RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  01-02096
            INDEX CODE:  108.01
            COUNSEL:  NONE

            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His discharge from  the  Air  Force  be  changed  to  reflect  that  he  was
medically discharged and that he  be  entitled  to  all  the  back  pay  and
benefits thereof.

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APPLICANT CONTENDS THAT:

Three Air Force physicals accomplished between  1952  and  1954  showed  his
spine to be  normal  and  free  of  any  unusual  or  potentially  crippling
defects.  In 1955,  after  an  accident  at  an  Air  Base  in  Tripoli,  an
examination revealed his spine was abnormal with several crippling  defects.
 The  examining  physician  said  the  defects  were  "probably"  congenital
deformities because the "medical history" indicated they  had  been  present
for "some time" and were "asymptomatic."  However,  his  research  into  his
medical record shows no evidence of any spinal abnormalities  prior  to  the
1955 accident or prior  to  his  enlistment  in  1952,  to  include  an  Air
National Guard (ANG) physical taken prior to his enlistment in  the  Regular
Air Force.  His Department of Veterans Affairs (DVA) claim for  compensation
retroactive to 1975 was denied.  The DVA remains adamant that  he  was  born
with  the  crippling  spinal  disabilities  that  were  noted  on  the  1955
examination.

Several weeks after the  discovery  of  the  abnormalities  and  deformities
another Air Force physician described them  an  a  "non-existent  backache."
In his report he stated that he believed he was malingering  to  avoid  duty
and that he  should  be  administratively  separated  from  the  Air  Force.
However, shortly after the  diagnosis  he  received  a  superior  efficiency
rating, accolades from  his  group  commander  praising  his  work  and  his
efforts to boost morale of Air Force personnel as  a  volunteer  with  Armed
Forces Radio.  Applicant believes the physician did not  like  him  and  was
frustrated because of his refusal to  answer  his  questions  regarding  the
nature of his unit’s mission.

If the DVA is correct, then they are accusing the four  Air  Force  and  ANG
physicians  of  incompetence  for  not  discovering  the  obviously  serious
abnormalities.  All four physicals included chest  x-rays  that  would  have
revealed the rather severe scoliosis.  Again, if the  DVA  is  correct  then
the Air Force was in violation of policy by recruiting  him  with  abnormal,
crippling, spinal birth defects.  When the Air Force discovered their  error
after the 1955 accident, he should have been  medically  retired  with  full
benefits.

In  support  of  his  request,  applicant  provided  a  personal  statement,
documents associated with his  correspondence  to  the  President,  extracts
from his medical records, statements of support, documents  associated  with
his DVA claims, a newspaper article; his DD Fm  214,  Armed  Forced  of  the
United States Report of Transfer or Discharge; and his NGB Fm 22, Report  of
Separation and Record of Service in the Air National  Guard.   His  complete
submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

On 28 Jun 52, applicant enlisted in the ANG.  He  was  discharged  from  the
ANG on 16 Sep 52, for the  Convenience  of  the  State.   On  2 Oct  52,  he
enlisted in the Regular Air Force.  He was  progressively  promoted  to  the
grade of airman first class having assumed that grade effective and  with  a
date of rank of 1 Feb 56.  On 18 Aug 56, he was released  from  active  duty
and transferred to the Air Force Reserve,  Non-Affiliated  Reserve  Section.
He was discharged from the Air Force Reserve on 27 Jun 60.

The remaining relevant facts pertaining to this application, extracted  from
the applicant’s military records, are contained in the  letter  prepared  by
the appropriate office of the Air Force.

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AIR FORCE EVALUATION:

The BCMR Medical Consultant reviewed the applicant’s request and  recommends
denial.  The Medical Consultant states that there clearly was  no  unfitting
medical condition that would have brought the applicant to the attention  of
the disability evaluation system following his accident in 1955.   It  would
appear that the applicant did have some spinal  abnormality  that  prevented
his being  accepted  into  aviation  training,  but  which  went  undetected
through several examinations prior to that time.  The  original  reading  of
his discharge x-ray did not include mention of his  bony  changes  but  were
only noted on a re-look of the film, so it is possible to read  a  chest  x-
ray and concentrate on the soft  tissues  without  commenting  on  the  bony
structures.  This same oversight might have occurred on his  earlier  x-rays
that did not  comment  on  the  spine  configuration.   Differences  between
enlistment and flying standards as to allowable spine  curvatures  that  are
acceptable may well account for his  being  accepted  for  enlistment  while
being rejected for flying duties.  His acute injury in 1955 would  not  have
produced the immediate x-ray  picture  that  was  reported  with  the  three
different spinal curves that were noted.   An  injury  may  well  produce  a
painful area that will cause a tilt of the spine in a single direction,  but
additional curves would not be expected to be seen until the  condition  had
existed for a much greater period of time.  Evidence speaks strongly  as  to
the  congenital  nature  of  his  spinal  curvatures,  which   while   being
temporarily aggravated by his fall, were not permanently aggravated  to  the
point  of  warranting  medical  disability   consideration.    The   Medical
Consultant evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant states there is absolutely no evidence to prove that  the  double-
curve thoracic scoliosis, dislocated and fractured  thoracic  vertebra,  and
lumbar scoliosis with tilted vertebra were  there  prior  to  service.   The
Medical Consultant indicated that four opportunities to discover  those  six
spinal abnormalities and disabilities were missed  due  to  oversights.   If
they actually existed prior to service then he was  illegally  recruited  in
violation of law and policy that  prohibits  recruitment  and  retention  of
persons with crippling or weakening spinal defects  without  waivers  signed
by the enlistee noting  that  the  disabilities  existed  prior  to  service
(EPTS).  If those disabilities later become problematic, the member  can  be
discharged without compensation.  He signed no such waivers and there is  no
annotation of EPTS on his entrance physical.  He should have been  separated
as unfit for duty when those disabilities were eventually discovered  during
his third year of service.

He sought the medical opinions of two orthopedic  surgeons,  independent  of
each other.  Both reviewed his Air Force radiographic  report  of  1955  and
his post-service DVA  examinations.    Both  agreed  that  the  fracture  of
vertebra T-3 was most likely not a congenital deformity.  In support of  his
request, applicant provided letters from his DVA  physician  and  orthopedic
surgeons.

Applicant provided an additional  statement  in  which  he  states  that  he
received a letter from AFPC/DPPD in response to his letter to the  Secretary
of Defense.  DPPD states that "his condition  was  deemed  as  EPTS  thereby
making him ineligible for a medical retirement."  This  is  a  mistake,  the
only condition indicated as EPTS was done after three years of service,  not
at the time of entry.  Additionally, the condition noted  as  EPTS  was  for
acute, severe mental/emotional problems, not  the  six  spinal  disabilities
documented on the post-accident x-rays.  In fact,  the  mental  disabilities
indicated as EPTS, denied that the spinal problems existed at all.  None  of
his Air Force physicals indicated any EPTS spinal  conditions.   In  further
support of his request, applicant provided a personal  statement,  a  letter
from AFPC/DPPD, and extracts from his medical records.

Applicant provided another statement in which he pointed out several  errors
he noted in the Medical Consultant evaluation.  Applicant  states  that  the
Medical Consultant states that there was "questionable" slippage of  T-3  on
T-4.  The radiologist said definitely that vertebra D-3 was slipping to  the
left of D-4 and that it "probably" represented a congenital deformity.   The
word probably is not  an  absolute.   The  Medical  Consultant  states  that
evidence  speaks  strongly  as  to  the  congenital  nature  of  the  spinal
curvatures, however, at no time in any of  his  Air  Force  medical  records
does it say that the thoracic and lumbar scoliosis  were  congenital.   When
the radiologist described the thoracic scoliosis and  the  tilted  vertebra,
he did not say they were congenital, he only indicated that  the  individual
vertebra was probably congenital.

The applicant’s complete submissions, with attachments, are  at  Exhibits  E
through G.

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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.  Insufficient relevant evidence has been  presented  to  demonstrate  the
existence of error  or  injustice  that  would  warrant  correction  of  his
records to reflect that he was medically separated from the Air Force.   The
purpose of the military Disability Evaluation System (DES) is to maintain  a
fit and vital force by separating members who are unable  to  perform  their
duties because of a physical disability.  The mere presence  of  a  physical
defect, however, does not qualify a  member  for  disability  retirement  or
discharge.  The defect or conditions must render the member unfit for  duty.
  After  review  of  the  evidence  provided,  we  see  no  evidence  of   a
disqualifying condition or that a physical disability existed  at  the  time
of his separation that rendered him unable to perform  his  military  duties
and would have disqualified him from worldwide service.  We  note  that  the
DVA  has  granted  his  claim  for  service-connected  disability.   It   is
important in this case to note that the service’s DES and that  of  the  DVA
operate under separate laws.  Under the service’s system, the  law  provides
compensation for those whose career is cut short as a result of  a  service-
incurred or service-aggravated physical disability.  The DVA rates  service-
connected conditions on the basis of  social  and  industrial  adaptability.
Therefore, it is entirely possible that an individual may  be  eligible  for
compensation under the DVA system while not being entitled  to  service  DES
processing.  Therefore, we agree with the opinion and recommendation of  the
BCMR Medical Consultant and  adopt  his  rationale  as  the  basis  for  our
conclusion that the applicant has  not  been  the  victim  of  an  error  or
injustice.  In the absence of persuasive evidence to the contrary,  we  find
no compelling  basis  to  recommend  granting  the  relief  sought  in  this
application.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented  did  not  demonstrate
the existence of 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  Docket  Number  01-02096  in
Executive Session on 14 May 02, under the provisions of AFI 36-2603:

      Mr. John L. Robuck, Panel Chair
      Mr. Thomas J. Topolski, Jr., Member
      Ms. Brenda L. Romine, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 20 Jul 01, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, BCMR Medical Consultant, dated 5 Mar 02.
    Exhibit D.  Letter, SAF/MRBR, dated 11 Mar 02.
    Exhibit E.  Letter, Applicant, dated 18 Mar 02, w/atchs.
    Exhibit F.  Letter, Applicant, dated 21 Mar 02, w/atchs.
    Exhibit G.  Letter, Applicant, dated 29 Mar 02.




                                   JOHN L. ROBUCK
                                   Panel Chair