RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBERS:  00-03318
                       INDEX CODE 108.02  108.01
                       COUNSEL:  None

                       HEARING DESIRED:  No

_________________________________________________________________

APPLICANT REQUESTS THAT:

His premature removal from the Temporary  Disability  Retirement  List
(TDRL) in 1998 be re-evaluated [The applicant  does  not  specifically
state whether he wishes to be reinstated on the TDRL or placed on  the
Permanent Disability Retirement List (PDRL)].

_________________________________________________________________

APPLICANT CONTENDS THAT:

He would have remained on active duty for the less than three years he
needed for retirement; however, the decision to remove  him  was  made
for him.  He was advised by a Veterans’ Affairs (VA) representative to
agree with the findings of the medical board. He thought he would  get
a favorable result and signed the waiver.  The results of  his  latest
MRI show that he has more than degenerative arthritis. The problems he
has been experiencing since 28 Feb 93 are real and have  been  getting
worse.  He lives in constant pain with  no  relief.  If  he  only  had
degenerative arthritis, he would not be currently waiting to talk to a
neurosurgeon. He asks that the Board correct the decision that removed
him from the TDRL and separated him with severance pay.

His complete submission is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant entered active duty on 18 Jul 79.  At the  time  of  his
injury, his was the NCOIC, Battalion Tactical Air Control  Party,  for
Detachment 2, 18th Air Support Group, at Ft. Stewart, GA.

According to  an  orthopedic  medical  entry  dated  28  Sep  95,  the
applicant fell in the snow in Feb 93 and hit his back against a  tree.
He developed lower and middle back pain.  A  lumbar  laminectomoy  and
partial diskectomy for decompression of L4-L5 was recommended.

An MRI revealed L4-L5 herniated nucleus pulposus.  He was referred  to
a neurosurgeon, who performed a left hemilaminectomy and diskectomy on
8 Jan 96.  However,  the  pain  continued  despite  physical  therapy.
Following further neurological examination on  2  May  96,  a  medical
evaluation board (MEB) was recommended.

On 3 Jul 96, the MEB referred  the  applicant’s  case  to  a  physical
evaluation board (PEB) which, in turn, recommended on 19 Jul  96  that
the applicant be placed on the TDRL with a compensable rating  of  40%
for chronic  low  back  pain,  status  post  Jan  96  hemilaminectomy,
foraminectomy, and diskectomy at L4-5  for  diffuse  bulge  with  mild
stenosis.  The applicant agreed with the findings and  recommendations
on 8 Aug 96.

Special Order ACD-1811, dated 19  Aug  96,  directed  the  applicant’s
permanent retirement in the grade of staff sergeant for disability  at
40% effective on 28 Sep 96 with 17 years, 2 months,  and  10  days  of
active service.  [On 22 Jun 98, the  original  order  was  amended  by
Special Order ACD-1067 to reflect that the applicant’s retirement  for
disability was temporary and he was placed on the  TDRL  effective  28
Sep 96.]

In a 30 Jan 98  TDRL  evaluation,  an  orthopedic  surgeon  noted  the
applicant  had  continued  symptoms  after  the  operation   with   no
improvement in either his back or leg pain.  The  physician  indicated
that, unless further evaluation revealed obvious  compression  of  the
sac or nerve roots, he did not believe  the  applicant  would  improve
significantly  with  any  further  treatment  and  recommended  he  be
medically retired and taken off TDRL status.

On 24 Feb 98, an Informal PEB (IPEB) determined that the applicant was
unfit  because  of   chronic   low   back   pain,   status   post-left
hemilaminectomy, foraminectomy and diskectomy L4-5  in  Jan  96  VASRD
code 5293, and his condition  warranted  removal  from  the  TDRL  and
discharge with severance pay at 20%.  However, the applicant disagreed
with the recommendation on 18 Mar  98.   He  requested  a  Formal  PEB
(FPEB).  On 1 May 98, after  indicating  he  had  consulted  with  his
counsel, the applicant changed his mind,  concurred  with  the  IPEB’s
recommendations, and waived his earlier  election  for  an  FPEB.   On
9 Jun 98, the Secretary of the Air Force  (SAF),  acting  through  the
Personnel Council (SAF/PC), directed the applicant’s removal from  the
TDRL and discharge with severance pay and a disability rating of  20%,
effective 12 Jul 98.

_________________________________________________________________

AIR FORCE EVALUATION:

The  AFBCMR  Medical  Consultant  notes  that  stabilization  of   the
applicant’s condition was apparent at the time  of  final  disposition
and appropriate dispensation was then effected.  Current studies  from
Aug-Sep 00 show essentially the same changes as were noted in his post-
operative TDRL evaluations, changes that were taken  into  account  in
his disability processing.  There is no evidence to support  a  higher
rating at the time of permanent disposition. Denial is recommended.

A complete copy of the evaluation is at Exhibit C.

The Chief, Special Actions/BCMR Advisories,  HQ  AFPC/DPPD,  discusses
the differences between Titles 10 and 38 of the  United  States  Code,
which govern the disability determinations of the Air  Force  and  the
Department  of  Veterans  Affairs  (DVA),  respectively.   The   Chief
explains why the two agencies can render different ratings.  Denial is
recommended.

A complete copy of the evaluation is at Exhibit D.
_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his first letter, the applicant indicates he  did  agree  with  the
findings of the FPEB because the letter  he  signed  stated  he  could
submit new evidence. After being there for three days, he was told  he
would probably not be seen until the following week. He therefore told
the VA representative that if he stayed off that long, he  might  lose
his job.  He has always tried to hide the fact that he was  suffering,
but he did not improve after surgery  and  his  problems  are  getting
worse.

In his second response, he provides a 26 Mar 01 medical entry  from  a
neurosurgery clinic.  While he may have arthritis, it is not his major
concern nor is it the reason why he has so much pain.

The applicant’s two responses, with attachment, are at 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. After a thorough  review
of the evidence of record and the applicant’s submission, we  are  not
persuaded  that  his  medical  condition  warrants  reevaluation.  The
applicant’s contentions are duly noted; however, we do not find  these
assertions, in and by themselves, sufficiently persuasive to  override
the rationale provided by the Medical Consultant and the Air Force. We
therefore adopt the rationale expressed as the basis for our  decision
that the applicant has failed to sustain his burden of having suffered
either an error or an injustice. In  view  of  the  above  and  absent
persuasive evidence to the contrary, we conclude this appeal should be
denied.

_________________________________________________________________

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 3 May 2001, under the provisions of AFI 36-2603:

                  Mr. Henry Romo Jr., Panel Chair
                  Mr. William H. Anderson, Member
                  Mr. John E. B. Smith, Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 5 Dec 00, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFBCMR Medical Consultant, dated
                       18 Jan 01.
   Exhibit D.  Letter, HQ AFPC/DPPD, dated 13 Feb 01.
   Exhibit E.  Letter, SAF/MIBR, dated 23 Feb 01.
   Exhibit F.  Letters, Applicant, dated 15 Mar & 6 Apr 01,
                        w/atchs.




                                   HENRY ROMO JR.
                                   Panel Chair