RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  02-01206
            INDEX CODE:  108.02

            COUNSEL:  NONE

            HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

His disability rating at the  time  of  his  permanent  retirement  be
increased from 40 to 100 percent to correspond with current Department
of  Veterans  Affairs  (DVA)  and   Social   Security   Administration
evaluations.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Two different USAF Boards/Councils (Physical  Evaluation  Board  (PEB)
and  Physical  Review  Council  (PRC))  downgraded   his   psychiatric
diagnosis of severe to first  moderate  (50%)  and  then  to  definite
(30%).  He believes these actions were  particularly  unjust  in  that
these  Boards/Councils  had  no  psychiatric/medical  capabilities  or
responsibilities to change his psychiatric diagnosis.

In support of his request, the applicant submits a personal  statement
and additional documents associated  with  the  issues  cited  in  his
contentions.  The applicant’s complete submission,  with  attachments,
is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

On 27 May 1957, the  applicant  was  appointed  a  second  lieutenant,
Reserve of the Air Force, and  was  voluntarily  ordered  to  extended
active duty on 18 Aug 1957.  He was integrated into  the  Regular  Air
Force on 17 May 1960 and was progressively promoted to  the  grade  of
colonel, effective and with a date of rank of 6 Nov 1981.

A Medical Evaluation Board (MEB) was convened on 7 Feb 1983 and  their
diagnosis and findings were:   Acute  severe  bipolar  disorder  manic
type.  Degree of impairment: Marked for military service, definite for
civilian and industrial adaptability.  The MEB recommended referral to
the Informal Physical Evaluation  Board  (IPEB)  and  transfer  to  VA
Hospital.  Subsequent to being  evaluated  by  the  Informal  Physical
Evaluation Board (IPEB) and Formal Physical Evaluation  Board  (FPEB),
the applicant was released from active duty under  the  provisions  of
AFR 35-4 (Placed on Temporary Disability Retired List (TDRL)).  He was
serving in the grade of colonel, with 25 years, 9 months and  26  days
of active service for retirement at  the  time  of  his  release  from
active duty.  Effective 14 Jun 1983, the applicant’s name  was  placed
on the Temporary Disability Retired List  (TDRL),  with  a  disability
rating  of  70  percent.   Following  a  period  of  observation,  the
applicant’s name was removed from the TDRL by Special Order  No.  ACD-
1512, dated 12 Jun 1986; and, on 2 Jul 1986, he  was  retired  in  the
grade of colonel, with a compensable rating of 40 percent for physical
disability.  He was credited with a total of 26 years and 17  days  of
service for basic pay.

The Department of Veteran’s Administration records, dated 27 Jul 2000,
reflect that the applicant was granted a combined disability rating of
70 percent from 22 Jul 1999.

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 EVALUATIONS:

The AFBCMR Medical Consultant recommends the  application  be  denied.
The AFBCMR Medical Consultant stated that  the  applicant’s  name  was
placed on the Temporary Disability Retired List (TDRL) on 13 Jun  1983
as a result of the unfitting condition Manic Depressive Disorder, with
a disability rating of 70 percent.  Following a period of  observation
and treatment on TDRL status, he was permanently disability retired on
12 Jun 1986, with a disability rating of 40 percent for his  condition
and received pay in the grade  of  colonel,  with  over  26  years  of
service.

The AFBCMR Medical Consultant indicated that the fact the  applicant’s
disease was considered to be markedly improved, and in remission while
he was compliant with his lithium therapy, no doubt  heavily  factored
in the Formal Physical Evaluation Board’s  (FPEB)  decision.   Bipolar
disorder is marked by a course of relapses and remissions.   The  fact
that the applicant’s disease was in “remission” on medication  at  the
time of his final PEB  would  lead  some  to  conclude  that  a  lower
disability rating would be appropriate; however, because  the  disease
is chronic with relapses and remissions, the rating  rendered  by  the
PEB provides a level that accounts  for  this  variability.   Once  an
individual has  been  declared  unfit,  the  Service  Secretaries  are
required by law to  rate  the  condition  based  upon  the  degree  of
disability at the time of  permanent  disposition  and  not  upon  the
possibility of  future  events.   No  change  in  military  disability
ratings can occur after permanent disposition under the rules  of  the
military disability system,  even  though  the  condition  may  become
better or worse.  However,  Title  38,  USC,  authorizes  the  DVA  to
increase or decrease the  DVA  compensation  ratings  based  upon  the
individual’s condition at the time of future evaluations.

