RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  99-01317
            INDEX NUMBER:  108.01; 110.02

            COUNSEL:  DAV

            HEARING DESIRED:  Not Indicated

APPLICANT REQUESTS THAT:

His honorable discharge on 15 August  1978,  be  changed  to  retirement  by
reason of physical disability; and that the Board waive the time  limitation
in the interest of justice.

APPLICANT CONTENDS THAT:

After suffering from an automobile accident while on active duty, he  should
have been retired with a permanent disability due to injuries to his  hands,
head, neck, and back.  He  suffers  from  nerve  damage,  vision  loss,  and
numbness on the left side of his  body.   Due  to  the  seriousness  of  his
conditions, he was heavily sedated and did not have  a  clear  head  at  all
times during his remaining service from March to August 1978.

To the best of his knowledge, he was approached by officers from  the  Staff
Judge Advocate’s office who advised him that he could either take a  regular
discharge or  experience  a  long  drawn-out  medical  board  proceeding  to
determine the type of discharge he  should  receive.   He  was  very  young,
inexperienced, and naïve and respected authority,  so  he  relied  on  their
information and accepted the regular  discharge.   He  does  not  recall  if
there were military experts or National  Service  Veteran  Organizations  on
the base to explain to him all of the options of discharge  and  retirement.
Perhaps he should have asked more questions but  he  was  heavily  medicated
and worried about the effect  his  permanent  injuries  would  have  on  his
future.  He has lived with pain on a daily basis; has lost strength  in  his
left arm and leg; and has extremely painful headaches, loss of  vision,  and
fainting spells that occur mostly without warning.   In  view  of  the  fact
that he was not provided proper counseling  from  the  Air  Force,  and  was
under heavy sedation for his multiple permanent injuries which affected  his
ability to comprehend the various types of separations available,  he  feels
that changing his honorable discharge to retirement by  reason  of  physical
disability is warranted and in the best interest of justice (Exhibit A).

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 16 August 1974.   He  was
promoted to the grade of E-4, effective 1 May 1977.  He was separated on  15
August  1978,  under  the  provisions  of  AFR 39-10,  with   an   honorable
discharge.  He had served 4 years on active duty.

The  remaining  relevant  facts  pertaining  to  the   applicant’s   medical
condition are contained in the letters prepared by the  appropriate  offices
of the Air Force.  Accordingly, there is no need to recite  these  facts  in
this Record of Proceedings.

As of 17 March 1999, the Department of Veterans Affairs  (DVA)  has  awarded
the applicant  a  service-connected  disability  rating  of  30 percent  for
Residuals, Fracture of the Odontoid Process of C2 with Surgical  Fusion  and
Brown-Sequard Syndrome; 20% for Weakness, Left (Minor) Upper Extremity;  and
10%  for  Weakness,  Left  Lower  Extremity  for  a   combined   compensable
disability rating of 50%.

AIR FORCE EVALUATIONS:

The BCMR Medical Consultant’s review  of  the  applicant’s  medical  records
revealed sufficient evidence  to  support  favorable  consideration  of  his
request.  The applicant sustained a serious neck fracture that  resulted  in
significant residual impairment of his neck flexibility and muscle  strength
and sensation of his left arm and leg.  At the time of  his  discharge  from
the hospital in  late  July  1978,  he  continued  to  have  these  residual
effects, and no Medical Evaluation Board (MEB) was felt necessary,  contrary
to AFR 160-43 (now AFI 48-123), which is specific in detailing when  an  MEB
will  be  convened  when  neurological  deficits,  such  as  the   applicant
exhibited, are present.  While the applicant felt he could perform  most  of
the duties associated with his AFSC (“except for heavy lifting  and  looking
up”), his defects prevented full use of  all  faculties  needed  to  perform
such duties, and his separation should have been held until his fitness  for
duty was resolved in the disability evaluation system.  It  is  unclear  how
the applicant could have been considered fit to perform his assigned  duties
given his physical impairments.  The applicant’s  case  should  have  met  a
second MEB and been referred to the Physical Evaluation Board  (PEB),  where
the likely outcome would have been placement  on  the  Temporary  Disability
Retired List  (TDRL).   Following  an  appropriate  period  of  observation,
evaluation would then have disclosed permanent residual effects of the  neck
injury sufficient to award a permanent disability.  Considering the case  in
retrospect  and  the  evidence  of  record,  the  BCMR  Medical   Consultant
recommended that the applicant’s record be corrected to show  he  was  found
unfit, effective 15 August 1978, for diagnosis  of  Residuals,  Fracture  of
the Odontoid Process of C2 with  Surgical  Fusion  and  Residual  Neurologic
Deficits, with a disability rating of 30%, rated under VASRD code  5285-5290
(Exhibit C).

The Physical Disability  Division,  AFPC/DPPD,  recommended  denial.   Their
discussion of the case follows.

The applicant was injured during a one-car rollover  accident  on  11  March
1978, in which he sustained a  fracture  of  the  odontoid  process  of  the
cervical spine, resulting in a  high  cervical  cord  contusion  and  Brown-
Seguard syndrome with weakness of the left side  of  his  body  and  sensory
deficit on the right side of his body.  An  investigation  of  the  accident
was conducted on 16 March 1978, and it was found to be in the line of  duty.
 The applicant’s case  was  presented  to  an  MEB  at  Ellsworth  AFB,  who
referred him to Scott AFB for observation, treatment, and  disposition.   He
remained at Scott AFB, where he underwent surgery and physical therapy.   He
was found fit for duty and was placed  on  temporary  physical  restriction,
with L3, X3 profile.  At the time of his release from  Scott  AFB  Hospital,
he was advised that he was found fit for duty  and  he  did  not  request  a
board.

