RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER: 00-02911
            INDEX NUMBER:  108.02, 108.10

            COUNSEL:  GEORGE E. DAY; ANTHONY WALLUK

            HEARING DESIRED:  NOT INDICATED

___________________________________________________________________

APPLICANT REQUESTS THAT:

His disability discharge, effective 21 February 1998,  with  a  20%
disability rating be  set  aside,  and  he  be  granted  disability
ratings of 20%  for  spinal  injury,  10%  for  tinnitus,  30%  for
migraine headaches, and 50%  for  panic  attacks,  for  a  combined
compensable rating of  70%,  with  service  connection  established
during the Gulf War.

Counsel asks for a modification of the Air Force record to  show  a
rating of 30% for lumbar disease, 10% for migraine  headaches,  and
50% for panic attack disease.

___________________________________________________________________

APPLICANT CONTENDS THAT:

The Air Force Physical Evaluation Board (PEB)  failed  to  properly
evaluate his case.  After returning from  the  Gulf  War  in  March
1991, he began experiencing severe left leg pain.  He was unable to
identify any previous specific trauma, which would account for  the
pain.  He began experiencing insufferable migraine headaches.

He was referred to  a  Medical  Evaluation  Board  (MEB).   He  has
documentation that between 1991 and 1997, he had multiple visits to
physicians, including at least 60 clinic visits, 3  emergency  room
visits, and multiple  visits  to  neurologists,  neurosurgeons  and
orthopedic surgeons.  This demonstrates a chronic pain as  well  as
debilitating pain.  In 1993, a CT scan demonstrated that he  had  a
central disc bulge at L-4-5 disc space and an MRI in  August  1993,
indicated a disc bulge at L-5, S-1.  He also  had  a  non-malignant
brain cyst, with complaints of migraine headaches.

The PEB conducted on 31 March 1997 rated  his  disability  at  20%,
code 5293, back pain with left side radiculopathy  associated  with
lumbar spinal stenosis.  There was no rating  for  headaches.   The
Board found him unfit for further military service and recommended
discharge with severance pay.   He  was  placed  on  the  temporary
disability retired list (TDRL) on 31  March  1997.   [On  31  March
1997, the FPEB did render a diagnosis of back pain with  left-sided
radiculopathy associated with lumbar spinal stenosis, rated at 20%,
and recommended discharge with severance pay.  However, there is no
documentation in the record to indicate his name was ever placed on
the TDRL.]

The weight of the evidence indicates that while his spinal stenosis
was reported as mild,  his  symptoms  were  in  fact  severe.   The
Department of Veteran Affairs (DVA) increased the  rating  to  60%,
finding that he suffered  from  migraine  headaches  sufficient  to
justify a rating of 10%; and from a panic disorder to the extent of
a 50% disability rating.

There was no evidence to support a finding that his  condition  was
not Gulf War related.  He is entitled to the presumption of  combat
connection.

The first PEB was recalled and  a  second  board  was  convened  on
17 October 1997.  It was to be a new board, not a review of the old
board.  The second board used the old record and  findings  instead
of conducting a “de novo” board.

He was involuntarily separated  and  experienced  serious  problems
seeking employment.  He has not worked since he left active duty in
October 1997.

Upon reconsideration, the DVA rated the applicant’s  disability  at
50% for panic attack disease, 10% for migraine headaches,  and  20%
for lumbar disease, for a combined rating of 60%.  He is  appealing
the 20% rating for spinal disease.

The applicant’s complete submission is at Exhibit A.

___________________________________________________________________

STATEMENT OF FACTS:

The applicant is a former member who was honorably discharged  from
the Air Force on 21 February 1998, under the provisions of AFI  36-
3212, due to a physical disability, rated at 20%, with  entitlement
to severance pay.  At the time of his discharge, the applicant  was
serving in the grade of E-5 and was credited with 13 years, 1 month
and 13 days of active duty service.

The applicant's Enlisted Performance Report (EPR) ratings follow:

      PERIOD ENDING          EVALUATION

       8 Apr 1993      5
       8 Apr 1994      4
      15 Dec 1994      4
      15 Dec 1995      5
      20 Apr 1996      5
      20 Apr 1997      5

Documentation submitted by the applicant indicates that in December
1999, the DVA found that his migraine headaches  had  increased  in
severity and changed the rating for migraine headaches from 10%  to
30%.  The ratings of 10% for tinnitus, 10% for lumbar disc disease,
and 50% for panic/depressive disorder remained unchanged.

