RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2002-03604,
                       INDEX CODE:  108.00
      APPLICANT  COUNSEL:  None

      SSN        HEARING DESIRED:  No

_________________________________________________________________

APPLICANT REQUESTS THAT:

His records be corrected to allow  him  to  receive  compensation  for
permanent injuries he sustained while on active duty.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The Air Force did not evaluate the spine and neck injuries he received
in the performance of his official duties.

Applicant's complete submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant entered Regular Air Force  on  2  December  1957  for  a
period of four years as an airman basic.

During the applicant’s military career he was treated for a variety of
conditions.  A review of his medical records reflects he presented  to
the clinic on 6 September 1973 for acute back pain to the right lumbar
area radiating to his knee with tingling sensation of the right  toes.
The applicant was  hospitalized  with  bed  rest  and  traction.   The
applicant was again hospitalized on 30 January 1974 through  30  April
1974 for evaluation of his diffuse spine pain.  A myelogram (injection
of x-ray contrast into the spinal canal allows detection of  herniated
discs and other conditions with x-rays) was attempted  on  4  February
1974.  A second myelogram  was  performed  on  12  February  1974  and
detected a small defect of L5 on the right.  The applicant was treated
with a Depro-Medrol (steroid) injection with good results.   Prior  to
be being discharged from the hospital the applicant was  evaluated  by
Neurosurgery and  it  was  recommended  his  conservative  therapy  be
continued.  On 25 April 1974 a request was made for cross training for
the applicant.  The applicant was discharged from the hospital  on  30
April 1974 with a permanent profile of L3.  The applicant had a follow
up appointment at the orthopedic clinic on 3 July 1974 and  the  visit
reflected he was doing well without back pain except for cold weather.


A 10 September 1974 clinic note reports the applicant was experiencing
mild back pain that was relieved with Tylenol.  The applicant, at a  5
December 1974 orthopedic visit, complained of continued back pain, but
revealed he was not performing his back exercises.  The applicant  was
referred  to  physical  therapy.   Physical  therapy   evaluated   the
applicant on 10 and 11 December 1974.  They recommended daily therapy.
 A 18 December  1974  physical  therapy  record  entry  indicates  the
applicant did not show up  for  his  appointments  after  his  initial
evaluation.  The applicant was treated on 30 January 1975 for a  flare
up of back pain.

The applicant’s term of enlistment was expiring in September 1975.  He
underwent his separation physical on 30  July  1975.   The  separation
physical documented his history of herniated  nucleus  pulposus  which
required limitation of duty including not lifting, climbing,  twisting
or aerobics.  The applicant  was  wearing  a  back  brace  and  taking
Darvon.  There was no indication of neck pain listed on the separation
physical.  The physician determined the applicant’s condition did  not
warrant  evaluation  by  the  disability  system,  but  referred   the
applicant for evaluation and opinion by Neurosurgery and  Orthopedics.
On 30 July 1975, Neurosurgery determined the applicant  had  a  2-year
history of recurrent back pain.  The examination revealed no  weakness
or muscle atrophy.   Reflexes  were  normal  and  there  was  abnormal
sensation involving the left foot and leg to the knee.  The  Neurology
Clinic note indicated  no  evidence  of  radiculopathy  and  that  the
applicant’s pain was mostly non-specific musculoskeletal pain; it  was
felt that  there  was  no  lumbar  disc  protrusion.   The  Orthopedic
evaluation was performed on 13 August 1975  and  determined  that  the
applicant could be separated routinely.

The applicant’s personnel files indicate the applicant was transferred
from aircraft maintenance to the administrative duties after  27  June
1974.

Applicant’s EPR profile as a staff sergeant is listed below.

                 PERIOD ENDING          OVERALL EVALUATION

                   1 Aug 69                  9
                   1 Aug 70                  6
                  21 Jun 71                  8
                  10 May 72                  9
                  20 Mar 73                  8
                  15 Oct 73                  9
                  27 Jun 74                  9
                  26 Jun 75                  9

The applicant  was  voluntarily  discharged  in  the  grade  of  staff
sergeant on 19  September  1975,  after  completion  of  his  required
service.  He served 15 years, 11 months, and 28 days of active federal
military service.  The applicant had a 1 year, 9 month  and   19   day
break  in  service  from 2 December 1965  through 21 September 1967.

The applicant, after his  discharge,  applied  for  service  connected
disability compensation through the  Department  of  Veterans  Affairs
(DVA).  He was initially rated at 10 percent for his back  pain.   The
applicant underwent another DVA compensation examination  on  26  June
1999.  The examination documented degenerative arthritis of his joints
and there was no  mention  neck  pain.   On  4  August  1999  the  DVA
increased his rating  for  his  herniated  nucleus  pulposus  from  10
percent to 20 percent; and awarded him  10  percent  for  degenerative
joint disease of the hands, knees, and elbows, giving the applicant  a
combined rating of 30 percent.  The applicant currently has a combined
DVA disability rating of 40 percent.

_________________________________________________________________

AIR FORCE EVALUATION:

The Chief, Medical Consultant, AFBCMR, reviewed this  application  and
states the reason the applicant could be found fit for duty by the Air
Force and later be granted a service connected disability by  the  DVA
lies in understanding the differences in Title 10  USC  and  Title  38
USC.  Title 10 USC, Chapter 61 is the federal statue that charges  the
Service Secretaries with maintaining a fit and vital  force.   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.  The  presence  of  a  physical
defect  or  condition  does  not  qualify  the  servicemember  for   a
disability retirement or discharge.  The physical defect or  condition
must be severe enough to render the servicemember unfit for duty,  and
their military career must have been cut  short  due  to  the  service
connected  disability.   Congress  created  Title  38   because   they
recognized that servicemembers may acquire conditions that may not  be
unfitting at the time of  their  separation,  but  later  progress  in
severity and possibly may  alter  the  servicemember’s  lifestyle  and
employability.  Title 38 USC governs the DVA  compensation  system  in
awarding disability percentage ratings for  conditions  that  are  not
unfitting for military service.

The BCMR Medical Consultant further  states  the  disposition  of  the
applicant’s discharge was proper and equitable and in compliance  with
Air Force directives that implement the law and recommends denying the
applicant’s request.

A complete copy of the BCMR Medical Consultant evaluation is  attached
at Exhibit C.

HQ AFPC/DPPD states the medical disability evaluation system  is  used
to determine if the servicemember’s medical condition renders him  fit
or unfit for continued military service.  If the member’s condition is
found to preclude him from continuing on active duty, the law provides
appropriate compensation for the premature termination of the member’s
military career.  They further state that  under  military  disability
laws and policy, the boards can only  rate  those  medical  conditions
which make the member unfit for continued service at the time  of  the
medical evaluation.  The DVA 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 disability rating based on
the seriousness of the medical condition throughout his  or  her  life
span.  Furthermore, they concur with  the  BCMR  Medical  Consultant’s
advisory.  Therefore based on the evidence submitted  DPPD  recommends
denying the requested relief (Exhibit D).

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on
18 April 2003, for review and response.  As of this date, no  response
has been received by this office.

_________________________________________________________________

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 of timely file.

3.    Insufficient relevant evidence has been presented to demonstrate
the existence of error or injustice.  Applicant’s contentions are duly
noted; however, we agree with the opinions and recommendations of  the
Air Force and adopt their rationale as the basis  for  our  conclusion
that the applicant has not been the victim of an error  or  injustice.
Title 10, USC, Chapter 61 is  the  federal  statue  that  charges  the
Service Secretaries with maintaining a fit and vital  force.   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.  The  applicant  has  presented
insufficient evidence that he was not reasonably capable of performing
his duties in compliance with his office, grade, rank or rating  right
up until his release from active duty.   In  fact,  it  is  noted  the
applicant received the  highest  rating  available  on  his  last  two
performance reports, which would appear to confirm he  was  performing
his  military  duties  in  an  appropriate  manner.   However,  former
servicemembers are authorized treatment from DVA under the  provisions
of  Title  38,  USC.   Title  38,  USC  allows  the  DVA  to   provide
compensation  for  servicemembers  who  incurred  a  service-connected
medical condition while on active duty and to increase or decrease the
disability rating  based  on  the  seriousness  of  medical  condition
throughout the servicemember’s life span.  In this  respect,  we  note
the applicant currently has a combined DVA  disability  rating  of  40
percent.  Therefore, in the absence of 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 AFBCMR Docket Number BC-
2002-03604 in Executive Session on 8 July 2003, under  the  provisions
of AFI 36-2603:

                       Ms. Barbara A. Westgate, Chair
                       Mr. Roscoe Hinton, Jr., Member
                       Ms. Carolyn J. Watkins-Taylor, Member

The following documentary evidence was considered:

      Exhibit A. DD Form 149, dated 7 Nov 02.
      Exhibit B. Applicant's Master Personnel Records.
      Exhibit C. Letter, AFBCMR, Medical Consultant, dated
                       26 Feb 03.
      Exhibit D. Letter, HQ AFPC/DPPD, dated 9 Apr 03.
      Exhibit E. Letter, SAF/MRBR, dated 18 Apr 03.




                             BARBARA A. WESTGATE
                             Chair