov  85,  he
weighed in at 248 pounds.  From 23 Oct to 22 Nov 85,  he  gained  10
pounds and was required to lose 5 pounds during this  period.   This
was a total of 39 ½ pounds in excess of his MAW of 209 ½ pounds.  He
made unsatisfactory progress and was failing to stay within the  Air
Force standards.  Applicant  acknowledged  receipt  of  the  LOR  on
22 Nov 85.  He did not desire to comment on the allegation contained
in the LOR and did not attach statements or documents.

On 3 Jan 86, applicant received an LOR for a  second  unsatisfactory
period in the WMP in 60 days.  On 23 Dec 85, he weighed  in  at  247
pounds.  His previous weight check of 22 Nov 85 revealed his  weight
to be 248 pounds.  In one month’s time, he  lost  1  pound  but  was
required by regulation  to  lose  5  pounds  in  this  time  period.
Applicant acknowledged receipt of the LOR on 3 Jan 86.  He  did  not
desire to comment on the allegation contained in the LOR and did not
attach statements or documents.

On 3 Jan 86, applicant was placed on the Control Roster for  failure
to make satisfactory progress on the  WMP.   Applicant  acknowledged
receipt and understanding about the  UIF/Control  Roster  action  on
7 Jan 86.  He did not attach a  statement  or  other  documents  for
consideration in the commander’s final decision on this matter.

On 22 Apr 86, applicant received an LOR for unsatisfactory  progress
in the WMP.  On or about 11 Mar 86, he  weighed  in  at  247  pounds
which was a weight gain of 5 pounds in excess of his previous weight
check of 242 pounds.  Applicant acknowledged receipt of the  LOR  on
22 Apr 86.  He did not desire to comment on the allegation contained
in  the  LOR  and  did  not  attach  statements  or  documents.   An
Unfavorable Information File (UIF) was established as  a  result  of
applicant’s failure to make satisfactory progress in the WMP.

On 22 Apr 86, applicant received an LOR for unsatisfactory  progress
in the WMP.  On 17 Apr 86, he weighed in at 256 ½ pounds which was a
weight gain of 8 ½ pounds in excess of his previous weight check  of
247 pounds.  He weighed more than what he did when he was  initially
placed on the WMP at 249 pounds in Aug 85.   Applicant  acknowledged
receipt of the LOR on 22 Apr 86.  He did not desire  to  comment  on
the allegation contained in the LOR and did not attach statements or
documents.  An UIF  was  established  as  a  result  of  applicant’s
failure to make satisfactory progress in the WMP.

On 12 Aug 86, applicant received an  LOR  for  failure  to  maintain
standards as outlined in AFR  35-11  by  his  failure  to  lose  the
required 5 pounds for his monthly weigh-in.  In addition, he  gained
13 pounds since his last weigh-in.  Applicant  acknowledged  receipt
and understanding on 13 Aug 86.

On 13 Aug 86, applicant was placed on the  Control  Roster  for  his
continued  failure  to  lose  the  required  5  pounds  a  month  in
accordance with  AFR  35-11.   Applicant  acknowledged  receipt  and
understanding about the UIF/Control Roster action on 13 Aug 86.   He
attached information he wished  considered  before  making  a  final
decision.

On 4 Nov 87, applicant received  an  LOR  for  failure  to  maintain
standards as outlined in AFR  35-11  by  his  failure  to  lose  the
required 5 pounds for his monthly weigh-in.  In addition, he  gained
¾ pound since his last weigh-in.  Applicant acknowledged receipt and
understanding on 4 Nov 87.  An UIF was established as  a  result  of
applicant’s failure  to  make  satisfactory  progress  in  the  WMP.
Applicant acknowledged  receipt  and  understanding  about  the  UIF
action on 4 Nov 87.  He did not attach information he wished  to  be
considered before making a final decision.

