RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2002-02712
            INDEX NUMBER:  108
      XXXXXXXXXXXXX    COUNSEL:  None

      XXX-XX-XXXX      HEARING DESIRED:  No

_________________________________________________________________

APPLICANT REQUESTS THAT:

Her disability discharge be changed to a medical retirement.

_________________________________________________________________

APPLICANT CONTENDS THAT:

She  was  never  appropriately  or  timely  counseled.    Appropriate
Department of Defense (DOD) and Air Force (AF)  directives  were  not
complied with.  Medical reports on her were ignored or taken  out  of
context.  The disability ratings and codes in her case are wrong.

In support of her appeal, applicant provides a chronological  summary
of events pertinent to her case, extracts from her  medical  records,
results of her Physical Evaluation Board (PEB) and her appeal of  the
findings  and  recommendations.   The  applicant  also  provided   an
addendum letter to her initial application advising of her efforts to
get a certified copy of her medical records for the Board’s use.  She
also discusses the basis of her  appeal;  that  the  disability  code
given her fails to address the complete  extent  of  her  disability.
She contends that the medical evaluation board (MEB) conducted on  19
Jan 99 did not have all of the  appropriate  board  members  present,
that there was no commander’s signature, and there was  a  letter  of
exception attached from her commander.  The two-member panel violated
DOD 1332.38, paragraph  E3.P1.2.1  and  3,  by  not  documenting  all
medical conditions and therefore not stating whether  each  condition
was cause for referral.

Applicant also indicates problems that  she  had  with  her  military
counsel and problems in which her formal PEB (FPEB) was conducted.

The applicant’s complete submission, with attachments, is at  Exhibit
A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant entered active duty in the Air Force on 25 Feb 86.  She
was promoted up through the grade of staff sergeant  (SSgt).   On  17
Dec 98, the applicant was evaluated for referral to an  MEB.   On  19
Jan 99, the applicant was evaluated by an MEB.  The  MEB  established
diagnoses of  attention-deficit  hyperactivity  disorder,  depressive
disorder  not  otherwise  specified,  and  chronic  neck   pain   and
degenerative disc disease.  It  recommended  that  the  applicant  be
referred to an Informal PEB (IPEB).  On    8 Feb  99,  the  applicant
met an IPEB.  The IPEB diagnosed her with an  unfitting  and  ratable
condition of chronic neck  pain  associated  with  degenerative  disc
disease and depression.  She was given  a  disability  rating  of  10
percent.  The IPEB also diagnosed  attention  deficit  disorder,  but
determined that it existed  prior  to  service  (EPTS)  and  was  not
compensable.  On    22 Feb 99, the applicant indicated that  she  did
not agree with the findings and recommended disposition in  her  case
and demanded a formal hearing.  On 31  Mar  99,  a  FPEB  upheld  the
earlier findings of the IPEB.  In her acknowledgement of  the  FPEB’s
findings, the applicant indicated that she did  not  agree  with  the
findings and recommended disposition of the  FPEB.   She  elected  to
submit a rebuttal.

On 19 Apr 99, the applicant filed a  complaint  with  the  Air  Force
Academy Inspector General regarding the MEB process.   She  made  the
following allegations with the indicated results.

        a.  When she was identified for an  MEB  by  a  physician,  a
complete physical examination was  not  done.   This  allegation  was
unsubstantiated.

        b.  The MEB did not accept the examination narrative  of  her
Physician Assistant.  This allegation was unsubstantiated.

        c.  Her medical records  were  not  charged  out  by  10  AMS
personnel.  This allegation was substantiated.

        d.  The MEB did not thoroughly evaluate her  medical  records
for the accurate scheduling of  proper  disabilities  ratings.   This
allegation was unsubstantiated.

        e.  She was not briefed of her rights by  10  AMS  personnel.
This allegation was substantiated.

        f.  The PEB did not communicate to her or the  Medical  Group
Medical Evacuation Resource Management that she should not take leave
in conjunction with medical TDY  for  a  PEB.   This  allegation  was
substantiated.

The IG encouraged the applicant to  use  her  chain  of  command  and
appointed MEB counsel in submitting her appeal to SECAF regarding her
concerns with the MEB/PEB process.  The IG indicated that they  would
assist the applicant with her concerns with AMS personnel.

On 1 May 99,  the  applicant  submitted  her  rebuttal  to  the  FPEB
findings.  On 24 Jun 99, the Secretary of  the  Air  Force  Personnel
Council  (SAFPC)  concurred  with  the   findings   and   recommended
disposition  of  the  IPEB  and  FPEB   regarding   the   applicant’s
disability.  They directed  that  the  applicant  be  discharged  and
receive severance pay with a disability rating of ten  (10)  percent.
In making their determination, SAFPC indicated that  they  considered
the applicant’s rebuttal letter  with  a  contention  for  disability
retirement and higher compensation  form.   They  also  reviewed  the
evidence and testimony presented to the  FPEB,  the  remarks  by  the
FPEB, the remarks  by  the  IPEB,  the  applicant’s  service  medical
record, and the narrative of the MEB.

The applicant was discharged effective 25 Aug 99 under  AFI  36-3212,
with a disability rating  of  ten  percent,  for  chronic  neck  pain
associated with degenerative disc disease and depression.

_________________________________________________________________

AIR FORCE EVALUATION:

The BCMR Medical Consultant recommends that the  applicant’s  records
be corrected to  show  disability  discharge  with  severance  at  20
percent under  the  VASRD  for  intervertebral  disc  syndrome.   The
applicant was disability discharged with chronic neck pain associated
with degenerative disc disease and depression.  The applicant  had  a
history of ADHD diagnosed and treated since  1996,  and  intermittent
symptoms of depression, which responded to therapy and alone did  not
form a basis for being  found  unfit.   Following  an  Apr  97  motor
vehicle accident in  which  she  sustained  a  whiplash  injury,  the
applicant developed  chronic  neck  and  shoulder  girdle  pain,  and
symptoms  of  arm  numbness.   Evaluation  by  radiographic   imaging
studies, electromyography (EMG) and evaluations  from  a  variety  of
specialists, including orthopedic surgery,  neurosurgery,  neurology,
and physical medicine were in concurrence with regard to diagnoses of
degenerative spine disease and associated myofascial  pain  (muscular
pain syndrome associated with the cervical spine  sprain,  whiplash).
Although the applicant’s MRIs revealed impressive changes of  bulging
intervertebral discs appearing to make contact with the  spinal  cord
and the left C7 nerve root, no  objective  neurologic  findings  were
reported prior to her MEB and PEBs.  It was not until April  and  May
1999  that  examination  findings  consistent  with  mild  neurologic
involvement were documented.  An orthopedic examination in Feb 00 and
the Jul 00 VA rating decision are consistent with  the  findings  and
conclusions of the Air Force PEBs.

The applicant’s functional limitations  while  on  active  duty  were
likely the result of intertwined effects of  her  chronic  neck  pain
from her spine disease, ADHD,  and  depressive  symptoms.   The  PEBs
accurately acknowledged this by associating her depression  with  her
neck pain  in  rating  her  overall  disability.   However,  accurate
information regarding the applicant’s functional limitations and  her
neurologic impairments did not appear to be available to the PEBs  in
their deliberations.  The Apr  99  neurology  and  physical  medicine
evaluations  documented  mild  neurologic  functional  limitation  in
mowing grass  and  lifting  and  carrying  heavy  objects,  and  pain
associated with the leaning, head forward posture required to perform
duty as a dental laboratory technician.   The  FPEB  interpreted  the
applicant’s ability to travel extensively as inconsistent with a high
level of work disability.  The BCMR Medical Consultant  concurs  that
the applicant’s condition was unfitting for  continued  service,  but
does not find clear evidence that the disabilities were sufficient to
attain the 30% level to qualify for permanent retirement.  In view of
the findings of the Apr 99 neurology examination,  and  supported  by
stable symptoms in Feb 00, the BCMR Medical Consultant  recommends  a
rating  of  20  percent  under  the  VASRD  for  intervertebral  disk
syndrome, moderate  recurring  attacks.   He  concurs  with  the  PEB
findings regarding the applicant’s other medical conditions.

The complete evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant indicates in her response to the Air  Force  evaluation
that she disagrees with the BCMR Medical  Consultant’s  statement  of
her request.  She indicates that she  is  still  concerned  with  the
recommended rating of 20 percent.  She still experiences ongoing  and
increasingly  painful  episodes  with  her  neck/shoulder  area,  and
extreme bilateral  hip  pain.   The  applicant  also  disagrees  with
combining depression with the 5293 code.  In her understanding of the
disability codes, Directives, Policies, and Instructions, you  cannot
combine disabilities without “building a code” to reflect  the  exact
disability.  It would also appear that the MEB would have listed  all
of her medical conditions and state  whether  each  condition  is/was
cause for referral into the Disability Evaluation System.

The applicant is also concerned that no  action  has  been  taken  to
correct the numerous violations she listed in her  letter  to  SECAF.
The applicant indicates that the recommendation by the  BCMR  Medical
Consultant to increase  her  disability  to  20  percent  is  not  an
accurate representation of her medical condition at the time  of  her
discharge.

The applicant’s complete response is at Exhibit E.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

Pursuant to the Board’s request, AFPC/DPPR evaluated the  applicant’s
appeal.  They recommend denial of the applicant’s request.

After reviewing the BCMR Medical Consultant’s evaluation, in which he
recommended an increase in the applicant’s disability rating from  10
to 20 percent, they decided that an additional review by the IPEB was
necessary.   After  reviewing  the  additional  evidence,  the   IPEB
concluded that even  with  the  orthopedic  examination  of  Jan  00,
proximate enough to the Disability Evaluation System  process  to  be
considered, no evidence was presented to  warrant  a  change  in  the
diagnoses and disability ratings awarded by the IPEB, FPEB, and SAFPC
in 1999.  Specifically, the nerve condition studies were negative and
other than trigger points around the shoulder blades, the examination
was essentially normal.  Regarding the applicant’s  referral  to  her
adjustment disorder, along with her ADHD, according to DODI  1332.38,
E4, 13.1.4, which overrides the VASRD, these diagnoses are considered
unsuiting rather than unfitting, and therefore are not compensable or
ratable under disability laws and  policies,  and  are  listed  under
Category III of the Air Force disability rating categories.

They provide the following  responses  to  the  applicant’s  comments
regarding her MEB/PEB process:

        a.  The applicant’s  MEB  package  appears  to  appropriately
focus on those unfitting medical conditions that refer her  into  the
DES.  AF Form 618, Medical Board Report, coupled with  the  narrative
summaries/consultations,  commander’s  letters,  etc.,  address   her
unfitting conditions as required for review by the PEB.  It  must  be
noted that the MEB only addresses unfitting medical  conditions  that
affect the member’s ability to perform his or her military duties  at
that time, and not her entire military medical history.

        b.  An administrative oversight in item 26 of the AF Form 618
was noted in the area that was supposed to be signed by a third board
member.  Records show that only two  physicians  signed  the  Medical
Board Report.  The Medical  Board  Report  also  lacks  the  hospital
commander’s signature, although the concurrence block shows an “X” in
the “Approved”  block.   Although  a  third  medical  board  member’s
signature was not included on the AF  Form  618,  all  the  narrative
medical summaries (including the medical narrative summary  completed
by Capt Vanderburgh) provided were  inclusive  and  properly  signed.
Although the lack of the above mentioned signatures make  the  report
somewhat unofficial, it apparently did not  deter  from  the  overall
objective of the MEB.