The AFBCMR Medical Consultant stated that  there  is  no  evidence  to
support a higher rating at the time  of  permanent  disposition.   The
applicant’s case was  properly  evaluated,  appropriately  rated,  and
received full consideration under the provisions of AFR 35-4.   Action
and disposition in this case are proper and  reflect  compliance  with
Air Force directives that  implement  the  law.   The  AFBCMR  Medical
Consultant’s evaluation is at Exhibit C.

The  Physical  Disability  Division,  HQ  AFPC/DPPD,  recommends   the
application be denied.  DPPD stated that the applicant  was  presented
before a Medical Evaluation Board  (MEB)  and  his  case  subsequently
forwarded  to  the  Informal  Physical  Evaluation  Board  (IPEB)  for
adjudication.  The IPEB determined the individual unfit for  continued
military service for his acute severe bipolar disorder and recommended
that he be placed on the Temporary  Disability  Retired  List  (TDRL),
with a 30 percent disability rating.  The applicant disagreed with the
IPEB’s findings and recommendation and requested a formal  hearing  of
his case.  On 18 Mar 1983, assisted by an appointed military  counsel,
the applicant met the Formal Physical Evaluation Board (FPEB).  Having
reviewed additional medical data and testimony from the applicant, the
FPEB determined his acute severe bipolar  disorder  (in  remission  on
lithium) as 70 percent disabling.  The FPEB  recommended  that  he  be
placed on the TDRL, with a combined compensable disability  rating  of
70  percent.   The  applicant  disagreed   with   the   findings   and
recommendation of the FPEB and elected to submit a written rebuttal to
the Secretary of the Air Force Personnel Council (SAFPC).   The  SAFPC
reviewed the preponderance of  evidence  provided  and  sustained  the
recommendation of the FPEB.  Consequently, the Council  directed  that
the applicant be placed on the TDRL,  with  a  70  percent  disability
rating.  The applicant was placed on the TDRL effective 14  Jun  1983.
On the initial reexamination, because it was  felt  that  his  medical
condition for bipolar disorder had not stabilized, the  applicant  was
retained on the TDRL.  On the second reexamination, the IPEB  reviewed
the evidence and, based on a preponderance thereof, recommended to the
Physical Review  Council  (PRC)  that  the  applicant  be  permanently
retired with a 60 percent disability  rating.   The  applicant  agreed
with the initial recommendation but the PRC later changed  the  IPEB’s
social   and   industrial   adaptability   impairment   ranking   from
“considerable” to “definite” and reduced the disability rating  to  40
percent.  The applicant disagreed with the  PRC’s  findings  and  once
again requested a formal  hearing  of  his  case.   On  24  Apr  1986,
assisted by military counsel, the applicant met the  FPEB.   The  FPEB
agreed with the PRC’s position; however, the applicant disagreed  with
these findings  and  recommendation  and  elected  to  submit  another
written rebuttal to the SAFPC.  SAFPC reviewed the evidence and upheld
the findings  and  recommendation  of  the  FPEB.   Consequently,  the
Council directed that the applicant be permanently retired, with a  40
percent disability rating, effective 2 Jul 1986.

It is DPPD’s opinion that the applicant was treated fairly  throughout
the military disability evaluation process, that he was properly rated
under Federal disability guidelines at the time of his evaluation, and
that he was afforded  a  full  and  fair  hearing  as  required  under
military disability laws and policy.  Based  on  the  above  findings,
DPPD is unaware of any reasons that would require that the applicant’s
records be corrected to reflect an increase in his  disability  rating
at the time of his permanent disability retirement.  DPPD agrees  with
the BCMR Medical Consultant’s assessment.  The DPPD evaluation  is  at
Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

The applicant reviewed the advisory opinions and  indicated  that  the
issue to be determined by this action  is  whether  a  Board,  without
psychiatric representation, can  legally  downgrade  a  psychiatrist’s
diagnosis  from  severe  to  definite.    The   applicant’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 error or injustice.  We have thoroughly and carefully
reviewed the applicant’s  complete  submission  and  the  evidence  of
record in judging the merits of this case.  We are not  unappreciative
of the applicant’s contributions  while  on  active  duty  nor  do  we
dispute  the  unfortunate  circumstances  of  his  medical  condition.
However, in our opinion, the applicant’s disability case was  properly
evaluated, appropriately rated and received full  consideration  under
the  appropriate  Air  Force  regulations.   All  levels   of   review
considered the medical  records  in  assessing  the  severity  of  the
applicant’s unfitting medical condition.  It is our opinion  that  the
assessment of the applicant’s medical condition was based on  accepted
medical principles at that particular  point  in  time.   We  are  not
persuaded by the  evidence  presented  that,  at  the  time  permanent
disposition  was  made,  the   applicant’s   medical   condition   was
misdiagnosed by Air Force medical personnel or that his case  was  not
processed  properly.   The  applicant’s  contentions   regarding   the
composition of the evaluating boards have been noted.  However,  other
than his assertions, the applicant has  presented  no  evidence  which
would lead the  Board  to  believe  that  the  board  composition  was
contrary  to  the  provisions  of  the  governing  regulation,   which
implemented the law, or that the duly appointed medical  and  physical
evaluation  board  members  were   unable   to   make   a   reasonable
determination of the degree of severity of his  medical  condition  at
that time.  We note that the Physical Review Council  (PRC)  indicated
that the applicant’s condition was improved with treatment; therefore,
they believed their revised findings  and  recommendations  were  more
appropriate.  Noting that the applicant was progressing well while  on
medication, and, based on the evidence of record and testimony at  the
time, the Formal Physical Evaluation Board (FPEB) concurred with PRC’s
findings and recommendation.  We further note that,  after  evaluating
all the evidence presented, the Secretary of the Air  Force  Personnel
Council (SAFPC) upheld the revised findings and recommendation of  the
FPEB.  Inasmuch as the FPEB and SAFPC  did  not  disagree  with  PRC’s
findings and recommendation, they apparently believed the  applicant’s
medical condition at that time did not warrant a  higher  disposition.
Once an individual has been declared unfit,  the  Service  Secretaries
are required by law to rate the condition based  upon  the  degree  of
disability at the time of permanent disposition.   The  Department  of
Veterans Affairs (DVA),  under  Title  38,  USC,  is  responsible  for
evaluating changes in service-connected medical conditions of eligible
veterans after they are separated from the service.  In this  respect,
we note that  the  applicant  has  been  awarded  a  service-connected
disability rating, with compensation entitlement, from the appropriate
agency (DVA) for his current medical condition.  We are  in  agreement
with the opinions and recommendations  of  the  respective  Air  Force
offices and adopt the rationale expressed as the basis for  concluding
that the applicant has not been the victim of an error.   Accordingly,
we find no compelling basis  to  recommend  favorable  action  on  his
request.

4.  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  issue(s)   involved.
Therefore, the request for a hearing is not favorably considered.
_________________________________________________________________

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 13 February 2003, under the provisions of AFI 36-
2603:

                  Mr. Philip Sheuerman, Panel Chair
                  Ms. Cheryl Jacobson, Member
                  Mr. David W. Mulgrew, Member

The following documentary evidence was considered in  connection  with
AFBCMR Docket Number 02-01206.

   Exhibit A.  DD Form 149, dated 2 Apr 02, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFBCMR Medical Consultant,
               dated 1 Aug 02.
   Exhibit D.  Letter, HQ AFPC/DPPD, dated 15 Aug 02.
   Exhibit E.  Letter, SAF/MRBR, dated 23 Aug 02.
   Exhibit F.  Letter from Applicant, dated 4 Sep 02, w/atch.




                                   PHILIP SHEUERMAN
                                   Panel Chair