RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:            DOCKET NUMBER:  01-02189
                 INDEX CODE:  110.00
                 COUNSEL:  NONE

                 HEARING DESIRED:  NO

___________________________________________________________________

APPLICANT REQUESTS THAT:

Her voluntary retirement for years of service be  set  aside,  and  she  be
awarded a disability retirement.
___________________________________________________________________

APPLICANT CONTENDS THAT:

Since she had an established date of retirement, she believes  the  Informal
Physical Evaluation Board (IPEB) could  not  get  past  the  presumption  of
fitness rule and never considered the alternatives allowed by  AFI  36-3212,
paragraph   3.17.2.    Her   medical   doctors   provided   an    incomplete
recommendation to the IPEB that  did  not  accurately  reflect  her  record.
Therefore, she should have been medically retired.

In support of her submission the applicant provided  a  personal  statement,
copies of a letter from 14MDG/SGO, MEB  report,  her  Air  Force  retirement
physical,  VA  rating  decision,  and   numerous   medical   reports.    The
applicant’s complete submission, with attachments, is at Exhibit A.

___________________________________________________________________

STATEMENT OF FACTS:

The applicant was appointed a second lieutenant, Reserve of  the  Air  Force
on 30 June 1970 and was voluntarily ordered to extended active duty on  that
same date.  She was integrated into the Regular Air Force on  25  July  1973
and was progressively promoted to the rank of  colonel.   She  was  released
from active duty on 31 July 1998  and  voluntarily  retired  for  length  of
service on 1 August 1998.  She was credited with 28 years, 3 months, and  25
days of total active federal military service.

The remaining 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 at Exhibits C and D.


___________________________________________________________________


AIR FORCE EVALUATION:

The BCMR Medical Consultant  reviewed  applicant's  request  and  recommends
denial.  The Medical Consultant states that the  her  28  years  of  service
were marked by 26 years of low back pain that she relates to her  experience
driving a half-ton pickup truck in Thailand in 1972.   Through  the  ensuing
years she was treated for multiple back complaints along with knee and  foot
problems that led to multiple surgeries, in spite of which she continued  to
perform admirably  as  noted  in  her  performance  reports  dating  through
January  1997,  the  last  one  found  in  her  records.   She  additionally
underwent a hysterectomy and bilateral ovary  removal  following  infections
associated with use of an intrauterine contraceptive device.  Other  medical
problems were fibromyalgia, shingles, migraine headaches, and  a  myriad  of
other problems which are detailed in  her  retirement  physical  examination
performed in July 1998 when she was found fit  for  service  or  retirement.
Since retirement, she has been seen by the Department  of  Veterans  Affairs
(DVA) system and received  a  rating  of  80%,  50%  of  which  is  for  her
hysterectomy.  Her back problems, which have led to  further  surgery  since
the DVA decision, were rated at 20%.  The Physical Standards  Section  found
she had not overcome the presumption of fitness rule in determining she  did
not qualify for a disability retirement.  She contests this  decision  based
on her perception that she was not fulfilling her duties  as  a  colonel  in
the Air Force and that her ROTC students deserved better than what  she  was
able  to  provide.   Again,  her  performance  records  do  not  indicate  a
diminution in her abilities or performance.

For an individual to be considered unfit for military service there must  be
a medical condition so severe that  it  prevents  performance  of  any  work
commensurate with rank and experience.  Once  this  determination  is  made,
namely that the individual is unfit, disability-rating percentage  is  based
upon the member's condition at the time of permanent disposition.   In  this
instance,  the  applicant's  conditions  had  not  rendered  her  unfit  for
continued military service, and she has continued to hold down  a  full-time
job in her retirement.  Clearly, the hysterectomy  for  which  she  is  most
highly  compensated  was  not  an  unfitting  condition  for  her  continued
service, and the  other  conditions  were  not  of  such  severity  to  have
overcome the presumption of fitness that applies in the last year  of  one's
service for conditions that have been known for a period of time  but  which
do not progress in severity to such an extent as to  render  the  individual
incapable  of  performance  of  his/her  duties  as  would  occur   with   a
catastrophic and sudden change.  Records do  not  show  that  this  was  the
case, and her present appeal should  not  receive  favorable  consideration.
Evidence  of  record  establishes  beyond  all  reasonable  doubt  that  the
applicant was properly evaluated, that retirement for length of service  was
proper, and that no error or injustice occurred in this case.

