RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  99-00953
            INDEX CODE:  108.02, 108.10

            COUNSEL:  Mr. Gary R. Myers

      HEARING DESIRED:  YES

APPLICANT REQUESTS THAT:

His involuntary disability discharge with a 20% disability rating be  set
aside, and he be granted early retirement as an exception to policy, with
back retirement pay from 30 Sep 96 to present.  In the  alternative,  his
records  be  corrected  to  show  he  was  retired  because  of  physical
disability with a compensable rating of 30% effective 8 Jul 97.

APPLICANT CONTENDS THAT:

He was treated inequitably by the Air Force and this Board should correct
the inequity.  He was an excellent performer as evidenced by his enlisted
performance reports; however, his weight was a constant problem  for  him
and because of his weight issues, he remained a Staff Sergeant (SSgt) for
nearly 10 years.

An adverse record was built on him after his identification as an  airman
outside of weight standards.  He claims that on 8  Aug  96,  the  adverse
record directly resulted in a Notice of Demotion Action.  On or about the
same date, he was identified for separation  action  under  AFI  36-3208,
Administrative Separation of Airmen.  Demotion action to SrA was effected
on 20 Feb 97, however, less than a month later,  acknowledging  that  his
weight problem had a medical origin, the commander revoked the demotion.

He was medically diagnosed with (bilateral)  Grade  I  Bilchondromalacia,
and from 7 Jul 94 to  his  separation,  he  was  unable  to  exercise  or
properly perform the duties of his Air Force Specialty Code  (AFSC).   In
this regard, he received a further profile and a T-4 profile  on  27  Dec
96.

In Aug 96, a medical evaluation board was initiated  but  was  withdrawn,
however, an MEB was again initiated and resulted in the assignment  of  a
22%  compensable  rating  (rounded  to  20%)  for  the  above   mentioned
diagnosis.

The Temporary Early Retirement Authority (TERA) was used until 30 Sep 96.
 At that time, he had in excess of 15 years  of  service.   On  equitable
grounds, his records should be corrected to show he was retired under the
TERA on 30 Sep 96.

In support of his application, the applicant provided a brief by  counsel
expanding on the foregoing contentions; his performance records;  records
associated with his participation in the Weight Management Program  (WMP)
and the demotion action; and extracts  from  his  medical  records.   The
applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

At the time of his discharge on 8 Jul 97, the applicant  was  serving  in
the grade of staff sergeant and was credited with 16 years, 11 months and
25 days of active duty service.  Subsequent to his promotion to the grade
of staff sergeant, he received ten Enlisted Performance  Reports  (EPRs),
in which the overall evaluations were 9, 9, 4 (lst EPR), 4, 4, 5,  5,  5,
4, and 3.

Documents provided by the  applicant  reveal  that  on  28  Jun  95,  the
applicant was entered into Phase I of the WMP.  His entry weight was  207
pounds/31% body fat.  His maximum allowable  weight  was  171.5/24%  body
fat.  Based on unsatisfactory weigh-ins, the applicant received a  Letter
of Counseling on 1 Dec 95 and Letters of Reprimand on 2 Dec 96 and 8  Apr
96.  He was denied the Good Conduct Medal for the period 15 Jul 92 to  10
Jul 95.  On 8 Aug 96, his commander notified him of an  intent  recommend
his demotion based on reported unsatisfactory progress in the WMP.   Upon
completion of the processing of this recommendation,  the  applicant  was
demoted to the grade of senior airman on 21 Feb 97.  By  orders  dated  3
Apr 97, the demotion was declared null and void, and was revoked.

In the meantime, on 31 Jan 97, the applicant’s case was presented  to  an
MEB.  The board rendered a diagnosis of “Bilateral Chondromalacia.”   The
MEB found the approximate date of origin for the condition  was  Jul  95,
that the condition was incurred while the applicant was entitled to basic
pay and that the condition had not existed prior to service.   The  board
recommended that the applicant’s  case  be  referred  to  an  Information
Physical Evaluation Board (IPEB).  The hospital  commander  approved  the
board’s recommendation.  The applicant was informed of the MEB’s findings
and recommendations on 3 Feb 97 and elected not to  submit  a  Letter  of
Exception.

On 12 Mar 97, the applicant’s  case  was  considered  by  an  IPEB.   His
diagnosis was Category I - Unfitting conditions which are compensable and
ratable:  Bilateral chondromalacia.  The board found  the  condition  was
incurred while the applicant was entitled to basic pay and in the line of
duty.  The board assigned a compensable rating of 20%  with  a  bilateral
factor of 2.0%,  resulting  in  a  combined  rating  of  22%.   The  IPEB
recommended  the  applicant  be  discharged  with  severance  pay  and  a
compensable percentage of 20.

On 17 Mar 97, the applicant signed an Air Force Form 1180  agreeing  with
the findings and recommended disposition of the PEB.

On 15 Apr 97, the Secretary of the Air Force directed that the  applicant
be discharged and receive severance pay with a disability  rating  of  20
percent, under the provisions of Title 10, United  States  Code,  Section
1203.