DPPD’s further review of the applicant’s medical records revealed  a  Report
of Medical History, dated 26 June 1978, just prior to his separation,  which
reflects he declared his present state of health as “good health,”  although
he stated he was still taking medication for pain.

A review of the AFBCMR case file was  conducted  by  the  Informal  Physical
Evaluation  Board (IPEB) who disagreed with the findings and conclusions  of
the BCMR Medical Consultant.  It was determined that, had the applicant  met
an MEB and the case was subsequently reviewed by the IPEB, the  Board  would
have returned the applicant to duty for further observation and  care  based
on his improving condition as indicated in the narrative summary,  dated  24
July 1978, from Scott AFB.  Additionally, had the  applicant  been  referred
to the MEB with his pending separation date of  15  August  1978,  he  would
have had to overcome the presumption of fitness.  His medical  condition  at
the time of his separation did not appear to be  serious,  grave,  or  life-
threatening enough to preclude him from completing  his  enlistment  in  the
Air Force.  Medical conditions that are incurred on active duty but are  not
serious enough to cause the early termination of a military career  are  not
compensated under Title 10, USC, but may  be  compensated  under  Title  38,
USC, by the Department  of  Veterans  Affairs  (VA).   AFPC/DPPD’s  complete
evaluation is at Exhibit D.

APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

Copies of the Air Force evaluations were forwarded to the applicant and  his
counsel on 24 September  1999,  for  review  and  response  within  30  days
(Exhibit E).  The applicant noted his age  and  lack  of  knowledge  of  the
disability  evaluation  system.   He  believes  Air  Force  officials   were
negligent in not scheduling  him  for  an  MEB.   The  applicant’s  complete
response is 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.  Sufficient relevant evidence  has  been  presented  to  demonstrate  the
existence of probable  error  or  injustice.   The  majority  of  the  Board
accepted the opinion and recommendation from the  BCMR  Medical  Consultant,
who indicates that the proper course to be followed in the applicant’s  case
would have been to present his  case  to  an  MEB  followed  by  a  PEB  for
consideration.   Based  on  the  above,  the  Board  majority  believes  the
applicant should have been found unfit by  reason  of  physical  disability.
The BCMR Medical Consultant recommended  that  the  applicant’s  records  be
corrected to show he was  found  unfit,  effective  15 August  1978,  for  a
diagnosis of  Residuals,  Fracture  of  the  Odontoid  Process  of  C2  with
Surgical Fusion  and  Residual  Neurological  Deficits,  with  a  disability
rating of 30%, rated under VASRD code 5285-5290.  We agree.  Therefore,  the
majority of the Board recommends  his  records  be  corrected  as  indicated
below.


THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air  Force  relating
to APPLICANT, be corrected to show that:

      a.  On 14 August 1978, 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;  that  the  diagnoses  in  his
case are Residuals, Fracture of the Odontoid Process  of  C2  with  Surgical
Fusion and Residual Neurological Deficits, VASRD Codes 5285-5290,  rated  at
30%; the total combined compensable  rating  was  30%;  the  disability  was
permanent; the disability was not due to intentional misconduct  or  willful
neglect; the disability was not incurred during  a  period  of  unauthorized
absence; the disability was incurred in the line  of  duty;  the  disability
was incurred during a period of national emergency; and the  disability  was
not the direct result of armed conflict or caused by an  instrumentality  of
war

      b.  He was not released from active duty on 15 August  1978,  but  was
permanently retired by reason of physical disability,  effective  16  August
1978.


The following members of the Board considered this application in  Executive
Session on 27 April 2000, under the provisions of AFI 36-2603:

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

By  a  majority  vote,  the  Board   voted   to   grant   the   application.
Mr. Markiewicz voted to deny the request on the basis of timeliness,  noting
that the applicant was discharged over 20 years  ago.   Mr.  Markiewicz  did
not believe it would be in the interest of justice to waive the  applicant’s
failure to timely file.  However, he did  not  wish  to  submit  a  minority
report.

    Exhibit A.  DD Form 149, dated 12 Dec 98, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, BCMR Medical Consultant, dated 21 Jul 99.
    Exhibit D.  Letter, AFPC/DPPD, dated 7 Sep 99.
    Exhibit E.  Letters, SAF/MIBR, dated 24 Sep 99.
    Exhibit F.  Letter, Applicant, dated 7 Oct 99.



                                   THOMAS S. MARKIEWICZ
                                   Panel Chair



AFBCMR 99-01317




MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air Force
Board for Correction of Military Records and under the authority of
Section 1552, Title 10, United States Code (70A Stat 116), it is directed
that:

      The pertinent military records of the Department of the Air Force
relating to APPLICANT, be corrected to show that:

            a.  On 14 August 1978, 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; that the diagnoses in his
case are Residuals, Fracture of the Odontoid Process of C2 with Surgical
Fusion and Residual Neurological Deficits, VASRD Codes 5285-5290, rated at
30%; the total combined compensable rating was 30%; the disability was
permanent; the disability was not due to intentional misconduct or willful
neglect; the disability was not incurred during a period of unauthorized
absence; the disability was incurred in the line of duty; the disability
was incurred during a period of national emergency; and the disability was
not the direct result of armed conflict or caused by an instrumentality of
war.

            b.  He was not released from active duty on 15 August 1978, but
was permanently retired by reason of physical disability, effective 16
August 1978.





            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency