RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-00306
            INDEX CODE 108.02
            COUNSEL:  None

            HEARING DESIRED:  No

_________________________________________________________________

APPLICANT REQUESTS THAT:

His 30% medical retirement from the Air  Force  be  increased  to  the
Department of Veterans Affairs (DVA) rating of 90%.

_________________________________________________________________

APPLICANT CONTENDS THAT:

When he  was  first  retired,  the  doctors  did  not  know  what  his
disability would be  but  knew  he  was  not  going  to  be  worldwide
deployable.  The true state of his disability is now known to be total
and permanent.  When he was  removed  from  the  Temporary  Disability
Retirement  List  (TDRL)  and  placed  on  the  Permanent   Disability
Retirement  List  (PDRL),  his  disability  rating  was  lowered.   He
appealed this rating but was told  to  take  what  was  offered.   The
medical board commander wanted to save the Air Force money by  cutting
disability ratings.  This was not critical at the time because he  had
a good job.  However, now he’s unable to work and needs the  money  to
sustain his family.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant entered active  duty  on  8  May  80  and  served  as  a
navigator instructor in the grade of captain.

On 26 Sep 86, he was evaluated by a rheumatologist for low back  pain,
right elbow and right shoulder pain.  At this point, he had at least a
one-year history of low back pain with  symptoms  progressing  despite
medication.

On 4 Apr 89, he was disqualified from continued  flying  duties  as  a
navigator instructor because of continued pain.  He cross-trained as a
computer systems  integrator  (software  engineer)  but  continued  to
experience back and joint pain.  On 12 Feb 90, he was  diagnosed  with
undifferentiated spondyloarthropathy.

On 13 Apr 90, a Medical Evaluation Board (MEB) convened  and  referred
the applicant’s  case  to  a  Physical  Evaluation  Board  (PEB).   An
Informal PEB  (IPEB)  convened  on  30  Apr  90  and  recommended  the
applicant be returned  to  duty  because  he  had  an  excellent  duty
performance history and no  documented  physical  profile  limitations
that would reasonably preclude him from fulfilling the duties  of  his
rank and office.  The applicant indicated his nonconcurrence on 7  May
90.  His supervisor advised he observed continuing degradation in  the
applicant’s physical condition.

On 31 May 90, a Formal PEB (FPEB) diagnosed the  applicant  as  having
seronegative spondyloarthropathy involving the shoulders,  left  knee,
right elbow and right sacroiliac joint, with associated  fatigue.   He
was found to be unfit for worldwide duty and recommended for placement
on the TDRL at 40%.  The applicant concurred.

On 23 Jul 90, the applicant was placed on the TDRL  in  the  grade  of
captain, with a 40% rating, after 10 years, 2 months and  16  days  of
active service.

An IPEB convened on 19 Nov 91  and  found  the  applicant’s  condition
improved but still unfitting.  The board found him sufficiently stable
to warrant final  disposition  of  permanent  retirement  at  30%  for
mechanical low back pain, versus undifferentiated spondyloarthropathy,
and left knee pain secondary to seronegative spondyloarthropathy.  The
applicant did not concur and requested an FPEB on 16 Dec 91.  However,
on 31 Jan 92, the applicant waived his right to an FPEB.

The applicant  was  permanently  retired  in  the  grade  of  captain,
effective 15 Feb 92, with a rating of 30%.

The applicant  had  been  granted  a  DVA  disability  rating  of  20%
beginning with his placement on the TDRL in 1990 until 2002,  when  it
was increased to 80%.   His  DVA  rating  was  increased  to  a  total
combined rating of 90% in May 03.

_________________________________________________________________

AIR FORCE EVALUATION:

The AFBCMR  Medical  Consultant  asserts  review  of  the  applicant’s
medical records provide no evidence that his  condition  was  unstable
and warranted continuation on the TDRL.  The fact that the applicant’s
DVA disability rating was less than his Air Force rating for over  ten
years also supports these conclusions.  Members appearing  before  the
FPEB are provided legal counsel, free of charge,  who  represents  the
interests of the member, not the Air Force.  The  Consultant  explains
the differences between the DVA  disability  system,  operating  under
Title  38,  USC,  and  the  Military  Disability  Evaluation   System,
operating under Title 10, USC.  Action and disposition  in  this  case
were proper and equitable and no change in the records is warranted.

A complete copy of the evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A complete copy of the Air  Force  evaluation  was  forwarded  to  the
applicant on 19 Nov 04 for review and comment within 30 days.   As  of
this date, this office has received no response.

_________________________________________________________________

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.  After a thorough review  of  the
evidence  of  record  and  the  applicant’s  submission,  we  are  not
persuaded his disability retirement rating should  be  increased  from
30% to 90%.  Although the Air Force rates disabilities  in  accordance
with the VA Schedule for Rating Disabilities, the Air  Force  and  the
DVA are separate federal agencies and operate under different laws and
policies, as explained by the Medical Consultant in his advisory.  The
applicant has not shown  his  condition  was  unstable  and  warranted
continuation on the TDRL.  In  fact,  for  over  10  years  after  his
permanent disability retirement from the Air  Force,  the  applicant’s
DVA disability rating was less than his Air  Force  rating.   The  Air
Force based its disability rating  on  the  applicant’s  condition  in
1990.  In accordance with its purpose, the  DVA  has  increased  their
ratings as the applicant’s unfitting condition deteriorated and/or  he
acquired additional medical  problems.   The  applicant  was  provided
counsel during the Air Force  proceedings  and,  other  than  his  own
allegations, submits no evidence demonstrating his  disability  rating
was improperly and incorrectly determined.  We  therefore  agree  with
the recommendations of the Medical Consultant and adopt the  rationale
expressed as the basis for our decision that  the  applicant  has  not
sustained his  burden  of  having  suffered  either  an  error  or  an
injustice.  In view of the above and absent persuasive evidence to the
contrary, we find no compelling basis to recommend granting the relief
sought.

_________________________________________________________________

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 12 January 2005 under the provisions of  AFI  36-
2603:

                 Ms. Martha J. Evans, Panel Chair
                 Mr. Gregory A. Parker, Member
                 Mr. Alan A. Blomgren, Member

The following documentary evidence relating to AFBCMR Docket Number BC-
2004-00306 was considered:

  Exhibit A.  DD Form 149, dated 23 Jan 04, w/atchs.
  Exhibit B.  Applicant's Master Personnel Records.
  Exhibit C.  Letter, AFBCMR Medical Consultant, dated 10 Nov 04.
  Exhibit D.  Letter, SAF/MRBR, dated 19 Nov 04.




                                   MARTHA J. EVANS
                                   Panel Chair