RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  99-03103
            INDEX CODE:  108.00

      APPLICANT  COUNSEL:  JOHN F. LEGRIS

            HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

Her  discharge,  with  disability  severance  pay,  be  changed  to  a
disability retirement, with a  compensable  disability  rating  of  at
least 50 percent.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The decisions of the Formal Physical Evaluation Board (FPEB), dated 29
Jan 98, and the decision of the Air Force Personnel Council  (SAF/PC),
dated 3 Apr 98,  are  contrary  to  law  and  regulation  and  violate
“minimum concepts of  basic  fairness.”   When  all  the  evidence  is
considered, the Board should reach the decision that she is unfit  for
further military service and should be  permanently  retired,  with  a
compensable rating of at least  50%,  under  the  appropriate  Veteran
Administration Schedule for  Rating  Disabilities  (VASRD)  codes  for
depressive  disorder  and   chronic   incapacitating   migraine   type
headaches.

In support of  her  request,  counsel  submits  a  legal  brief,  with
additional  documents  associated  with  the  issues  cited   in   her
contentions.  These documents are appended at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant’s Total Active Federal Military Service Date (TAFMSD) is
11 Jan 78.  She was progressively  promoted  to  the  grade  of  chief
master sergeant (E-9), with an effective date and date of  rank  of  1
Dec 93.

She was relieved  from  active  duty  on  22 Sep  95  for  a  physical
disability and her name was placed on the Temporary Disability Retired
List (TDRL), effective 23 Sep 95, with a compensable disability rating
of 60%.  Following the applicant’s 29  Sep  97  TDRL  evaluation,  the
Informal Physical Evaluation Board (IPEB) recommended the applicant be
permanently retired, with a compensable disability rating of 30%.   On
8 Dec  97,  the  applicant  indicated  her  non-concurrence  with  the
recommended findings and requested an  appearance  before  the  Formal
Physical Evaluation Board (FPEB).  On 29 Jan 98, the FPEB  recommended
the applicant be discharged with severance  pay,  with  a  compensable
disability rating of 10%.  On 4 Feb 98, she indicated her disagreement
with the findings and recommended disposition  of  the  FPEB  and  her
desire to submit a rebuttal.  On 3 Apr 98, the SAF  Personnel  Council
(SAF/PC) directed that the applicant’s name be removed from  the  TDRL
and that she be discharged  with  severance  pay,  with  a  disability
rating of 10%.  Effective 28 Apr 98, the applicant’s name was  removed
from the TDRL list and she was discharged in the grade of chief master
sergeant (E-9) because of physical  disability,  with  entitlement  to
disability severance pay.  She was credited with 17  years,  8  months
and 12 days of service for severance pay.

The relevant facts pertaining to this application, extracted from  the
applicant’s military records, 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.

The Department of Veteran’s Administration (DVA) records reflect  that
the applicant was granted a combined disability rating of 40% (30% for
benign growth of the spine and 10% for migraine headaches).

_________________________________________________________________

AIR FORCE EVALUATION:

The AFBCMR Medical Consultant stated  that  some  12  years  into  her
career, the applicant was evaluated for headaches and  found  to  have
communicating hydrocephalus, a condition of  overproduction  of  fluid
within the brain, and underwent placement of a shunt from the brain to
her abdominal cavity in Aug 90.  The  significant  alteration  in  her
life resulted in her first Medical Evaluation Board (MEB) in  Dec  90,
with ultimate return  to  duty  on  appeal  of  an  Informal  Physical
Evaluation Board (IPEB) recommendation for separation, with  severance
pay at 10% disability.  Continued problems with  headaches,  secondary
to the fluid problem, led to  a  second  MEB  in  Jun  93,  with  IPEB
recommendation the following month  for  placement  on  the  Temporary
Disability  Retired  List  (TDRL).   Appeal  to  the  Formal  Physical
Evaluation Board (FPEB), resulted in a Return to  Duty  recommendation
in  Aug  93.   Subsequent  development  of  cognitive  and  depressive
symptoms relating to the fluid problem brought yet a third  MEB,  with
subsequent  IPEB  recommendation  of  TDRL  at  60%  disability,  with
concurrence by the applicant.   A  subsequent  evaluation  in  Sep  97
reported “very significant social and  industrial  (S&I)  incapacity,”
marked job instability and  recommendation  that  her  S&I  impairment
remain “considerable” with likelihood of continued depression as  long
as her neurological problems persist.  The IPEB recommended  permanent
disability retirement at 30%, a recommendation the applicant  did  not
accept.  She again appealed the FPEB, counsel  advised  the  applicant
against pursuing a higher disability award for  fear  of  losing  that
level and being separated with a lesser  amount  of  award,  the  very
action that ensued, which  was  later  upheld  by  the  SAF  Personnel
Council.