        c.  The comment made by the applicant concerning item 29c  of
the AF Form 618 in which the service member makes comments concerning
a letter of exception from her commander is null and void.   This  is
probably due to her misunderstanding  of  the  overall  MEB  process.
This block does not address the requirement for a commander’s letter,
but shows if a letter of exception from the member is included in the
MEB package.  Applicant’s signature  affixed  on  the  Medical  Board
Report shows she  was  briefed  and  informed  of  the  findings  and
recommendations of the medical board.

        d.  MEB package and associated documentations were  forwarded
and received by the PEB within the 90-day window required by AFI  36-
3212.

         e.  Applicant’s  contention  that  she  was   not   provided
appropriate counseling at the FPEB concerning her hearing  rights  is
incorrect.  Disability processing records include an  AF  Form  1180,
Action  on  Physical  Evaluation  Board  Findings   and   Recommended
Disposition,  which  indicates  a   counseling   was   received   and
acknowledged by the member on 31 Mar 99.  Her legal  counsel  at  the
board conducted counseling.  Her comment that her legal counsel  lied
to her, and that she requested he be relieved from that  duty  cannot
be ascertained.

        f.  Applicant’s comments that she was mistreated by the  FPEB
is controversial and cannot be verified or denied.  AFPC/DPPD  cannot
entertain why the Board,  which  is  made  up  of  Air  Force  senior
leadership, would have reason to be biased towards the service member
and believes that the statements in the findings were  professionally
based  on  the  preponderance  of  the  evidence  provided  to   them
concerning the case.

They conclude that the applicant was treated  fairly  throughout  the
Air Force DES process, and  she  was  properly  rated  under  federal
guidelines at the time of her evaluation as required  under  military
disability laws and policy.  Based on their  evaluation,  they  could
not justify why the applicant’s records should be corrected  to  show
an increase in her disability rating  and  the  award  of  disability
retirement.

The complete evaluation is at Exhibit F.

_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

In her response to the additional  Air  Force  evaluation,  applicant
indicates that she is not confused regarding the Air Force disability
processing system.  She states that  she  has  read  and  reread  the
applicable instructions, regulations, etc., and that  is  the  reason
she is appealing.  She truly believes her code  5290  is  wrong,  the
rating is wrong, and the depression should never have  been  included
in the 5290 code.  There is overwhelming and superior evidence in her
record to justify her requests for correction of codes, ratings,  and
disability retirement.  The 5290 code should be corrected to  reflect
5293.  The Intervertebral disc  syndrome  and  depression  should  be
identified, coded, and rated separately.

In support of her appeal, the applicant provides  extracts  from  DOD
Instruction  1332.39,  Application  of  the  Veterans  Administration
Schedule for Rating Disabilities, that  defines  Intervertebral  Disc
Syndrome and the level of symptoms required for ratings of 40  to  60
percent.  She then references  the  Board  to  documentation  in  her
medical records that she believes supports a rating of 40 percent for
her Intervertebral Disc Syndrome.

In support of her contention that  her  mental  disorders  should  be
rated, applicant provides an extract from Air Force  Instruction  36-
3212, Physical Evaluation for Retention, Retirement, and  Separation,
that defines how disability evaluation boards will assign  disability
ratings,  DODI  1332.39,  and  DODI  1332.38,   Physical   Disability
Evaluation, which defines “Physical  Disability.”   Applicant  points
out that the term physical disability  includes  mental  disease  and
that for a medical impairment or  physical  defect  to  constitute  a
physical disability, it must  be  of  such  a  nature  or  degree  of
severity as to interfere with  the  member’s  ability  to  adequately
perform his or her duties.  The  applicant  refers  the  Board  to  a
consult from an  Air  Force  Psychiatrist,  dated  17  Dec  98,  that
identified  her  impairment  as  moderate  for  military   duty   and
considerable for civilian/social/industrial adaptability.

