ADDENDUM TO
                            RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2000-00132
            INDEX CODE:  108.01, 110.02
                         122.01
            COUNSEL:  Mr. Michael J. Calabro

            HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

His record be corrected to reflect continued  active  duty  between  January
1998 and the present, pending a physical examination.

In the alternative, applicant requests:

1.  He be constructively placed on the  Temporary  Disability  Retired  List
(TDRL) between January 1998 and January 2003.

2.  He receive TDRL payment at the 50% rate.

3.  His disability rating be greater than or equal to 30%.

4.  His PEB be treated as a final TDRL reevaluation.

_________________________________________________________________

APPLICANT CONTENDS THAT:

1.  His Physical Evaluation Board (PEB) rating should  be  prospective,  not
retrospective.

2.  The PEB was unable to do  an  accurate  reconstruction  of  his  medical
condition in January 1998 due to the lack of a physical examination  and  an
incomplete and inaccurate medical record.

_________________________________________________________________

STATEMENT OF FACTS:

On 27  Sep  99,  the  applicant  submitted  an  application  to  the  AFBCMR
requesting the following:

1.  His Not In Line of Duty (NLOD)  determination,  and  all  documents  and
references to the NLOD be removed from his records.

2.  His request for transfer to the Retired Reserves  be  removed  from  his
records.

3.  He be returned to duty for evaluation  by  a  Medical  Evaluation  Board
(MEB).

4.  He receive  all  back  pay,  incapacitation  pay,  retirement  pay,  and
allowances due him.

5.   He receive longevity credit for the period he is returned to duty.

6.  He be reimbursed for all medical care and medical insurance premiums  he
as incurred.

7.  If medically retired, he be provided the opportunity to  participate  in
the Survivor Benefit Plan (SBP).

On 6 Feb 01, the Board considered the applicant's requests  and  recommended
that 1) His records be corrected to reflect that his injuries were found  to
be "In Line of Duty" and that all documents pertaining  thereto  be  amended
to reflect such.  2) A review of his records be  conducted  at  the  nearest
medical treatment facility to determine if his medical condition, as  of  25
Jan 98, disqualified him for continued active duty and if referral to a  MEB
is appropriate; and if so, the results  of  the  MEB  be  forwarded  to  the
AFBCMR.  3)  If  a  review  determines  MEB  is  appropriate  he  be  issued
Invitational  Travel  Orders  for  the  purpose  of  undergoing  a  physical
examination and review by MEB and PEB to determine his medical condition  as
of 25 Jan 98, and the  results  be  forwarded  to  the  AFBCMR.   The  Board
further determined that as a result of the LOD determination  the  applicant
should be eligible to  receive  incapacitation  pay  and  reimbursement  for
medical expenses, but that he must submit the proper  documentation  to  the
appropriate agencies for determination.

For  an  accounting  of  the  facts  and   circumstances   surrounding   the
applicant’s requests and the  rationale  of  the  earlier  decision  by  the
Board, see the Record of Proceedings at Exhibit H.

An MEB was convened on 5 Jun 02 and referred  the  applicant's  case  to  an
Informal Physical Evaluation Board (IPEB)  with  a  diagnosis  of  low  back
pain.  On 15 Oct 02, the IPEB found him unfit for further  military  service
based on a diagnosis  of  chronic  low  back  pain  and  recommended  he  be
discharged with severance pay with a compensable rating of 10 percent.   The
applicant did not agree with the findings  and  recommended  disposition  of
the IPEB.  On 9 Jan 03, a Formal PEB (FPEB)  found  him  unfit  for  further
military service based on  a  diagnosis  of  chronic  lower  back  pain  and
recommended he be discharged with severance pay with  a  compensable  rating
of  10  percent.   The  applicant  did  not  agree  with  the  findings  and
recommended disposition of the FPEB.  In his rebuttal, the applicant  stated
that since physical examination requirements  were  not  complied  with,  no
record of his disability exists and  his  separation  in  January  1998  was
improper.  He should have been returned to active  duty  pending  completion
of medical examinations, or  constructively  placed  on  the  TDRL  and  the
January 2003 FBEP should be considered a TDRL reevaluation.  On 14  Mar  03,
SAF/PC determined that the applicant should  be  discharged  with  severance
pay with a disability rating of 10 percent based on 13 years  and  8  months
of creditable service and published orders to that effect directing that  he
be discharged effective  5  May  03.   On  7 Apr  03,  applicant  signed  an
Election  Regarding  Transfer  to  Inactive  Status  List  Reserve   Section
statement indicating that he elected to be  discharged  with  severance  pay
rather than transfer to the Inactive Status List  Reserve  Section  for  the
purpose of applying for retirement and receiving retired pay  upon  becoming
60 years of age.  On 15 Jul 03, applicant was paid disability severance  pay
in the amount of $156,470 by the Air Force Reserve pay section.

In previous consideration of his application, the Board  directed  that  the
results of the MEB and PEB actions be forwarded to the AFBCMR  for  a  final
determination.  That portion of the Board's directive was not  carried  out.
On 30 Jun 03 and on 4 Aug 03, the Defense  Finance  and  Accounting  Service
(DFAS) and applicant's counsel, respectively, were notified that action  was
not authorized on the PEB recommendation until  a  final  determination  has
been rendered by the AFBCMR.

In his most recent submission,  counsel  contends  that  after  a  long  and
unexplained delay, the Air Force  Reserves  (USAFR)  began  its  attempt  to
comply with the AFBCMR's order in the summer of 2002.  The PEB was  held  on
9 Jan 03.  The USAFR  did  not  properly  correct  the  applicant's  medical
record.  The AFBCMR ordered that his record be restored to the  position  it
should have been in if the law and regulations had been obeyed.  Instead  of
carrying out the Board's  order,  the  USAFR  did  nothing.   The  applicant
attempted to stimulate action, but no action was taken to  comply  with  the
AFBCMR's order.  The applicant had no choice but to  file  suit  in  Federal
Court.  That litigation was temporarily discontinued with  an  agreement  to
begin the administrative process and hold a PEB and pay the  petitioner  the
monies he is owed.  As of  this  date  his  record  has  not  been  properly
corrected nor  has  he  been  paid  one  cent  of  the  thousands  owed  him
[applicant  received   disability   severance   pay   subsequent   to   this
application].  Instead of properly correcting his military  record  to  have
it appear, as it should have, the USAFR  simply  placed  a  single  page  of
paper in his record.  Prior to review of his medical records by a doctor  at
Edwards AFB the applicant  demanded  and  was  afforded  an  opportunity  to
review his medical records  for  completeness  and  accuracy.   He  found  a
number of pages and entries had been removed  and  erroneous  entries  which
should have been removed were still in  the  file.   The  USAFR  refused  to
correct his record and his PEB was conducted with an erroneous record.   The
USAFR also refused to  give  the  applicant  a  physical  examination.   The
applicant’s complete submission, with attachments, is at Exhibit I.

_________________________________________________________________
AIR FORCE EVALUATION:

AFRC/DPM states that there is no provision  in  law  that  would  allow  the
applicant to be retained on active duty between  January  1998  and  January
2003.  In compliance with the AFBCMR's previous findings  and  the  decision
of the Secretary, his retirement has been revoked and  his  military  record
has been updated to reflect discharge with severance  pay  effective  5  May
03.  Regarding his incapacitation pay determinations,  he  is  eligible  and
entitled to incapacitation pay for an initial 6-month period from 12 Jun  93
through 11 Dec 93 and additional potential entitlement  periods.   The  time
periods in question include both periods in which the  member  was  fit  for
duty and those when the applicant was  determined  to  be  unfit  for  duty.
Since the resolution of his new  request  will  impact  any  calculation  of
incapacitation pay to which he might be entitled for periods  commencing  25
Jan 98, DPM cannot assess until resolution of  this  pending  Board  action.
This evaluation, with attachments, is at Exhibit J.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel states that no one has been held accountable for the actions,  which
formed the basis for the application for correction of military records  and
for failure to obey the AFBCMR's direction.  The DPM memorandum admits  that
he was recalled from his placement on the Retired Reserve on 17 Aug  01  and
discharged on 5 May 03.  As such, he is entitled  to  active  duty  pay  for
that period, which to date he has not been paid.  The PEB decision  and  the
direction by the Secretary of  the  Air  Force  to  implement  it  partially
corrected the applicant's record in accordance  with  the  AFBCMR  decision.
The PEB cites difficulties in making complete decisions due to  the  passage
of time.  That passage of time is entirely attributable  to  the  errors  of
the USAFR, which were corrected by the AFBCMR's decision.  If  not  for  the
errors, the applicant's separation for medical disability  would  have  been
timely and four options would  have  been  available  in  January  1998  (1)
separation with severance pay, (2) placement on  the  TDRL,  (3)  continuing
incapacitation pay pending the PEB, and (4)  maintaining  the  applicant  on
active duty status with limitation of duty orders, pending PEB.   Under  the
circumstances, exercising option 4 is what  would  normally  happen  and  is
just.  He was separated in January 1998 without  a  required  physical  exam
based on a fraudulent LOD investigation.  In addition,  the  erroneous  NLOD
determination denied the applicant Department of Veterans Affairs  benefits.
 Those benefits are not recoverable at this late date.  Justice requires  he
be placed in a status which would most closely afford him  the  benefits  to
which he was entitled for the full  time  they  were  denied  to  him.   His
complete submission, with attachments, is at Exhibit L.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  Sufficient relevant evidence of an error or injustice exists  warranting
his entitlement to severance pay.  In previous consideration of  this  case,
the  Board  recommended  that  the  applicant's  "Not  In  Line   of   Duty"
determination be corrected to reflect that his injuries  were  found  to  be
"In Line of Duty" and that a review of his medical records be  performed  by
medical authorities to determine if his medical conditions,  as  of  25  Jan
98, would have disqualified him for continued military service.  A  PEB  was
conducted on 9 Jan 03, and it was recommended that  he  be  discharged  with
severance pay with a disability rating of 10  percent.   The  Board  further
directed that after DES processing his case be returned to the Board  for  a
final  determination.   However,  their  recommendation  was   inadvertently
forwarded to the Secretary of the Air Force, Personnel Council (SAF/PC)  for
disposition.  SAF/PC, reviewed the applicant's case and concurred  with  the
recommended disposition of the PEB and directed that he be  discharged  with
severance pay with a disability rating of 10 percent.  Since  the  applicant
was not in an active status, however, there is some  doubt  whether  or  not
the actions by the SAF/PC were legally sufficient.