On 9 Dec 87, applicant received  an  LOR  for  failure  to  maintain
standards as outlined in AFR  35-11  by  his  failure  to  lose  the
required 5 pounds for his monthly weigh-in.  In addition, he  gained
22 pounds since his last weigh-in.  Applicant  acknowledged  receipt
and understanding on 9 Dec 87.

On 1 Nov 88, applicant received an LOR for  unsatisfactory  progress
in the WMP.  On 14 Oct 88, he weighed 264 ½ pounds, an  increase  of
5 ¼ pounds from the previous weigh-in of 259 ¼ pounds.

On 13 Dec 88, applicant was notified that the commander intended  to
recommend the applicant be demoted from the grade of staff  sergeant
to the grade of sergeant.  The specific  reason  for  this  demotion
action was that applicant failed to  maintain  weight  standards  in
accordance with AFR 35-11:

            a.   On or  about  22 Nov  85,  he  failed  to  progress
satisfactorily in the Air Force WMP by gaining 10 pounds instead  of
losing the 5 pounds required.

            b.   On or  about  23 Dec  85,  he  failed  to  progress
satisfactorily in the WMP by losing only 1 pound instead  of  losing
the 5 pounds required.

            c.   On or  about  11 Mar  86,  he  failed  to  progress
satisfactorily in the WMP by gaining 5 pounds instead of losing  the
5 pounds required.

            d.   On or  about  17 Apr  86,  he  failed  to  progress
satisfactorily in the WMP by gaining 9 ½ pounds  instead  of  losing
the 5 pounds required.

            e.   On or  about  11 Aug  86,  he  failed  to  progress
satisfactorily in the WMP by gaining 13 pounds instead of losing the
5 pounds required.

            f.   On or  about  23 Feb  87,  he  failed  to  progress
satisfactorily in the WMP by gaining 8 pounds instead of losing  the
5 pounds required.

            g.   On or  about  23 Apr  87,  he  failed  to  progress
satisfactorily in the WMP by not losing any weight instead of losing
the 5 pounds required.

            h.   On or  about  26 May  87,  he  failed  to  progress
satisfactorily in the WMP by  losing  only  2 ½  pounds  instead  of
losing the 5 pounds required.

            i.   On or  about  25 Jun  87,  he  failed  to  progress
satisfactorily in the WMP by  losing  only  2 ½  pounds  instead  of
losing the 5 pounds required.

            j.   On or  about  31 Aug  87,  he  failed  to  progress
satisfactorily in the WMP by gaining 29 pounds instead of losing the
5 pounds required.

            k.   On or  about  30 Oct  87,  he  failed  to  progress
satisfactorily in the WMP by gaining ¾ pounds instead of losing  the
5 pounds required.

            l.   On  or  about  8 Dec  87,  he  failed  to  progress
satisfactorily in the WMP by gaining 22 pounds instead of losing the
5 pounds required.

            m.   On  or  about  8 Sep  88,  he  failed  to  progress
satisfactorily in the WMP by gaining 28 ¼ pounds over  a  four-month
period instead of losing the 5 pounds required per month.

            n.   On or  about  14 Oct  88,  he  failed  to  progress
satisfactorily in the WMP by gaining 5 ¼ pounds  instead  of  losing
the 5 pounds required.

On 4 Jan 89, the applicant  nonconcurred  with  the  above  demotion
action.

On 13 Jan 89, after applicant’s  nonconcurrence  with  the  proposed
demotion and after applicant presented matters on  his  own  behalf,
the commander firmly believed the applicant should be demoted to the
grade of  sergeant.   The  commander  stated  that  when  he  became
squadron section commander about one year ago, there was  an  action
in progress to demote the applicant which had been initiated by  the
prior commander.  He further  stated  that  based  on  a  subsequent
weight loss, he withdrew the demotion action but the  weight  losses
were  only  temporary.   Therefore,   despite   applicant’s   recent
satisfactory  performance  on  the  WMP,  he  had   not   considered
withdrawing the demotion action.  Based on applicant’s  long  record
of unsatisfactory performance on the program and the poor example he
set for others, the commander firmly believed the  applicant  should
be demoted.

