RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-03167
            INDEX CODE:  110.01

            COUNSEL:  NONE

            HEARING DESIRED: YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

He be placed back on active duty effective 15  April  2000  until  the
disposition of his back injury is resolved.  He receive all  back  pay
and allowances from 15 April 2000,  the  date  he  was  released  from
active duty, until now.  Additionally, he requests  a  50%  disability
rating for a ruptured disc, 30% disability  rating  for  a  compressed
neck, and 20% disability rating for problems with his left  knee.   He
requests a medical retirement from the Air National Guard (ANG).

_________________________________________________________________

APPLICANT CONTENDS THAT:

Applicant states he was activated from 1 May 1999 to 15 April 2000  in
support of Operation Allied Force in Bosnia.  During his  active  duty
tour he injured his back.  Military doctors initially listed his  back
injury as existed prior to service (EPTS) but on 12 June 2001, it  was
changed  to  a  line  of  duty  (LOD)  injury.   He  states   he   was
involuntarily released from active duty on 15 April  2000.   He  still
suffers from the back injury and it has prohibited him from working at
his old civilian job.  He believes he  should  have  been  allowed  to
remain on active duty until his back injury  was  resolved  and  would
like to return to active duty for that purpose.

Applicant states he has a ruptured disc, a compressed  neck  that  has
led to neck pain and numbness in his right  arm.   He  states  he  has
problems with his left knee that, in turn, has led  to  problems  with
his right knee.  Applicant states that should he  receive  the  active
duty time he requested he would have 17 good years towards  a  Reserve
retirement at age 60.  To that end, he believes he should be granted a
medical Reserve retirement.

In support of his appeal, the applicant has provided an  excerpt  from
Air  Force  Instruction  (AFI)  36-3212,   Physical   Evaluation   for
Retention, Retirement, and Separation, copies of National Guard Bureau
(NGB) Form 348, Line of Duty Determination, a page from  his  military
treatment record, a letter to his representative, a letter to his unit
personnel officer requesting a medical  evaluation  board  (MEB),  two
letters to State representatives, pertinent copies of the results of a
magnetic resonance imaging (MRI), a letter from the Office  of  Policy
and Liaison to his representative, pertinent letters  from  his  State
regarding his LOD status, a letter from his civilian employer  stating
why they cannot reemploy him, a copy of his DD Form  214,  Certificate
of Release or Discharge from Active Duty, and a letter from his  local
Veteran’s Service Office.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant, a former member of the Pennsylvania Air National  Guard
(PAANG), was called to active  duty  on  1  May  1999  in  support  of
Operation Allied Force.  On 17 June 1999,  while  on  active  duty  in
Bosnia, he injured his back.  He was diagnosed with degenerative  disk
disease  and  received  physical  therapy.   A  line  of  duty   (LOD)
determination was performed by his unit and on 18 February  2000,  his
injury was recommended LOD.  When the recommendation was passed to  HQ
ANG/SG, the LOD was denied and on 14 March 2000, his injury was listed
as existed prior to service (EPTS) with service aggravation and he was
authorized 120 days of physical therapy.  He  was  released  from  his
active duty tour on 15  April  2000.   On  26  March  2001,  applicant
applied to the AFBCMR to  have  his  injury  changed  from  EPTS  with
service aggravation to LOD.  On 7 December 2001, HQ ANG  approved  his
request and his records were changed to reflect LOD.  On 9 June  2003,
he met a medical evaluation board (MEB) at Wright-Patterson  AFB  that
found an L3/L4 disc herniation incurred while entitled  to  basic  pay
and was LOD.  On 9 September 2003, applicant  applied  to  the  AFBCMR
requesting to be placed back on active duty beginning  15  April  2000
until his back injury was resolved.  On 8  October  2003,  he  met  an
informal physical evaluation board (IPEB) at Lackland AFB.   The  IPEB
recommended  discharge  due  to  medical  disqualification  with   10%
disability rating and severance pay.  A formal PEB (FPEB)  upheld  the
IPEB’s recommendation.  On 20 October 2003, the applicant appealed the
decision to SAF/PC asking  for  a  permanent  retirement  with  a  40%
disability rating.  On 18 December 2003, SAF/PC found the  applicant’s
condition did not reach the threshold for a 40% disability rating  and
concurred with the previous findings of the  IPEB  and  FPEB.   On  20
January 2004, applicant was honorably discharged by reason of physical
disability with entitlement to receive severance pay in the  grade  of
SSgt.  At the time of discharge, he had served a total  of  17  years,
3 months, and 24 days of combined active and Reserve service.

_________________________________________________________________

AIR FORCE EVALUATION:

ANG/DPP notes the inordinate amount of time it has  taken  to  process
this application and states the applicant’s  lack  of  action  on  two
occasions contributed to the  amount  of  time  taken  thus  far.   In
accordance with AFI 36-3212 wherein it states “Air  Reserve  Component
(ARC) members who incur or aggravate an injury, illness, or disease in
the line of duty while on  orders  for  more  than  30  days  are  not
involuntarily released from those orders until  final  disposition  of
their disability case.  These members’ entitlement  to  full  pay  and
allowances and benefits continue to the same extent provided by law or
regulation to regular component members.”   Therefore,  since  he  was
maintained in an active status and incapacitation pay status until  30
August 2000 and  not  12  September  2000,  when  the  PEB  found  him
medically disqualified, DPP recommends he receive  incapacitation  pay
from 31 August 2000 until 12 September 2000.