2.  Applicant requests that he be constructively placed on the TDRL  between
January 1998 and January 2003, his disability  rating  be  greater  than  or
equal to 30 percent, and that his  PEB  be  treated  as  a  final  TDRL  re-
evaluation.  In addition, applicant  contends  that  had  his  records  been
correct in 1998, the most probable action that  would  have  occurred  would
have been his continuance on active duty in a limited duty  status,  pending
a PEB.  We carefully considered his argument, and  we  do  not  fully  agree
with his contentions.  Evidence has not been presented which would  lead  us
to believe that the applicant's condition warranted a  rating  greater  than
the rating recommended by the PEB.  We see no evidence of error in  the  PEB
evaluation process nor are we persuaded that an injustice  has  occurred  in
his rating determination.  In light of the circumstances of  this  case  and
taking into consideration  the  lack  of  timeliness  in  carrying  out  the
Board's previous decision, it remains  our  position  that  the  proper  and
fitting action which remains to be made is to correct his record  as  though
he was processed through the DES in 1998.  As such it is  our  opinion  that
correction of his record to reflect that he was  discharged  with  severance
pay, effective 25 Jan 98, is the appropriate action.  We are aware that  the
applicant has already received  severance  pay  based  on  the  decision  of
SAF/PC.  Therefore, our decision merely reaffirms  his  entitlement  to  the
severance pay that was inadvertently granted by  SAF/PC  and  precludes  the
questioning of the propriety of this payment in the future.   Therefore,  we
recommend that his records be corrected as indicated below.

3.  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 issues involved.   Therefore,  the  request  for  a
hearing is not favorably considered.

_________________________________________________________________

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 24 January 1998, he was found unfit to perform  the  duties  of
his office, rank,  grade,  or  rating  by  reason  of  physical  disability,
incurred while he was entitled to receive basic pay; that the  diagnosis  in
his case was chronic low back pain DVA diagnostic code 5295, rated  at  10%;
that the compensable percentage was 10%; that the degree of  impairment  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  a  direct  result  of
armed conflict or caused by an instrumentality of war.

      b.  On 25 January 1998,  his  name  was  not  placed  on  the  Retired
Reserve List, but on that date he was  honorably  discharged  by  reason  of
physical disability, with entitlement to disability severance pay.

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number  BC-2000-
00132 in Executive Session on 10 Dec 03, under the  provisions  of  AFI  36-
2603:

      Ms. Patricia D. Vestal, Panel Chair
      Mr. E. David Hoard, Member
      Mr. Albert Ellett, Member

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

    Exhibit H.  Record of Proceedings, dated 6 Feb 01, w/atchs.
    Exhibit I.  Letter, Applicant, not dated.
    Exhibit J.  Letter, AFRC/DPM, dated 15 Jul 03.
    Exhibit K.  Letter, SAF/MRBC, dated 4 Aug 03.
    Exhibit L.  Letter, Counsel, not dated.




                             PATRICIA D. VESTAL
                                             Panel Chair

AFBCMR BC-2000-00132




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 24 January 1998, he was found unfit to perform the
duties of his office, rank, grade, or rating by reason of physical
disability, incurred while he was entitled to receive basic pay; that the
diagnosis in his case was chronic low back pain DVA diagnostic code 5295,
rated at 10%; that the compensable percentage was 10%; that the degree of
impairment 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 a direct
result of armed conflict or caused by an instrumentality of war.

            b.  On 25 January 1998, his name was not placed on the Retired
Reserve List, but on that date he was honorably discharged by reason of
physical disability, with entitlement to disability severance pay.





                                        JOE G. LINEBERGER
                                        Director
                                        Air Force Review Boards Agency