On 13 Jan 89, the Staff Judge Advocate (SJA) provided a legal of the
demotion recommendation and  found  it  legally  sufficient  and  in
substantial compliance with AFR 39-30.  The SJA indicated  that  the
commander’s recommendation to demote the applicant was based  on  an
extensive  record  of  repeated  failures  in  the   WMP   and   the
recommendation was supported by a preponderance of the evidence  and
warranted the applicant’s demotion.  The SJA  recommended  that  the
commander direct that the applicant  be  demoted  to  the  grade  of
sergeant.

On 30 Jan 89, the commander,    Air Refueling Wing,      ,  received
the proposed demotion case against the applicant and agreed with the
applicant’s  commander  that  demotion   action   was   appropriate,
effective 30 Jan 89.

On 1 Feb 89, per Special Order P-16, applicant was demoted from  the
permanent grade of staff sergeant to the permanent grade of sergeant
with a date of rank (DOR) and effective date of 30 Jan 89.

On 2 Feb 89, the applicant was notified that the demotion  authority
approved his demotion to the grade of sergeant.

On 6 Feb 89, applicant acknowledged receipt of the  demotion  action
and elected to appeal the demotion action.

On 23 Feb 89, the SJA provided a legal review regarding  applicant’s
administrative demotion appeal and recommended that the  applicant’s
appeal from his administrative demotion  from  the  grade  of  staff
sergeant to the grade of sergeant be disapproved.

On 27 Feb 89, the demotion appeal submitted  by  the  applicant  was
disapproved by the commander.

On 9 Mar 89, applicant received a referral Airman Performance Report
(APR) (8) for  failure  to  maintain  Air  Force  weight  standards.
Applicant acknowledged receipt of the referral report  but  did  not
desire to make comments about the referral report.

On 21 Mar  89,  the  commander  initiated  administrative  discharge
proceedings against the applicant for  failure  to  meet  Air  Force
weight standards.

On 17 May 89, a Report of Medical Examination reflected a summary of
defects and diagnoses of:   Mechanical  low  back  pain;  seborrheic
dermatitis (skin); scar  on  the  left  knee;  and,  high  frequency
hearing loss.  His qualification for worldwide duty  was  listed  as
questionable.

On 9 Jun 89, applicant  was  notified  by  the  commander  that  his
noncommissioned officer (NCO) status  was  vacated.   The  commander
indicated  that,   after   numerous   counselings   and   documented
administrative actions, including demotion, applicant  continued  to
progress unsatisfactorily on the WMP which was evident by  his  last
weight check, 5 Jun 89,  in  which  he  gained  seven  pounds.   The
commander indicated that applicant was not demonstrating appropriate
NCO responsibilities by his repeated  failure  to  comply  with  the
requirements of the Air Force WMP.

On 9 Jun 89,  applicant  acknowledged  receipt  of  the  commander’s
notification of the denial/vacation of his appointment to NCO status
and his understanding of the  opportunity  to  appeal  the  decision
within 10 days from the date he rendered his intent (13 Jun 89).  On
13 Jun 89, applicant indicated  that  he  intended  to  appeal  this
decision.   However,  on   14 Jun   89,   applicant’s   reenlistment
eligibility (RE) status code was changed to 2Y (First-term,  second-
term or career airman whose  appointment  to  NCO  status  has  been
denied or vacated).  Applicant’s appeal was not received  by  23 Jun
89 as required by AFR 35-16, Volume 1.

On 19 Jun 89, a second MEB was conducted at March  AFB,  California,
for applicant’s chronic mechanical low back  pain  and  degenerative
joint disease, left knee.  After consideration of clinical  records,
laboratory findings, and physical examination, the board established
the following diagnosis:

          1. Chronic mechanical low back pain;

          2. Degenerative joint disease, left knee; and,

          3. Obesity

On 28 Jun 89, applicant agreed with the findings and recommendations
of the MEB.  The MEB report was forwarded to the IPEB.

