RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2002-01056 (Case 2)
            INDEX CODE:  110.00

            COUNSEL:  DAV

            HEARING DESIRED:  NO


_________________________________________________________________

APPLICANT REQUESTS THAT:

His disability rating of 20 percent be increased; that he be placed on
the Temporary Disability Retired List (TDRL) effective 18 Nov 91; and,
that he be permanently retired effective 18 Nov 91.
_________________________________________________________________

APPLICANT CONTENDS THAT:

His rating at the time of separation from the ANG should have been  30
percent based on the civilian orthopedic  surgeon’s  Oct  91  opinion.
Pertinent medical records or evidence were not sent  to  the  Informal
Physical Evaluation Board (IPEB).

In support of his request, the applicant submits a personal statement,
copies of a letter from the civilian orthopedic surgeon, AF  Form  618
(Medical Board Report), NGB Form 22  (NGB  Report  of  Separation  and
Record of Service), VA letter of 11 Dec 89, and DVA Rating of  17  Oct
95.  The applicant’s complete  submission,  with  attachments,  is  at
Exhibit A.
_________________________________________________________________

STATEMENT OF FACTS:

Applicant contracted his enlistment in the Regular Air Force on 17 Jul
81.  He reenlisted in the Regular Air Force for a period of 6 years on
1 Jul 85.  The applicant was progressively promoted to  the  grade  of
staff sergeant (E-5).  On 3 Jul 89, he was honorably discharged  under
the provisions of AFR 39-10 (Volunteered to Serve with ANGUS).  He had
completed a total of 7 years, 11 months and 17 days and was serving in
the grade of E-5 at the time of discharge.

Applicant enlisted in the TN Air National Guard (ANG) on 2 Oct 89.  He
received an honorable discharge from the TN ANG and Reserve of the Air
Force on 18 Nov 91 under the provisions  of  ANGR  39-10  (Chapter  7,
paragraph 7-1a, Medical Disqualification).  He had completed  a  total
of 2 years, 1 month and 16 days  and  was  serving  in  the  grade  of
sergeant (E-4) at the time of discharge.

In 1992, applicant applied to the Air Force Board  for  Correction  of
Military Records (AFBCMR) requesting a medical discharge  and  related
benefits since his disability was incurred while on active  duty.   On
20 Apr 94, the Board approved his application  recommending  that  his
records be corrected to show that, on 18 Nov 91, he was found unfit to
perform the duties of his office, rank, grade or rating by  reason  of
physical disability, incurred while entitled  to  receive  basic  pay,
with the VA diagnostic code of 5257, rated at  20  percent,  that  the
degree of impairment was permanent; and, that he be  discharged  under
the provisions of AFR 35-4, with entitlement to  disability  severance
pay.  A copy of the Record of Proceedings  (ROP),  Docket  Number  93-
02726, is at Exhibit B.

The 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.

The Department of Veteran’s Administration records  reflect  that  the
applicant was granted a 20 percent disability rating.
_________________________________________________________________

AIR FORCE EVALUATIONS:

The AFBCMR Medical Consultant recommends the  application  be  denied.
The AFBCMR Medical Consultant stated that the applicant entered active
duty 17 Jul 82 and was honorably discharged from the Regular Air Force
on 3 Jul 89 due to voluntary “Palace Chase” early discharge  to  enter
the Air National Guard (ANG).  The applicant enlisted in the ANG on  4
Jul 89 and served from 9 Oct 89 to 18 Nov 91.

The AFBCMR Medical Consultant stated that the  applicant  injured  his
left knee twice on active duty while  engaging  in  sports  activities
that resulted in a tear of his anterior  cruciate  ligament  producing
instability (abnormal movement) of the joint, and a  partial  team  of
his medical meniscus (cartilage between the bones  that  adds  to  the
stability of joint motion).  The applicant underwent surgical repair 1
Jan 85 of his injuries and remained on active duty with some  physical
restrictions (running and lifting  over  70  pounds)  due  to  ongoing
symptoms of discomfort and giving way.  There are no  service  medical
record entries in over 12 months prior to his Palace Chase  separation
from the Regular Air Force to indicate the applicant was  experiencing
any difficulties with his left knee.  Because his knee interfered with
performance of the aerobics  test,  the  ANG  discharged  him  due  to
medical disqualification.  Following discharge from  the  Regular  Air
Force, the Department of Veterans Affairs (DVA) awarded the  applicant
a 10 percent disability rating for  his  left  knee  and  subsequently
increased it to 20 percent.