The AFBCMR  Medical  Consultant  stated  that,  while  indicating  she
requested her military  counsel  to  withdraw  her  FPEB  appeal,  the
applicant wrote a letter of  rebuttal  to  the  FPEB’s  recommendation
indicating otherwise.  The FPEB and the SAF/PC looked at  all  aspects
of the applicant’s case, including her current stable employment  (one
year in a job) and concluded that S&I impairment was currently a  non-
player in their decision-making regarding the disability  level,  even
though concessions were made by her employer to  allow  for  her  “bad
days.”  The headaches were reported by her  evaluating  physicians  as
being less severe, and apparently did not interfere  with  her  normal
work  routines.   While  finding  the  applicant  unfit  for  military
service, these bodies  did  not  find  S&I  impairment  of  sufficient
severity to warrant a higher disability award.  Should  the  situation
change in the future, the  applicant  is  reminded  of  her  right  to
continue care with the Department of  Veterans  Affairs.   The  AFBCMR
Medical Consultant indicated that the records show the  applicant  was
appropriately  evaluated  and  rated,  at  the  time  of   her   final
disposition, and that no error or  inequity  occurred  in  the  rating
process that would warrant granting her current request.   The  AFBCMR
Medical Consultant is of the opinion that no change in the records  is
warranted and the application should be denied.  A  complete  copy  of
this evaluation is appended at Exhibit C.


The Physical Disability Division, HQ AFPC/DPPD, stated that a thorough
review  of  the  applicant’s  disability  file  revealed  no   errors,
irregularities or  injustice  that  would  require  a  change  of  her
military records.  DPPD recommended the applicant’s request be denied.
 A complete copy of this evaluation is appended at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel stated that  the  original  IPEB  determination  of  permanent
retirement at 30% should be honored at a minimum in this  case.   This
determination was based upon the  official  TDRL  medical  evaluation,
which concluded that the applicant had “very  significant  social  and
industrial incapacity”  as  well  as  marked  job  instability.   This
evaluation  further  recommended  that  her  S&I   impairment   remain
“considerable” because of the likelihood of  continued  depression  as
long as her neurological  problems  persist.   Since  the  applicant’s
abbreviated hearing was held in absentia, no new medical evidence  was
presented to the Board which would or could justify the AFBCMR Medical
Consultant’s conclusions,  and  a  reduced  rating  of  10%.   If  the
applicant’s conditions improved somewhat since her original  placement
on the TDRL, this would account for the IPEB’s determination that  her
60% rating be reduced to  30%.   It  would  not  however  justify  the
reduction from 60% to 10%, which is what the FPEB  ultimately  did  in
this case.