On 8  Jul  97,  the  applicant  was  discharged  by  reason  of  physical
disability with entitlement to disability severance pay ($41,551.20).

In a rating decision dated 7 Feb 98, the Department of  Veterans  Affairs
(DVA) granted the applicant service connection and zero % ratings for the
conditions “Chondromalacia patella, left  knee,  with  mild  degenerative
joint disease confirmed by x-ray, no  limitation  of  motion  or  painful
motion;” “Chondromalacia Patella, right knee, with  degenerative  disease
on prior x-ray, without limitation of motion or painful  motion;”  and  “
right index  finger,  status  post  dislocation,  with  stiffness.”   The
applicant thereafter appealed requesting increased  evaluations  for  the
above service-connected conditions and also requested  service-connection
for bilateral hearing loss, viral meningitis, and carpal tunnel  syndrome
of left hand.  On 10 Feb 00, the Board of Veterans Appeals  remanded  the
applicant’s  case  to  the  DVA  Regional  Office  for  a  VA  orthopedic
examination by a qualified physician in order to fully assess the current
nature of the degree of severity of the applicant’s knee conditions.   No
further information relating to the applicant’s DVA claim is available at
this time.

AIR FORCE EVALUATION:

The Chief Medical  Consultant,  AFBCMR,  reviewed  this  application  and
conducted a comprehensive  review  of  records.   The  records  show  the
applicant had begun to have knee pain in 1995 associated with his work as
a mechanic on F-16s.  Records show that he  (applicant)  had  sought  MEB
processing and was initially believed to be ineligible.  Entwined in this
process was a worsening problem with weight  management  dating  back  to
1991, when his performance reports began to reflect his weight problem.

The BCMR Medical Consultant notes the letters of support obtained by  the
applicant, from co-workers and others, in late 1986 and early 1997.   The
letters show the applicant was able to continue participating in squadron
softball and  youth  coaching  activities  during  the  same  period  the
applicant claimed he was incapable of exercising properly  to  help  with
weight control.  Furthermore, the  narrative  summary  prepared  for  his
medical board noted the applicant was able to  participate  in  low-angle
stair stepping, swimming, and stationary  bicycle  riding,  but  that  he
(applicant) “admit(s), however, that he has not vigorously pursued  these
exercises.”

The BCMR Medical Consultant points out the  PEB  was  generous  in  their
assessment of a 20% disability given the facts  of  record.  The  Medical
Consultant is of the opinion no change in the records  is  warranted  and
the application should be denied.

This evaluation is at Exhibit C.

The  Chief,  Special  Actions,  USAF  Physical  Disability  Division,  HQ
AFPC/DPPD, recommended denial of applicant’s request after examining  the
application, and supporting documents.  It was noted that  the  applicant
did not offer  any  material  or  documentation  to  demonstrate  he  was
inappropriately processed or rated under the disability evaluation system
at the time of his disability discharge.  This evaluation is  at  Exhibit
D.

The Chief, Retirements Branch, HQ AFPC/DPPRR recommended  denial  of  the
applicant’s request.  DPPRR references Section  8914,  Title  10,  United
States Code.  The code provides that an  enlisted  member  must  have  20
years of total active federal military service (TAFMS) to be eligible  to
voluntarily retire.  DPPRR notes the applicant did not have twenty  years
of service at the time of discharge as substantiated by his records.   In
addition, the applicant  requests  an  FY96  Temporary  Early  Retirement
Authority (TERA) effective 30 Sep 96.  Although the applicant  does  meet
the minimum requirement of the laws by  completing  15  years  of  active
service, his career field was excluded from that year’s program.

DPPRR also points out that Congress established TERA to give the  Service
Secretaries the authority to offer an early  retirement  option  to  help
manage the  size  of  their  respective  forces.   The  early  retirement
authority was not an entitlement but, rather, a tool the  services  chose
to use on a very limited basis.  To provide applicant an exception  would
not be fair to other members in the same career field, who were also  not
eligible for that year’s program.  A complete copy of this evaluation  is
at Exhibit E.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of  the  Air  Force  evaluations  were  forwarded  to  counsel  on
23 August 1999, for review and comment.  As of this date, this office has
received no response from the applicant.

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.   We  took  notice  of  the
applicant's complete submission  in  judging  the  merits  of  the  case;
however, we agree with the opinion and recommendation of  the  Air  Force
offices 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 to the contrary,  we
find no compelling 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 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 August 1, 2000, under the provisions of AFI 36-2603:

      Ms. Rita Looney, Panel Chair
      Ms. Peggy Gordon, Member
      Ms. Melinda Loftin, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 7 Apr 99 w/Atch.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFBCMR, dated 17 May 99.
    Exhibit D.  Letter, AFPC/DPPD, dated 10 Jun 99.
    Exhibit E.  Letter, AFPC/DPPRR, dated 4 Aug 99.
    Exhibit F.  Letter, SAF/MIBR, dated 23 Aug 99.




                                   RITA LOONEY
                                   Panel Chair