In response to additional information submitted by the applicant,  the  BCMR
Medical Consultant provided an addition advisory in  which  he  states  that
the information provided outlines her present  limitations,  but,  does  not
add additional information that would change  previous  decisions  regarding
her condition at the time of her retirement.   Changes  one  experiences  in
the  period  following  separation   or   retirement   cannot   be   applied
retroactively to the person’s period of active duty.  Such  changes  are  to
be considered in the DVA reviews of one’s  status  in  the  years  following
retirement where compensation may change  with  the  changing  disabilities.
The Medical Consultant is of the opinion  that  the  additional  information
provided in the "Functional Exam/Assessment (FCE)"  in  no  way  alters  the
findings at the time  of  the  applicant’s  retirement  that  would  warrant
reconsideration for  a  disability  retirement.   The  Medical  Consultant’s
evaluation is at Exhibit C.

AFPC/DPPD reviewed applicant's request and recommends denial.   DPPD  states
the disability processing records reflect that the applicant  was  presented
before an MEB on 26 Feb 98, and her case referred to the  Informal  Physical
Evaluation Board  (IPEB)  for  adjudication.   The  board,  following  their
review, determined that none of her medical conditions were severe or  grave
enough to overcome the  presumption  of  fitness  under  the  provisions  of
Department of Defense Instruction  1332.38,  and  recommended  that  she  be
returned to duty.  Records indicate that her voluntary  retirement  at  that
time had already been approved for 1 Aug 98. Active duty and  Ready  Reserve
members undergoing an MEB who are subsequently determined fit  for  duty  do
not have entitlement to a Formal PEB since such a finding does not cause  an
involuntary separation for  a  physical  disability.   Individuals  who  are
pending retirement at the time they are referred for a  physical  disability
evaluation  enter  the  disability  evaluation  system  under   a   rebuttal
presumption that they are physically fit.

The applicant’s  military  records  reflect  that  her  retirement  physical
conducted on 9 Jun 98  found  her  qualified  for  worldwide  duty  with  no
disqualifying physical profiles  and  clearly  reflect  she  was  reasonably
capable of performing her duties right up until the  time  of  her  approved
retirement.  This is further attested to  in  her  performance  reports  and
again in her citation in which she was awarded the Legion of Merit.

DPPD states the applicant’s medical records reflect  that  she  was  treated
for various conditions throughout her military  career.   The  fact  that  a
person  may  have  been  diagnosed  with  a  medical  condition   does   not
automatically mean that they are unfit for continued military  service.   To
be unfitting, the medical condition must  be  such  that  the  condition  by
itself precludes the member from fulfilling the purpose for which he or  she
is employed.  If a member is referred to an MEB/PEB, and the  board  renders
a finding of  unfit,  the  law  provides  appropriate  compensation  to  the
individual due to the premature termination of his or her career.   Further,
USAF disability boards can only rate  a  member's  medical  condition  based
upon his or her medical state at the time of their evaluation; in essence  a
snapshot of the condition at that time.

DPPD states that following their examination of the  file,  DPPD  determined
that the member did not overcome the presumption of fitness at the  time  of
her processing through the military disability evaluation system,  and  that
her  return  to  duty  was  appropriate  and  in  accordance  with  military
disability laws and policy.  Based on the above conclusions, DPPD  found  no
reason that would justify correcting her records to  reflect  that  she  was
awarded a disability retirement.  The  medical  aspects  of  this  case  are
fully explained by the Medical Consultant; they  agree  with  his  advisory.
The member has not submitted any material or documentation to show  she  was
unfit due to a physical disability  under  the  provisions  of  Chapter  61,
Title 10, USC, at the time of her service retirement.  The  DPPD  evaluation
is at Exhibit D.

___________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force Evaluations were  forwarded  to  the  applicant  for
review and response.  As of this date, this office has received no  response
(Exhibit E).

