RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  02-01544
            INDEX CODE:  110.00

            COUNSEL:  DVA

            HEARING DESIRED:  NO


_________________________________________________________________

APPLICANT REQUESTS THAT:

His length of service retirement be changed to a permanent retirement,
with a 40 percent disability rating.
_________________________________________________________________

APPLICANT CONTENDS THAT:

He is unable to perform  any  military  duties  as  a  result  of  the
injuries incurred while on active duty.  He should have  been  retired
with a permanent disability of 40 percent.

In support of his request, the  applicant  submits  a  statement  from
counsel.  The applicant’s complete submission, with attachment, is  at
Exhibit A.
_________________________________________________________________

STATEMENT OF FACTS:

The applicant’s Total Active Federal Military Service Date (TAFMSD) is
2 Dec 87.

The applicant  was  honorably  discharged  on  30  Jun  98  under  the
provisions  of  AFI  36-3208   (Miscellaneous/General   Reasons)   and
transferred to the Air Force Reserve.  He completed 1 year  of  active
service this period and was serving in  the  grade  of  senior  master
sergeant (E-8) at the time of discharge.  He had completed a total  of
9 years, 6 months and 29 days prior active service; and, 14 years,  11
months and 14 days of prior inactive service.

Effective 1 Jul 98,  the  applicant  was  relieved  from  his  current
assignment (HQ ARPC/NARS-A),  and  assigned  to  the  Retired  Reserve
Section and his name was placed on the Reserve Retired List,  awaiting
pay.

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 AFBCMR Medical Consultant recommends the  application  be  denied.
The AFBCMR Medical Consultant states that  the  applicant  slipped  on
stairs while at work on extended active duty  and  injured  his  right
shoulder.  Evidence in the medical record  shows  that  the  applicant
experienced persistent pain with use of  the  shoulder  that  did  not
appear to have interfered with his duties, and he proceeded  with  his
planned  retirement  from  the  reserves.   Following  discharge,  the
applicant applied to the VA and received disability  compensation  for
his service connected shoulder problem that  has  apparently  worsened
over  time.   The  applicant   underwent   his   retirement   physical
examination on 12 May 98 and indicated  that  health  was  good.   The
orthopedic examination, on 26 May 99, documented nearly  normal  range
of motion ROM, and pain of the acromio-clavicular joint  felt  related
to degenerative joint disease  (a  chronic  condition  that  the  fall
aggravated, and not necessarily caused). The retirement  medical  exam
mentioned the shoulder pain and determined that there were no  medical
conditions that would have required disability processing.  No mention
of back pain (now 10% rated by the VA) was made in the service medical
record related to the fall.  There is no evidence in the  record  that
shoulder pain interfered with performance of military duty or made him
unfit for duty at the time of retirement.  The applicant’s  retirement
was voluntary, and not caused by his shoulder problem.  The reason the
applicant could be fit for duty despite  the  presence  of  a  medical
problem and later be granted a service-connected disability by the DVA
lies in understanding the differences between Title  10,  U.S.C.,  and
Title 38, U.S.C.  The AFBCMR Medical Consultant stated that the action
and disposition in this  case  are  proper  and  equitable  reflecting
compliance with Air Force directives  that  implement  the  law.   The
AFBCMR Medical Consultant’s evaluation is at Exhibit C.


HQ AFPC/DPPD recommends the application be denied.  DPPD  stated  that
the applicant’s military records confirm he was never referred through
the Air Force Disability Evaluation System (DES).  The purpose of  the
military DES is to maintain a fit and vital  force  by  separating  or
retiring members who are unable to perform the duties of their office,
grade, rank or rating.  The decision to conduct a  Medical  Evaluation
Board (MEB) is made by the medical treatment facility providing health
care to the member.   Although  the  applicant’s  retirement  physical
shows he was being treated for a  shoulder  pain,  records  failed  to
reveal any major or life threatening  medical  conditions  that  would
have  warranted  he  be  referred  through  the  DES.   Following  his
retirement examination, the applicant  was  found  fit  for  worldwide
duty, with no disqualifying physical profiles.  Medical  records  show
that the applicant was treated for various medical  conditions  during
his military career.  The fact that a person may have been treated for
a medical condition does not automatically mean that the condition  is
unfitting  for  military  service.   To  be  unfitting,  the   medical
condition must be such that it, by itself, prevents  the  member  from
fulfilling the purpose for which he or she is employed.  The Air Force
and DVA disability systems operate under separate laws.  Under the  AF
system (Title 10, USC), Physical Evaluation Boards must determine if a
member’s medical condition renders them unfit for duty.   The  DAV  is
chartered to provide continual medical care  for  veterans  once  they
leave active duty.  Under Title 38,  USC,  the  DVA  may  increase  or
decrease a member’s service-connected disability rating based  on  the
seriousness of the medical condition throughout his or her life  span.
DPPD stated that the fact that the DVA initially awarded the applicant
a disability rating of 30 and later increased it to  40  percent  does
not entitle him to a military retirement or discharge.  The  applicant
would have had to  been  rated  with  a  service-connected  disability
rating of at least 30 percent from an MEB/PEB  with  the  USAF  to  be
entitled to a military retirement.  Nothing in the applicant’s records
reflects he has ever  met  this  criterion.   The  applicant  has  not
submitted any material or documentation to show an injustice  occurred
at the time of his release from active duty and  subsequent  placement
on the USAF Reserve Retired List.  The HQ AFPC/DPPD evaluation  is  at
Exhibit D.
_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel  reviewed  the  advisory  opinions  and  indicated  that   the
applicant has a permanent disability and  was/is  unfit  for  military
duty.  Counsel stated that the applicant was not given the opportunity
to appear before a Medical Board and if he had been, his  disabilities
would have been  evaluated  properly.   In  accordance  with  accepted
medical principles, the applicant’s shoulder disability  is  permanent
and will never improve and he should have been discharged  with  a  30
percent disability.  His back and neck disability are directly related
to his fall down a flight of stairs at the time of  the  accident  and
are permanent; therefore, the combined rating should be considered  as
a 40 percent permanent disability for retirement.  Counsel’s  complete
submission is at Exhibit F.
_________________________________________________________________

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 probable error or injustice.  We took notice  of  the
applicant's complete submission in judging the  merits  of  the  case;
however, we  agree  with  the  opinions  and  recommendations  of  the
respective Air Force offices and adopt the rationale expressed as  the
basis for our decision that the applicant has failed  to  sustain  his
burden that he has suffered either an error or an injustice.  In  view
of the  above  and  absent  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  this  application  in
Executive Session on 31 October 2002, under the provisions of AFI  36-
2603:

                  Ms. Charlene M. Bradley, Panel Chair
                  Mr. John E. B. Smith, Member
              Mr. Frederick R. Beaman III, Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 3 May 02, w/atch.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFBCMR Medical Consultant, dated
               17 Jun 02.
   Exhibit D.  Letter, HQ AFPC/DPPD, dated 18 Jul 02.
   Exhibit E.  Letter, SAF/MRBR, dated 26 Jul 02.
   Exhibit F.  Letter from Counsel, dated 23 Aug 02.




                                   CHARLENE M. BRADLEY
                                   Panel Chair