Counsel argues that it was unjust to separate the applicant  after  17
years, 8 months and 12 days of outstanding service when  the  official
medical TDRL evaluation and the IPEB results both supported  permanent
retirement, with at least 30%.  With regard to  the  severity  of  her
condition, the applicant has been under  the  care  of  a  Neurologist
since she moved to Virginia in 1998.  During the past 12 months,  this
physician has treated the applicant with over 13 different medications
in every prophylactic category for her headaches, depression and sleep
disorder without progress.  Clearly the action of the PEB  and  SAF/PC
in  rating  the  applicant  at  10%  is  erroneous  and  unjust.   The
circumstances of her absentia hearing are questionable.  The action of
the FPEB, as ratified by SAF/PC, should be  reversed.   The  applicant
should be permanently retired, with a compensable  rating  of  50%  as
argues in counsel’s original brief.  A complete copy of this  response
is appended 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.  Sufficient relevant evidence has been presented to demonstrate the
existence of probable error or injustice.  In reviewing the disability
processing  of  the  applicant’s  case,  we  noted   the   disposition
disagreement between the Informal Physical Evaluation Board (IPEB) and
the Formal Physical Evaluation Board (FPEB).  The IPEB, convened on 10
Nov 97, recommended the  applicant  be  permanently  retired,  with  a
disability rating of 30%.  The FPEB, convened on 29  Jan  98,  lowered
the disability  rating  to  10%,  and  recommended  the  applicant  be
discharged with severance pay.  We are concerned  with  the  disparity
between the boards in just over two months and we question the  degree
of the applicant’s disability at the time of her discharge.   In  this
respect, we note that the applicant has  been  under  the  care  of  a
Neurologist  since  1998  for  her  headaches,  depression  and  sleep
disorders.  It appears that the applicant’s medical condition may have
been far more severe at the time of permanent disposition.  In view of
the foregoing, we believe that any doubt on the degree of  applicant’s
disabling condition should be resolved in her favor.  However, we  are
not  persuaded  that  the  evidence  pertaining  to  the   applicant’s
condition supports the award of a compensable rating  of  50  percent.
We therefore believe that, to remove the possibility of an  injustice,
the applicant’s record should be corrected to reflect she was  retired
with a compensable disability rating of 30 percent.   Accordingly,  we
recommend that the  applicant’s  records  be  corrected  as  indicated
below.

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(s) involved.

_________________________________________________________________

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 28 April 1998, she was found unfit to perform the  duties
of her  office,  rank,  grade  or  rating  by  reason  of  a  physical
disability incurred while entitled to basic pay; that the diagnosis in
her  case  was  status  post  1990  ventriculoparotineal   shunt   for
communicating hydrocephalus with residuals of chronic daily  headaches
associated with  depressive  disorder  secondary  to  normal  pressure
hydrocephalus, chronic, in partial remission with treatment,  Veterans
Administration Schedule of Rating Disabilities (VASRD) Code 8199-8100,
rated at 30%; that the disability was permanent; that  the  disability
was not due to intentional misconduct or  willful  neglect;  that  the
disability was not incurred during a period of  unauthorized  absence;
and that the disability was not received in line of duty as  a  direct
result of armed conflict.

      b.  She was not discharged by reason of physical disability with
entitlement to disability severance pay on 28 April 1998, but on  that
date her name was removed from the Temporary Disability  Retired  List
and she was permanently retired by reason of physical disability.

_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 16 November 2000 and  9  April  2001,  under  the
provisions of AFI 36-2603:

                  Ms. Peggy E. Gordon, Panel Chair
                  Ms. Melinda J. Loftin, Member
              Ms. Barbara J. White-Olson, Member

All members  voted  to  correct  the  records,  as  recommended.   The
following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 15 Nov 99, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFBCMR Medical Consultant, dated
                   24 Apr 00.
   Exhibit D.  Letter, HQ AFPC/DPPD, dated 16 May 00.
   Exhibit E.  Letters, SAF/MIBR, dated 2 Jun 00, and AFBCMR,
                   dated 15 Aug 00.
       Exhibit F.  Counsel’s Letter, dated 13 Sep 00.




                                   PEGGY E. GORDON
                                   Panel Chair



AFBCMR 99-03103




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 28 April 1998, she was found unfit to perform the
duties of her office, rank, grade or rating by reason of a physical
disability incurred while entitled to basic pay; that the diagnosis in
her case was status post 1990 ventriculoparotineal shunt for
communicating hydrocephalus with residuals of chronic daily headaches
associated with depressive disorder secondary to normal pressure
hydrocephalus, chronic, in partial remission with treatment, Veterans
Administration Schedule of Rating Disabilities (VASRD) Code 8199-8100,
rated at 30%; that the disability was permanent; that the disability
was not due to intentional misconduct or willful neglect; that the
disability was not incurred during a period of unauthorized absence;
and that the disability was not received in line of duty as a direct
result of armed conflict.

            b.  She was not discharged by reason of physical
disability with entitlement to disability severance pay on 28 April
1998, but on that date her name was removed from the Temporary
Disability Retired List and she was permanently retired by reason of
physical disability.




            JOE G. LINEBERGER
                                        Director
                                        Air Force Review Boards Agency