___________________________________________________________________

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  injustice  that  would  warrant   the   applicant's
evaluation through the Air  Force  Disability  Evaluation  System.   At  the
recommendation of her physician, the applicant was  referred  to  a  Medical
Evaluation Board (MEB).  The MEB, which convened on 26 Feb 98, reviewed  her
medical history and found that her medical conditions,  which  she  incurred
while she was entitled to receive basic pay, were permanently aggravated  by
military service and recommended that her case be forwarded to the  Physical
Evaluation Board (PEB) for disability consideration.  However, the  Informal
Physical Evaluation Board (IPEB) determined  that  none  of  her  conditions
were severe or grave enough to overcome the presumption of fitness rule  and
recommended that she be returned to duty.  The presumption of  fitness  rule
states that service members who are pending retirement at the time they  are
referred  for  physical  disability  evaluation  are  under   a   rebuttable
presumption that they are  physically  fit.   The  applicant  believes  that
because she already had an established retirement date, the IPEB  could  not
see past the presumption  of  fitness  rule,  and  therefore,  she  did  not
receive fair consideration under the DES.   In  his  recommendation  to  the
MEB, her physician opined that her chronic pain in  her  back  and  multiple
extremities had deteriorated to the point where  he  did  not  consider  her
qualified for worldwide duty.  In  support  of  her  request,  she  provided
credible evidence from the  MEB  board  members  which  indicated  that  her
condition had acutely exacerbated to the point where her ability to  perform
her daily activities were significantly deteriorated and that she was  often
unable to complete her military duties.  The  physicians  went  further  and
provided additional  medical  documentation  along  with  a  statement  that
indicated inadequate data was provided to the IPEB for consideration of  her
case.  In addition, a statement provided by her supervisor  has  led  us  to
believe that her medical conditions had seriously inhibited her  ability  to
perform her duties during the last few years of her tenure.

The presumption of fitness rule is  overcome  when  within  the  presumptive
period, a serious deterioration of a previously diagnosed  condition  occurs
and the deterioration would preclude further duty  if  the  individual  were
not retiring; or, when a chronic condition exists  and  a  preponderance  of
evidence establishes that the member was  not  performing  duties  befitting
his or her experience in the office, grade, rank, or rating before  entering
the presumptive period.  We are inclined to believe that the  aforementioned
evidence provided by the applicant meets the criteria  that  would  overcome
the presumption of fitness rule.  We  are  also  inclined  to  believe  that
because  of  the  constraints  of  the  presumption  of  fitness  rule,  the
applicant may not have received  fair  and  full  disability  consideration.
However, it remains our opinion that a duly constituted  PEB,  would  be  in
the best position to make  such  a  determination.   In  view  of  this,  we
believe that the interest of justice  can  best  be  served  by  having  the
applicant reevaluated by the disability evaluation  system.   We  note  that
during this evaluation, if the applicant disagrees with the  IPEB  findings,
she  will  have  the  right  to  present  her  case  before  a  Formal  PEB.
Therefore, we  recommend  that  her  records  be  corrected  to  the  extent
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 invitational travel orders be  issued
by  competent  authority  for  the  purpose  of  evaluation  by  a   Medical
Evaluation Board (MEB) and a Physical Evaluation Board (PEB).

It is further recommended that the results of the  evaluation  be  forwarded
to the Air Force Board for Correction of Military Records  at  the  earliest
practicable date so that  all  necessary  and  appropriate  actions  may  be
completed.

_________________________________________________________________

The following members of the Board  considered  Docket  Number  01-02189  in
Executive Session on 10 Apr 02, under the provisions of AFI 36-2603:

      Ms. Charlene M. Bradley, Panel Chair
      Mr. Albert F. Lowas, Jr., Member
      Ms. Carolyn B. Willis, Member

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

    Exhibit A.  DD Form 149, dated .
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, BCMR Medical Consultant, dated 24 Oct 01.
    Exhibit D.  Letter, AFPC/DPPD, dated 19 Nov 01.
    Exhibit E.  Letter, SAF/MRBR, dated 30 Nov 01.
    Exhibit F.  Letter, BCMR Medical Consultant, dated 17 Dec 02.
    Exhibit D.  Letter, SAF/MRBR, dated 30 Jan 02.




                             CHARLENE M. BRADLEY
                                             Panel Chair

AFBCMR 01-02189




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 invitational travel orders
be issued by competent authority for the purpose of evaluation by a Medical
Evaluation Board (MEB) and a Physical Evaluation Board (PEB).

      It is further directed that the results of the evaluation be
forwarded to the Air Force Board for Correction of Military Records at the
earliest practicable date so that all necessary and appropriate actions may
be completed.







  JOE G. LINEBERGER

  Director

  Air Force Review Boards Agency