DPP’s complete evaluation, with attachments, is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant rejects the ANG advisory’s claim that the delay of his  case
is due to his lack of  action  on  two  occasions.   He  also  rejects
several other factual inaccuracies.  First, he  contends  his  initial
date of injury was in May, not June 1999.  The second  error  was  the
misdiagnosis of the severity of his injury.  After a month of physical
therapy and three months from the date of his injury, an MRI  revealed
the true problem: two herniated discs.  After more physical therapy he
was sent back to the ANG for duty to see if he  experienced  any  more
problems.  He reinjured his back and was put on a 10 lbs  limit.   The
ANG then tried to return him to his civilian employer who  refused  to
put him back to work because of his injury.  He tried to  get  an  LOD
for his injury but the ANG  made  it  very  difficult.   His  LOD  was
partially approved in June 2001, but  he  only  found  out  about  the
approval by accident in November 2001.

He contends the ANG has been ruthless  in  its  efforts  to  keep  his
injury in EPTS status.   After  an  investigation  by  the  state  Air
Surgeon found no existence of a preexisting back  condition,  the  ANG
was asked to clarify their position.  In June 2004,  the  ANG  changed
his injury status to EPTS, however aggravated by service.  He has  not
been officially notified of this decision and  consequently  asks  for
copies of medical records and/or physicals that were used  to  support
this diagnosis.  Additionally, he asks why the  requested  information
was never provided to his state Air Surgeon or  his  civilian  doctors
who never found a preexisting back condition.

He states prior to his active duty injury, he  was  perfectly  healthy
and had two careers.  Now, as a result of service, he is disabled  and
had lost both careers and their associated retirement benefits.

Applicant’s complete rebuttal, with attachments, is at Exhibit E.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing  law
or regulations.

2.  The application was timely filed.

3.  Sufficient relevant evidence has been presented to demonstrate the
existence of error or injustice regarding applicant’s request for  pay
and allowances between 15 April 2000 and 18 December  2004.   In  this
regard, we note that it took several years for a determination  to  be
made that his injury was in the line of duty and several years for him
to actually meet a medical board.  As a result,  he  incurred  medical
expenses and experienced financial hardship  during  the  period  2000
through 2003. Air National Guard Instructions allow members on  orders
for a period of 31 days or more, who are incapacitated or hospitalized
beyond the original termination point of their orders,  to  remain  on
active duty  until  a  final  disposition  of  the  member’s  case  is
determined.  It is apparent the applicant was entitled to  and  should
have had a complete medical evaluation prior to  being  released  from
active duty.  However, the applicant  was  erroneously  released  from
active duty prior to the final disposition of his case.  Therefore, we
recommend that the records be corrected as indicated below.

4.  Insufficient relevant evidence has been presented  to  demonstrate
the existence of error  or  injustice  regarding  his  request  he  be
awarded a medical retirement with 100% compensable disability  rating.
Applicant was processed through the Disability Evaluation System (DES)
and received  a  10%  disability  rating  along  with  severance  pay.
Evidence has not been provided which would lead us to believe that the
applicant’s disability processing and the rating he received at  final
disposition was contrary to the governing Air  Force  instruction  and
the law. Therefore, in the absence of evidence  to  the  contrary,  we
find no compelling basis to recommend granting medical retirement with
100% disability rating.

5.  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 RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT be corrected to show that:

            a. On 15 April 2000, he was not released from active  duty
but on that date he continued to serve until 19 January 2004.

            b. On 20 January 2004, he was transferred to  the  Retired
Reserve, eligible  for  Reserve  retired  pay  at  age  60  under  the
provisions of Title 10, U.S.C., Section 12731, rather  than  accepting
discharge for physical disability with severance pay.

______________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 28 September 2004, under the provisions of AFI 36-
2603:

      Ms. Charlene M. Bradley, Panel Chair
      Mr. Terry L. Scott, Member
      Mr. James W. Russell, III, Member

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

    Exhibit A.  DD Form 149, dated 9 Sep 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, ANG/DPP, dated 9 Jun 04, w/atchs.
    Exhibit D.  Letter, SAF/MRBR, dated 25 Jun 04.
    Exhibit E.  Letter, Applicant, dated 21 Jul 04, w/atchs.




                                   CHARLENE M. BRADLEY
                                   Panel Chair



                         DEPARTMENT OF THE AIR FORCE
                                WASHINGTON DC


[pic]
Office Of The Assistant Secretary



AFBCMR BC-2003-03167


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 15 April 2000, he was not released from active  duty
but on that date he continued to serve until 19 January 2004.

            b. On 20 January 2004, he was transferred to  the  Retired
Reserve, eligible  for  Reserve  retired  pay  at  age  60  under  the
provisions of Title 10, U.S.C., Section 12731, rather  than  accepting
discharge for physical disability with severance pay.





     JOE G. LINEBERGER

     Director

     Air Force Review Boards Agency