The applicant contends that his rating at the time of separation  from
the ANG should have been 30 percent based on the  civilian  orthopedic
surgeon’s Oct 91 opinion.  The  AFBCMR  Medical  Consultant  indicated
that the civilian orthopedic surgeon suggested  that  the  applicant’s
knee condition  was  a  total  of  30  percent  disability  by  adding
(“pyramiding”) three  abnormalities  together.   The  VA  Schedule  of
Rating Disabilities (VASRD) rating of impairments of the knee does not
list all possible anatomic abnormalities that  can  affect  the  knee;
rather the rating is based on overall functional  impairment.   Adding
up percentages from multiple abnormalities of a  single  extremity  is
called pyramiding and is not allowed by the VASRD.  The most severe of
the abnormalities is rated.  At  the  time  of  the  most  recent  DVA
examination available for review, 24 Apr 02, there is no evidence that
the applicant’s knee condition is  any  more  disabling  than  the  20
percent awarded by the DVA.

The AFBCMR Medical Consultant stated that, at the time  of  separation
from active duty with the Regular Air Force, the applicant’s left knee
condition was not “unfitting” for continued active  military  service.
Applicant’s knee condition was not the reason he left active duty with
the Regular Air Force.  The applicant’s chronic  condition  interfered
with performance of  the  aerobics  test,  but  was  not  incurred  or
aggravated while on active duty in the ANG; thus, he was not  eligible
for disability compensation  from  the  Air  Force.   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, USC and  Title
38 USC.  The applicant’s  condition  did  not  render  him  unfit  for
continued military service while he was on active duty in the  Regular
Air  Force.   Subsequently,  his  condition  disqualified   him   from
continued service in the ANG.  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 decision to process an individual through the military  disability
evaluation system (DES) is determined by an MEB  when  he  or  she  is
determined medically disqualified for continued military service.  The
decision to conduct an MEB is made by the medical  treatment  facility
providing health care to the  member.   Air  Reserve  Component  (ARC)
members who undergo disability processing through the  Air  Force  DES
must meet eligibility requirements of AFI 36-3212,  Chapter  8.   DPPD
stated that a physical examination conducted on 13  Mar  89,  for  his
anticipated discharge and entry into the ANG, indicates the  applicant
was medically qualified for worldwide service.  In view  of  the  fact
that the applicant’s left knee injury was  acquired  while  on  active
duty, his condition would be considered as  having  existed  prior  to
service once he entered the ANG.  Individuals who enter  the  ANG  are
required from that point to meet their medical accession standards.  A
Medical Evaluation Board (MEB) was initiated by the ANG on 9 Jun 91 in
which the  National  Guard  Bureau  Air  Surgeon’s  Office  found  the
applicant medically disqualified for continued service for an Anterior
Cruciate Deficient Knee.  Additionally, the MEB was not  forwarded  to
the Informal Physical Evaluation Board (IPEB) for adjudication of  the
case.  The applicant was subsequently  discharged  from  the  ANG  for
failing to meet ARC medical standards.

DPPD stated that medical records reflect the applicant was treated for
various medical conditions throughout his military career.   The  fact
that a person may have been treated for a specific  medical  condition
does not automatically mean it  is  unfitting  for  military  service.
DPPD indicated that military disability laws and policy stipulate that
USAF disability boards can  only  rate  unfitting  medical  conditions
based upon the individual’s status at the time of his  evaluation;  in
essence, a snapshot of their condition at the time.   Records  clearly
show the applicant was reasonably capable of performing  his  military
duties right up until the time of his  voluntary  separation  and  his
active duty military career was not cut short as a result of his  knee
problem.

DPPD’s examination of the applicant’s case file found no rationale  or
grounds why his records should be amended to reflect he was awarded  a
discharge or retirement under the military disability laws and policy.
 DPPD wholeheartedly  agrees  with  the  AFBCMR  Medical  Consultant’s
evaluation.  The applicant has not submitted any documentation to show
an injustice occurred at the time of his release from active duty  and
subsequent medical disqualification from the ANG.   The  HQ  AFPC/DPPD
evaluation is at Exhibit D.
_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

The applicant reviewed the advisory opinions and provided a  point-by-
point reply.  Refer to  the  applicant’s  response  for  his  detailed
comments.  The applicant’s complete submission, with  attachments,  is
at Exhibit F.
_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

The additional advisory opinion is provided following  review  of  the
previous AFBCMR action granting  the  applicant  disability  discharge
from the Air National Guard (ANG), with severance pay  at  20  percent
for his knee condition.

The AFBCMR Medical Consultant states, that  following  discharge  from
the Regular Air  Force,  the  Department  of  Veterans  Affairs  (DVA)
awarded the applicant a 10 percent disability rating for his left knee
and subsequently increased it to 20 percent.  After reviewing  the  24
Apr 02 DVA examination, there is no evidence that the applicant’s knee
condition is any more disabling than the 20 percent awarded by the DVA
and the stable DVA rating over 10 years  is  evidence  that  his  knee
condition was stable as defined  by  DoD  policy.   Placement  on  the
Temporary Disability  Retired  List  (TDRL)  requires  that  both  the
disability rating be at least 30 percent and  that  the  condition  be
unstable such that it is likely that a  different  disability  rating,
either higher or  lower  would  result  over  5  years.  There  is  no
indication that the applicant’s condition would have  been  awarded  a
higher rating than 20 percent.  The AFBCMR Medical  Consultant  is  of
the opinion that no change in the records is  warranted.   The  AFBCMR
Medical Consultant’s evaluation is at Exhibit G.
_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

The applicant reviewed the advisory opinion and stated that his  legal
rights were violated because no medical evaluation was  performed  and
his right to counsel or appeal was not allowed.   He  has  provided  a
synopsis of his medical treatment subsequent  to  his  discharge.   He
indicated that the Medical Evaluation Board (MEB)  did  not  have  the
authority to declare him unfit.  Because of the  violations  of  legal
rights, the unstable nature of the injury could not be  presented  for
evaluation.  This leads to the fact that the injury could not  legally
be declared as stable and  the  disability  percentage  could  not  be
reviewed.  He indicates that, if the injury  is  determined  unstable,
then the member is eligible for placement on the Temporary  Disability
Retirement List (TDRL).  If the injury is determined to be 30 percent,
the member is eligible  for  retirement.   Refer  to  the  applicant’s
response for his  detailed  comments  concerning  the  issue(s)  under
review.  The applicant’s complete submission is at Exhibit I.
_________________________________________________________________

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.  After a thorough review  of  the
evidence of record and applicant’s submission, we are unpersuaded that
relief should be granted.  Applicant’s  contentions  are  duly  noted;
however, we do not  find  these  assertions,  in  and  by  themselves,
sufficiently persuasive to override  the  rationale  provided  by  the
respective Air Force offices.  In our view, the issues raised  in  the
submission  have  been  adequately  addressed  by  the  BCMR   Medical
Consultant.  We have seen no persuasive evidence by the applicant that
would lead us to believe that his medical condition  would  have  been
awarded a higher rating than 20  percent  at  the  time  of  his  1991
separation.    We,   therefore,   agree   with   the   opinions    and
recommendations of the BCMR Medical Consultant 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.  Furthermore, we have seen no persuasive evidence that  the
finding that he was physically unfit at the time permanent disposition
was made was contrary to the provisions of the  governing  regulation,
which implements the  law.   In  view  of  the  foregoing  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 8 May 03, under the provisions of AFI 36-2603:

                  Mr. Thomas S. Markiewicz, Vice Chair
                  Ms. Cheryl Jacobson, Member
                  Mr. James W. Russell III, Member

The following documentary evidence was considered in  connection  with
AFBCMR Docket Number BC-2002-01056.

   Exhibit A.  DD Form 149, dated 15 Mar 02, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, BCMR Medical Consultant, dated 21 Aug 02.
   Exhibit D.  Letter, HQ AFPC/DPPD, dated 26 Sep 02
   Exhibit E.  Letter, SAF/MRBR, dated 4 Oct 02.
   Exhibit F.  Response from Applicant, undated, w/atchs.
   Exhibit G.  Letter, BCMR Medical Consultant, dated 21 Mar 03
   Exhibit H.  Letter, AFBCMR, dated 1 Apr 03.
   Exhibit I.  Letter from Applicant, dated 11 Apr 03, w/atchs.




                                   THOMAS S. MARKIEWICZ
                                   Vice Chair