The  remaining  relevant  facts  pertaining  to  this  application,
extracted from  the  applicant’s  records,  are  contained  in  the
official documents at Exhibit A and in the letters prepared by  the
appropriate  offices  of  the  Air  Force  at  Exhibits  C  and  D.
Accordingly, there is no need to recite these facts in this  Record
of Proceedings.

___________________________________________________________________

AIR FORCE EVALUATIONS:

The Chief Medical Consultant, AFBCMR, reviewed the application  and
recommended denial, stating that the evidence of record establishes
beyond  all  reasonable  doubt  that  the  applicant  was  properly
evaluated and rated; that the level of compensation  awarded  prior
to separation was proper; and that no error or injustice  occurred.
A complete copy of the evaluation is at Exhibit C.

The  USAF  Physical  Disability  Division,  AFPC/DPPD,  recommended
denial.  They noted that under military disability laws and policy,
USAF disability boards can only rate those medical conditions which
make the member unfit for continued military service at the time of
evaluation.  Service-connected medical conditions incurred, but not
found unfitting while on active duty,  are  not  compensated  under
Title 10, USC; however, under Title 38, USC, the DVA may compensate
prior service members for these conditions.  The DVA  is  chartered
to provide medical care for veterans once they leave  active  duty.
Under Title 38, USC, the DVA may increase or  decrease  a  member’s
disability rating based on the seriousness of the medical condition
throughout his or  her  life  span.   This  is  why  sometimes  the
services and  the  DVA  disability  ratings  may  differ.   Records
indicate  that  the  applicant  is  currently  being  treated   and
compensated  by  the  DVA   for   his   service-connected   medical
conditions.

After a thorough  review  of  the  case,  the  Physical  Disability
Division concluded that the applicant was treated fairly throughout
the entire military disability  evaluation  process;  that  he  was
properly rated under federal disability guidelines; and that he was
afforded a  full  and  fair  hearing  as  required  under  military
disability laws and policy.  They found no errors or irregularities
that would justify a change to the applicant’s military records.

The complete evaluation is at Exhibit D.

___________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

Counsel stated that the purpose of a PEB is to evaluate the  impact
of a claimant’s impairment on future  employability.   It  was  the
duty of the PEB to properly evaluate the existing evidence  of  the
applicant’s mental condition, headaches, and chronic fatigue.   His
work  attendance  and  performance  had  naturally  been  seriously
affected.  His attendance and quality of work  had  been  seriously
impaired.  Those same impairments  could  clearly  be  expected  to
impinge on his civilian employment just as they did his  Air  Force
work.  His condition made it impossible to  deploy  him  worldwide.
He was assigned to light duty and was further referred  to  an  MEB
and a PEB, who were required to recognize all of the  reasons  that
the applicant was on light duty.  The DVA had the same  records  to
evaluate as the Air Force, but found him entitled to a  30%  rating
for migraine headaches and a 50% rating for  panic  disorder.   The
applicant never held a meaningful job after leaving the Air  Force,
nor was he able to make use of the GI bill to upgrade his education
and to create some earning ability.  The findings of the  PEB  must
be reversed and the applicant be provided with a rating  consistent
with his conditions upon leaving the Air Force (Exhibit F).

___________________________________________________________________

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 noted
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  no  error  or
injustice occurred during the processing of the  applicant  through
the Air Force Disability Evaluation  System.   The  medical  boards
were aware of all of his conditions at the time of discharge and we
have seen no evidence that  he  was  not  appropriately  evaluated.
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 documentation provided with this  case  was  sufficient  to
give the Board a clear understanding of the issues involved  and  a
personal appearance,  with  or  without  counsel,  would  not  have
materially added to that understanding.  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 20 March 2001, under the provisions of AFI 36-
2603:

                 Mr. Richard A. Peterson, Panel Chair
                 Mr. Roscoe Hinton, Jr., Member
                 Mr. Thomas J. Topolski, Jr., Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 11 Sep 2000, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, BCMR Medical Consultant, dated 8 Dec 2000.
    Exhibit D.  Letter, AFPC/DPPD, dated 4 Jan 2001.
    Exhibit E.  Letter, SAF/MIBR, dated 19 Jan 2001.
    Exhibit F.  Letter, Counsel, dated 15 Feb 2001.




                                   RICHARD A. PETERSON
                                   Panel Chair