The  applicant  indicates  that  a  rating  of  40  percent  for  her
Intervertebral Disk Syndrome and  30  percent  for  mental  disorders
comes to a combined rating of 58 percent, well within the requirement
for a medical retirement.

The applicant’s complete response is at Exhibit H.

_________________________________________________________________

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 regarding the applicant’s request
for a medical retirement.  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 Air Force offices of  primary
responsibility regarding this issue and adopt their rationale as  the
basis for our conclusion that the applicant’s condition at  the  time
of  her  discharge  does  not  warrant  a  medical  retirement.   The
applicant indicates that she is concerned that  no  action  has  been
taken in regard to violations she listed in her letter of 1 May 99 to
the Secretary of the Air Force.  However, we note that the  Secretary
of the Air Force Personnel Council indicated in their  letter  of  24
Jun 99 that they considered the applicant’s  letter  before  reaching
their decision that she be discharged with  a  disability  rating  of
10%.  Therefore, in the absence of evidence to the contrary, we  find
no compelling basis to recommend granting this portion of the  relief
sought in this application.

4.  Notwithstanding  our  findings  above,  we   believe   sufficient
relevant evidence has been presented justifying a measure  of  relief
regarding  the  applicant’s  diagnosis  and   associated   disability
discharge rating.  In that regard, we accept the opinion of the  BCMR
Medical  Consultant   that   accurate   information   regarding   the
applicant’s functional limitations and her neurologic impairments did
not appear to be available to the Physical Evaluation Boards in their
deliberations.  As such, we concur with his recommendation  that  the
applicant’s  disability  be  rated  at  20%  under  the   VASRD   for
intervertebral disk syndrome, Code 5293, moderate recurring  attacks.
We note the  applicant’s  disagreement  with  the  combining  of  her
depression with her intervertebral disk  syndrome  to  determine  her
disability rating.  However, we accept the opinions of the Air  Force
offices of primary responsibility that her depression when considered
alone was not an unfitting condition at the time  of  her  discharge.
Therefore, we believe that the decision to combine the two conditions
was proper and that her records  should  only  be  corrected  to  the
extent indicated below.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department  of  the  Air  Force
relating to APPLICANT be corrected to show that on  25  August  1999,
she was  discharged  for  physical  disability  with  entitlement  to
severance  pay,  based  on  the  diagnosis  of  intervertebral   disk
syndrome, VASRD 5293, rather than chronic neck pain  associated  with
degenerative disk disease and depression, VASRD 5290,  rated  at  20%
rather than 10%.

_________________________________________________________________

The following members of the Board considered Docket Number  BC-2002-
02712 in Executive Session on 7 May 2003, under the provisions of AFI
36-2603:

      Mr. Joseph G. Diamond, Panel Chair
      Ms. Kathleen F. Graham, Member
      Ms. Dorothy P. Loeb, Member

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

     Exhibit A.  DD Form 149, dated 22 Aug 02, w/atchs;
                 Letter, dated 29 Dec 02, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Memorandum, BCMR Medical Consultant,
                 dated 10 Feb 03.
     Exhibit D.  Letter, AFBCMR, dated 14 Feb 03.
     Exhibit E.  Memorandum, Applicant, dated 26 Feb 02.
     Exhibit F.  Memorandum, AFPC/DPPD, dated 25 Mar 03.
     Exhibit G.  Letter, SAF/MRBR, dated 28 Mar 03.
     Exhibit H.  Memorandum, Applicant, dated 18 Apr 03.




                                   JOSEPH G. DIAMOND
                                   Panel Chair


AFBCMR BC-2002-02712


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 XXXXXXXXX, XXX-XX-XXXX, be corrected to show that
on 25 August 1999, she was discharged for physical disability with
entitlement to severance pay, based on the diagnosis of
intervertebral disk syndrome, VASRD 5293, rather than chronic neck
pain associated with degenerative disk disease and depression,
VASRD 5290, and rated at 20% rather than 10%.




            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency