RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-03494
            INDEX CODE:  108.00

            COUNSEL:  ANTHONY W. WALLUK

            HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

His disability rating be  changed  from  60  percent  to  the  maximum
75 percent retroactive to the date of his retirement.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was improperly rated and should have received the maximum rating of
75 percent.  This  is  based  on  the  evaluations  conducted  by  the
Department of Veterans Affairs (DVA) prior to his retirement, which he
did not receive until after the decision of the Secretary of  the  Air
Force Personnel Council (SAF/MRBP).

In support of his appeal, the applicant provided  a  counsel’s  brief,
SAF/MRBP memorandum, DVA rating decision,  and  medical  documentation
from the DVA.

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

_________________________________________________________________

STATEMENT OF FACTS:

Applicant was voluntarily ordered to extended active duty on 30 May 90
in the grade of second lieutenant.

On 9 Sep 02, a Medical Evaluation Board (MEB) convened and established
a diagnosis of mood disorder with major depressive like feature due to
chronic pain condition.  The MEB recommended the applicant’s  case  be
referred to an Informal Physical Evaluation Board (IPEB).

On 24 Sep 02, an IPEB convened and established a diagnosis  of  severe
left brachial plexopathy associated with mood disorder with depressive
features.  The IPEB recommended the applicant be  permanently  retired
with a disability rating of 30 percent.

On  27  Sep  02,  the  applicant  disagreed  with  the  findings   and
recommended disposition of the IPEB and demanded a formal  hearing  of
the case.

On 22 Oct 02, a Formal Physical Evaluation Board (FPEB)  convened  and
established a diagnosis of severe left brachial plexopathy  associated
with mood disorder with depressive features.  The FPEB recommended the
applicant be permanently  retired  with  a  disability  rating  of  40
percent.   The  applicant  did  not  agree  with  the   findings   and
recommended disposition of the FPEB.

On 6 Jan 03, SAF/MRBP  under  its  delegated  authority  directed  the
applicant  be  permanently  retired  with  a  disability   rating   of
60 percent.

On 7 Mar  03,  the  applicant  was  relieved  from  active  duty  and,
effective  8  Mar  03,  permanently  retired  by  reason  of  physical
disability in the grade of  captain,  with  a  compensable  disability
rating of 60 percent.  He was credited with 12 years, 9 months, and  8
days of active service.

A Department of Veterans Affairs (DVA) Rating  Decision,  dated  2 Jun
03, indicates the applicant was granted  service-connected  disability
compensation  for  brachial  plexopathy  and  myeloneuropathy,  severe
(60 percent),  major   depressive   disorder,   severe   (50 percent),
degenerative joint disease, cervical spine, with recurrent torticollis
(20 percent),  degenerative  joint  disease,  lumbosacral  spine  with
sciatica (10 percent), and tinnitus (10 percent), for a total combined
disability compensation rating of 90 percent.

The relevant facts pertaining to the  applicant’s  medical  conditions
are discussed in the advisory opinion provided by the  AFBCMR  Medical
Consultant at Exhibit C.

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AIR FORCE EVALUATION:

The Medical Consultant recommended denial  noting  the  applicant  was
permanently retired by reason of physical disability for left brachial
plexopathy  associated  with  depression  with  a  60  percent  rating
following his appeal to SAF/MRBP which essentially granted his request
at the time of the appeal.  According to the Medical  Consultant,  the
contribution of the co-morbid depression to the applicant’s impairment
and level of unfitness  for  duty  was  reflected  in  his  rating  by
associating it with the brachial plexopathy.  In his view, the  action
and disposition in this case  were  proper  and  equitable  reflecting
compliance with Air Force directives which implement the law.

A complete copy of the Medical Consultant’s evaluation is  at  Exhibit
C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to  applicant  on  12
May 04 for review and response (Exhibit D).  By letter, dated  21  Jul
04,  the  applicant’s  counsel  requested  his  case  be   temporarily
withdrawn (Exhibit E).

Counsel subsequently provided a response to the  Medical  Consultant’s
advisory opinion, indicating he believes the Board is confronted  with
a conflict between  an  Air  Force  medical  evaluation  and  a  board
conclusion which considered the applicant’s depression to be mild  and
merely a “mood disorder” and a DVA evaluation that found it  to  be  a
severe, major depression, separate from the other  medical  condition.
It is counsel’s view  that  in  such  cases,  when  there  is  clearly
conflicting evidence from two Federal agencies, the decision should be
in favor of the service member who developed both of these  conditions
while serving his country.  It is clear the applicant had  his  career
shortened considerably and his life functions  have  been  permanently
altered.

Counsel’s complete response, with attachment, is at Exhibit G.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

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

2.  The application was timely filed.

3.  Insufficient relevant evidence has been presented  to  demonstrate
the  existence  of  error  or  injustice.   The  applicant's  complete
submission was thoroughly  reviewed  and  his  contentions  were  duly
noted.  However, we do not find the  applicant’s  assertions  and  the
documentation  presented  in  support  of  his   appeal   sufficiently
persuasive  to  override  the  rationale  provided  by   the   Medical
Consultant.  The  evidence  of  record  indicates  the  applicant  was
permanently retired by reason of physical disability with a 60 percent
compensable rating after successfully appealing  to  have  his  rating
increased from 30 and 40 percent,  respectively,  to  the  60  percent
rating.  He had requested his rating be increased between  60  and  70
percent.  He now requests his rating be increased to a maximum  of  75
percent.  However, after a thorough review of facts and  circumstances
of this case, no evidence  has  been  presented  which  shows  to  our
satisfaction the applicant was improperly diagnosed or inappropriately
rated.  In view of the foregoing, and in  the  absence  of  sufficient
evidence to the contrary, we adopt the Medical Consultant’s  rationale
as the basis for our decision the applicant has failed to sustain  his
burden of establishing that he has suffered  either  an  error  or  an
injustice.  Accordingly, we find  no  compelling  basis  to  recommend
granting the relief sought in this application.

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   issues   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 AFBCMR Docket Number BC-
2003-03494 in Executive Session on 6 Oct 04, under the  provisions  of
AFI 36-2603:

      Mr. Charles E. Bennett, Panel Chair
      Ms. Barbara R. Murray, Member
      Mr. Albert C. Ellett, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 3 Oct 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, Medical Consultant, dated 11 May 04.
    Exhibit D.  Letter, SAF/MRBR, dated 12 May 04.
    Exhibit E.  Letter, counsel, dated 21 Jul 04.
    Exhibit F.  Letter, AFBCMR, dated 29 Jul 04.
    Exhibit G.  Letter, counsel, dated 23 Sep 04, w/atch.




                                   CHARLES E. BENNETT
                                   Panel Chair