On 18 Jul 89, the IPEB  found  the  applicant  unfit  for  continued
military  service  and  recommended  that  he  be  discharged   with
severance pay with a 10% disability rating.   The  IPEB  established
the following diagnosis:

          1.  Chronic  mechanical  low  back  pain;  incurred   while
             entitled to receive basic pay and was  in  the  line  of
             duty;

          2. Degenerative joint disease left knee, EPTS with  service
             aggravation; incurred while entitled  to  receive  basic
             pay and was in the line of duty; and,

          3. Other Diagnosis considered but not ratable:  Obesity.

On 25 Jul 89, applicant agreed with  the  findings  and  recommended
disposition of the PEB.

Because  of  ongoing  nondisability  administrative   actions,   the
applicant’s case files were forwarded to the Secretary  of  the  Air
Force Personnel Council for adjudication.

On 17 Aug 89, following a grade determination within the meaning  of
Section 1212, Title 10, United States Code  (USC),  the  applicant’s
administrative demotion was set aside by action of the Secretary  of
the Air Force Personnel Board.  The Secretary of the Air Force found
that applicant served satisfactorily in the higher  grade  of  staff
sergeant.

On 21 Aug 89, officials within the Office of the  Secretary  of  the
Air Force approved the recommendation of the Physical Review Council
(PRC)  and  determined  that  applicant  was  physically  unfit  for
continued military service and directed that he be  discharged  with
severance pay under the provisions of Section 1203, Title 10, USC.

On 25 Sep 89, the applicant was discharged under the  provisions  of
AFR 35-4 (Disability Entitled to Severance Pay)  with  an  honorable
characterization of service.  He was  credited  with  16  years,  11
months and 13 days of active service.

On 21 Apr 99, the  Department  of  Veterans  Affairs  (DVA)  made  a
decision of applicant’s claim for a total and permanent  status  for
his service-connected  disabilities.   The  DVA  did  not  find  any
evidence which would suggest a change  in  the  evaluation  for  the
disability listed below:

      His traumatic arthritis, lumbosacral spine  with  degenerative
disc disease, post laminectomy and disc excision, L4-5 remained  60%
disabling.  However, this condition was considered to be permanently
60%.   This  disability  was  the  primary  reason  for  applicant’s
unemployability rating which had been  in  effect  since  3 Jul  97.
Applicant’s  overall  or  combined  evaluation  remained   at   70%.
However, he continued to be  paid  at  the  100%  rate  due  to  his
unemployability.

_________________________________________________________________

AIR FORCE EVALUATION:

The BCMR Medical Consultant reviewed  this  application  and  stated
that  the  records  indicate  the  applicant  was  found  unfit  and
separated because of low back pain, 10% ratable under the DVA  VASRD
Code 5295, and degenerative joint disease of the  left  knee,  VASRD
Code 5003, 10% ratable with a 10% deduction for it being a condition
that EPTS.  Interestingly, the applicant had been rejected for  duty
with the Army because of his history of having had a football injury
of the knee involving the medial meniscus and the medial  collateral
ligament surgically  repaired  in  1971.   In  spite  of  this,  the
applicant had enlisted in the Air Force in 1972.  Not  surprisingly,
he continued to have difficulty with the knee with pain and periodic
swelling which necessitated a  career  field  change  from  security
police work to an administrative position.  In Jan 78, he met an MEB
that recommended his return to duty.  His low  back  pain  dates  to
1979 when he sustained a back strain and he  was  seen  periodically
for mechanical pain throughout the  remainder  of  his  active  duty
years.  Because of his physical problems, the dual-action  discharge
review  was  initiated  and  he  was  separated  for  the   physical
disability rather than  the  administrative  reason.   Findings  and
recommendations of the PEB were sustained at all  levels  of  review
and  approved  with  concurrence  of  the  applicant  and  are  well
supported by the evidence of record.

The Medical Consultant further stated that there is no  evidence  to
support a higher rating  at  the  time  of  applicant’s  separation.
While he claims that his knee problem was improperly  evaluated  and
treated  while  in  the  military,  evidence  of  record   indicates
otherwise.  The narrative summary prepared for his MEB processing in
1978 indicated no further  problems  with  the  knee  since  he  was
switched to his administrative position and a letter from his  post-
service  treating  physician   states   that   the   applicant   was
asymptomatic up to the time of an industrial injury suffered in  Jan
91, some 15 months after  his  discharge.   His  case  was  properly
evaluated, appropriately  rated,  and  received  full  consideration
under the provisions of AFR 35-4.  Action and  disposition  in  this
case are proper and reflect compliance  with  Air  Force  directives
which implement the law.  The Medical Consultant is of  the  opinion
that no change in the  records  is  warranted  and  the  application
should be denied.

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

The Chief, Physical Disability Division,  AFPC/DPPD,  also  reviewed
this application and indicated that  the  purpose  of  the  military
disability evaluation 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 an MEB when that board finds
that the member may not be qualified for continued military service.
 The decision to conduct an MEB is made  by  the  medical  treatment
facility providing care to the member.

A  thorough  review  of  the  case  file  revealed  no   errors   or
irregularities in the processing of the applicant’s case within  the
disability evaluation system.  He was appropriately found unfit  for
continued military service, properly rated under federal  disability
rating guidelines and afforded all rights to which he  was  entitled
under disability law and departmental policy.  The  medical  aspects
of this case are fully explained by the Medical Consultant and  DPPD
agrees with his advisory.  DPPD recommends denial of the applicant’s
request.  He has not submitted any material or documentation to show
that he was inappropriately rated or processed under disability laws
and policy at the time of his disability discharge.

A complete copy of their evaluation is attached at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to  applicant  on
12 Oct 98 for review and response.  However, on 28 Dec 98, applicant
withdrew his application until he could gather documentation from  a
hard to locate civilian doctor.

On 20 Dec 99, applicant provided additional information  and  wishes
to continue with his application.

Applicant’s response and additional  documentation  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 not timely filed; however, it  is  in  the
interest of justice to excuse the failure to timely file.

3.     Insufficient  relevant  evidence  has   been   presented   to
demonstrate the existence of probable error or injustice.   After  a
thorough  review  of  the  evidence  of   record   and   applicant’s
submission, we are not persuaded that his disability discharge  from
active duty in Sep 89 should be set aside  and  that  he  receive  a
disability retirement.  His contentions are duly noted; however,  we
do not find these  assertions, in and  by  themselves,  sufficiently
persuasive to override the rationale provided by the Air Force.   We
therefore agree with the recommendations of the Air Force and  adopt
the rationale expressed as the  basis  for  our  decision  that  the
applicant has failed to sustain his  burden  that  he  has  suffered
either an error or an injustice.  Therefore, we find  no  compelling
basis to recommend granting the relief sought.

_________________________________________________________________

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 27 April 2000,  under  the  provisions  of  Air
Force Instruction 36-2603:

                  Mr. Thomas S. Markiewicz, Panel Chair
                  Mr. Patrick R. Wheeler, Member
                  Mr. Jackson A. Hauslein, Member

The following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 19 Aug 97, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, BCMR Medical Consultant, dated 27 Aug
                   98.
     Exhibit D.  Letter, AFPC/DPPD, dated 28 Sep 98.
     Exhibit E.  Letter, AFBCMR, dated 12 Oct 98.
     Exhibit F.  Letter fr applicant, dated 20 Dec 99, w/atchs.




                                   THOMAS S. MARKIEWICZ
                                   Panel Chair