RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  03-00507
            INDEX NUMBER:  145.00
            COUNSEL:  Veterans of Foreign Wars
            HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

His records be corrected to reflect  that  at  the  time  of  separation  he
received a higher disability  rating  and  if  this  new  disability  rating
qualifies him for medical retirement, he  be  medically  retired  with  full
benefits.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was initially placed on the Temporary Disability Retirement  List  (TDRL)
in December 1999 with a rating of 60 percent.  In July  2000,  the  Veterans
Administration  rated  his  disability  at  70  percent.    He   was   later
reevaluated at Wilford Hall Medical Center.   The  medical  examination  was
full  of  errors  and  the   Physical  Evaluation  Board  (PEB)  used   this
examination to  downgrade  his  disability  rating  to  10  percent  and  to
discharge  him.   The  medical  examination  is  contradictory  to  all  his
previous and subsequent medical exams.

He served his country for fourteen honorable years.  Before  his  discharge,
he had completed his  Bachelor’s  degree  in  anticipation  of  becoming  an
officer and continuing his career in the Air Force.   His  pride  in  having
served has been marred by  the  frustration  he  feels  toward  the  PEB  in
dealing with disabled service members.  His story is common among  medically
discharged  veterans  who  report   Randolph   downgrades   their   ratings,
discharges them, and then plays the odds that the applicants will not  fight
the rating.  He has devoted his entire adult life  to  serving  his  country
and will fight back.

In support of his appeal, applicant submits a personal statement and  copies
of medical reports, test results and related  diagnoses,  rating  decisions,
and medical records associated with his disability  separation  (Tabs  A-T).
Applicant’s complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Records reflect that the applicant is a former noncommissioned  officer  who
was relieved from active duty effective 9 February 2000  and  his  name  was
placed on the Temporary Disability Retired List (TDRL) in  the  retired  pay
grade of technical sergeant effective 10  February  2000,  with  a  physical
disability rating  of  60  percent.   Applicant’s  physical  disability  was
chronic  low  back  pain  secondary  to  fibrosis,  status  post  discectomy
associated with arthritis of spine, right foot drop and unstable  gait.   He
was credited with 13 years, 4 months  and  21  days  of  total  active  duty
service for basic pay and for active service for  retirement.   Effective  9
September 2001, his name was removed from the TDRL and he was discharged  in
the grade of technical sergeant with severance pay  and  with  a  disability
rating of 10 percent.

The  remaining  relevant  medical  facts  pertaining  to  this  application,
extracted from  the  applicant's  medical  records,  are  contained  in  the
letters prepared by the appropriate offices of the Air Force  at  Exhibit  C
and D.

_________________________________________________________________

AIR FORCE EVALUATIONS:

The BCMR  Medical  Consultant  recommends  that  the  preponderance  of  the
evidence supports change  of  records  to  show  disability  discharge  with
severance pay at 20 percent.  The BCMR Medical Consultant  agrees  with  the
PEB that the applicant's condition does not achieve the severity  sufficient
to warrant disability retirement, but opines that the preponderance  of  the
evidence supports that the applicant's condition  is  of  moderate  severity
with recurring attacks with  intermittent  relief  warranting  a  disability
rating of 20 percent.

The BCMR Medical Consultant’s evaluation is at Exhibit C.

AFPC/DPPD recommends approval of the applicant's  request  to  increase  the
disability rating from 10 to  20  percent.   AFPC/DPPD  states  that  having
reviewed the BCMR Medical Consultant's evaluation, they forwarded  the  case
file  to  the  Informal  Physical  Evaluation  Board  (IPEB)   for   further
adjudication of the case.  The IPEB determined  that  due  to  the  lack  of
objective rating criteria, and giving  the  benefit  of  the  doubt  to  the
veteran, a very slightly higher disability  rating  may  be  appropriate  in
this case.  Any rating above 20 percent, however, is clearly  not  warranted
based on the member's condition at the time of his removal  from  the  TDRL,
with subsequent discharge.

The AFPC/DPPD evaluation is at Exhibit D.

_________________________________________________________________




APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

The Veterans of Foreign Wars counsel  responded  on  applicant's  behalf  by
referring to the neurosurgeon’s report of 21  September  1999,  stating  the
applicant's  condition  would  not  improve  any  further.   Therefore   the
applicant's rating should not have been reduced and he should have  remained
on the TDRL.

Counsel’s letter 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.  Sufficient relevant evidence  has  been  presented  to  demonstrate  the
existence of error or injustice warranting an  increase  in  the  disability
rating.  After reviewing  the  evidence  of  record,  it  appears  that  the
applicant’s condition is of  moderate  severity  occurring  more  frequently
then determined  by  the  Air  Force  disability  system.   Having  seen  no
evidence that would lead us to believe the contrary is the  case,  we  agree
with the assessment by the  BCMR  Medical  Consultant,  as  confirmed  by  a
recently-convened IPEB, that the severity  of  his  back  condition  is  not
sufficient  to  warrant  a  disability  retirement.   However,  due  to  the
applicant’s  recurring  attacks,  we  accept  the  recommendations  in   the
advisory opinions that the appropriate  rating  for  his  disability  is  20
percent.  In view  of  the  foregoing,  and  in  an  effort  to  offset  any
possibility of an injustice, we believe his records should 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  9  September  2001,  competent
authority  determined  that  the  compensable  rating  for   his   unfitting
condition, “Chronic Back Pain Secondary to Fibrosis, Status  Post  Disectomy
with Residual  Mild  L5  Radiculopathy,”  was  20 percent,  rather  than  10
percent.

_________________________________________________________________

The following members of the Board considered this application  in Executive
Session on 12 February 2004, under the provisions of AFI 36-2603:

            Ms. Brenda L. Romine, Panel Chair
            Ms. Barbara R. Murray, Member
            Mr. David C. Van Gasbeck, Member

The following documentary evidence was considered for AFBCMR  Docket  Number
03-00507:

      Exhibit A.  DD Form 149, dated 24 Jan 03, w/atchs.
      Exhibit B.  Applicant's Master Personnel Records.
      Exhibit C.  Letter, BCMR Medical Consultant, dated 3 Oct 03.
      Exhibit D.  Letter, AFPC/DPPD, dated 9 Dec 03.
      Exhibit E.  Letter, SAF/MRBR , dated 19 Dec 03.
      Exhibit F.  Letter, Applicant’s counsel, dated 27 Jan 04.





               BRENDA L. ROMINE
               Panel Chair



AFBCMR BC-2003-00507




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 XXXXXXXXXX, be corrected to show that on 9 September
2001, competent authority determined that the compensable rating for
his unfitting condition, “Chronic Back Pain Secondary to Fibrosis,
Status Post Disectomy with Residual Mild L5 Radiculopathy,” was
20 percent, rather than 10 percent.




            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency