RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-01029
            INDEX CODE: 108.02  110.02
      XXXXXXX    COUNSEL:  None

      XXXXXXX    HEARING DESIRED:  Not Indicated

MANDATORY CASE COMPLETION DATE:  9 May 07

_________________________________________________________________

APPLICANT REQUESTS THAT:

His 1976 voluntary resignation and honorable discharge be changed to a
medical retirement with a payment of $500.00 per month.

_________________________________________________________________

APPLICANT CONTENDS THAT:

After pilot training, he was  sent  to  survival  training,  where  he
injured his back.  He received no treatment other  than  pain  killers
and bed rest.  He received no separation physical,  which  would  have
resulted in disability benefits due to his bad back.   The  Department
of Veterans Affairs (DVA) took nine  years  to  provide  his  military
records and award him a disability rating.  The pain  he  has  endured
resulted in two divorces, two bankruptcies,  and  12  different  jobs.
His whole life has been affected by his poor health.

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

_________________________________________________________________

STATEMENT OF FACTS:

The following information was extracted from the applicant’s  military
personnel records (Exhibit B) and the official documents  supplied  by
him in his application (Exhibits A and E).  The  applicant’s  complete
service medical records  (SMR)  were  not  available  for  the  AFBCMR
Medical Consultant to review.

The applicant enlisted in the Regular Air Force on 2 Jun 72, but  then
was honorably discharged in the grade of staff sergeant on 27 Aug  72,
after 2 months and 26 days of active service to accept a commission.

On 28 Aug 72, the applicant was commissioned a 2nd lieutenant (2LT) in
the Air Force Reserve and entered extended  active  duty  (EAD)  as  a
student  in  undergraduate  pilot  training  (UPT).    The   applicant
graduated from UPT on 7 Dec 72 and was awarded the aeronautical rating
of pilot.  He was assigned as a  pilot  to  the  916th  Air  Refueling
Squadron (916 ARS) at Travis AFB, CA.

A 20 May 74 medical entry reported  the  applicant  injured  his  back
several years prior when he lifted a heavy object over a fence and was
experiencing severe pain.  The entry indicated x-rays  were  performed
and the applicant was placed on bed rest with Valium.   He  was  taken
off flying status.   A  medical  entry/orthopedic  consultation  dated
22 May/3 Jun  74,  indicated  the  applicant  had  been   experiencing
increasing low back pain, especially after exercise.  His recent  pain
had begun after horseback riding.

A  13 Jun  74  orthopedic  entry  reflected  the  applicant  indicated
complete relief from pain on a rest regimen and  he  was  returned  to
full duty.

The applicant was promoted to  the  temporary  Reserve  grade  of  1st
lieutenant (1LT) with a date of rank (DOR) of 28 Aug 74,  and  to  the
permanent Reserve grade of 1LT with a DOR of 28 Aug 75.

On 28 Jun 76, the applicant requested he be released from active duty,
effective 1 Oct 76, and that he be given a Reserve commission.

According to a document dated 8 Jul 76, the applicant  requested  that
he be released from EAD for miscellaneous reasons under the provisions
of AFR 36-12  because  of  the  “unfavorable  reaction  by  Air  Force
authorities to a misdemeanor conviction  [he]  received  recently  for
receiving stolen property.”  The applicant claimed he told a yard  boy
he employed that he was trying to purchase  a  used  typewriter.   The
yard boy’s friend told the applicant he had a used typewriter he could
sell.  While he was on two weeks of temporary  duty  (TDY),  his  wife
told him the friend dropped off a used typewriter and  would  sell  it
for $85.00.  The applicant indicated he had no reason to  suspect  the
property had been stolen from a local school since both the  yard  boy
and the  friend  came  from  military  families.   However,  after  he
returned, the police charged both  him  and  his  wife  for  receiving
stolen property.  He informed his squadron commander at the time,  who
told him the military would probably not take any action against  him.
His civilian attorney advised him that  the  district  attorney  would
drop any felony charge if either his wife or he pled no contest  to  a
misdemeanor.  He decided to enter the plea to protect his  wife’s  job
and because he had been assured no action would be taken  against  him
by the Air Force.  On 3 Jun 76, he was sentenced to 10 days, one  year
probation, and court costs.  Then a new squadron  commander  told  him
that the Air Force wanted him to request a release from  active  duty.
Since it appeared the Air Force did not wish  for  him  to  remain  on
active duty and the
incident would seriously hinder his career, he requested release  from
active duty in the best interests of the Air Force and himself.

On 16 Aug 76, the Secretary  of  the  Air  Force  (SAF)  accepted  the
applicant’s resignation and directed he  be  honorably  discharged  as
soon as possible.

On 28 Sep 76, the acting SAF directed the applicant’s name be  removed
from the list of officers recommended for promotion to  the  temporary
grade of captain by the Fiscal Year 1977A  (FY77A)  Central  Temporary
Captain Selection Board.

On 12 Jul 76, the  applicant  underwent  a  separation  physical.   He
indicated on the  Report  of  Medical  History  that  his  health  was
“excellent,” no medications were needed, and he had no recurrent  back
pain, arthritis/rheumatism,  joint/bone  pain  or  any  other  medical
problem.  The Report of Medical Examination  reflected  no  spinal  or
other problems and found the applicant world-wide qualified.

On 29 Jul l976, the applicant indicated on AF Form  452,  Serviceman’s
Statement Concerning Application of  Compensation  from  the  Veterans
Administration, that he did  not  wish  to  file  an  application  for
disability compensation at that time.

The applicant’s DD Form 214  reflects  that,  on  27 Aug  76,  he  was
honorably discharged in  the  grade  of  1LT,  voluntary  resignation-
miscellaneous reasons at member’s request, after 4  years,  2  months,
and 26 days of active service as an officer for a total of 4 years,  5
months, and 12 days of active service.  Since  the  applicant  was  an
officer,  a  reenlistment  eligibility  (RE)  code  would  not  apply.
Special Order No. AB-3838, dated 27 Aug 76, reflects the applicant was
discharged, not released, from active duty.

On 22 Apr 83, the applicant appealed to the Air Force Discharge Review
Board (AFDRB) to have the narrative reason for his  discharge  changed
so he could enlist in the Reserves.  The applicant’s military  records
were incomplete but he indicated in his application that he was  given
the  choice  of  either  discharge  or  face  possible   court-martial
proceedings due to his wife purchasing a  typewriter  which  had  been
stolen from a local school while he was  TDY.   The  thief  had  given
their names and the police found the typewriter in  their  house.   He
and his wife cooperated fully.  During a  personal  appearance  before
the AFDRB on 14 Dec 83, the applicant indicated he, in  fact,  desired
reinstatement to active duty. Since the  AFDRB  had  no  authority  to
direct reinstatement, his application was transferred to the AFBCMR on
5 Jan 84.

On 20 Feb 85, the AFBCMR denied the applicant’s request  to  have  the
reason and authority of his separation changed so  he  could  re-enter
the Reserves or active duty.  The  Air  Force  had  indicated  in  its
advisory it was unable to make a valid  recommendation  regarding  the
applicant’s separation based on the  limited  documentation  available
and the absence of any new substantive  documentation.   Further,  the
applicant  had  not  provided  any  pertinent  documentation  although
requested to do so.

On 7 Oct 02 (after previously denying the applicant’s  earlier  claims
for service connection for a ruptured disc at L4-S1 with a tear in the
annulus at L4-5 and L5-S1),  the  DVA  awarded  the  applicant  a  60%
disability rating, effective 30 Jul 99, for  service-connected  lumbar
strain with degenerative joint disease and degenerative disc disease.

In Mar 04, the applicant submitted an application requesting back  pay
of 40% disability from Aug 76 to May  00.   However,  the  applicant’s
service medical records (SMR) were not available.  The  AFBCMR  intake
office at Randolph  AFB,  SAF/MRBR,  requested  the  applicant  either
provide copies of his military medical records since his SMR  was  not
available or allow his case  to  be  closed  since  it  could  not  be
adjudicated without military medical records.  However, the  applicant
indicated he did not want his  case  closed  and  resubmitted  another
application  on  25 Aug  05.   SAF/MRBR  continued  to   request   the
applicant’s SMR from the DVA on 9  and 22 Sep 05, before finally being
advised that the SMR was unavailable because the applicant  had  filed
an appeal with regard to his  claim  with  the  DVA.   On  11 Oct  05,
SAF/MRBR advised the applicant that, if he wished to continue to  have
his AFBCMR application processed, it would most likely be without  his
SMR since those documents were being reviewed by the DVA.

_________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/DPPD notes the applicant provided some medical progress  notes
and orthopedic consult from 1973  and  1974,  at  which  time  he  was
returned to full duty.  They advise that the preponderance of evidence
reflects that  the  Physical  Disability  Division  never  received  a
referral to the Physical Evaluation Board (PEB)  and  therefore  could
not  have  given  the  applicant  a  medical  discharge.   Denial   is
recommended.

A complete copy of the evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant claims his wife bought a stolen typewriter while he  was
on temporary duty.  The Air Force treated him like a criminal and gave
him the option of either resigning his commission or facing  a  court-
martial.  He was injured while on active duty and was originally given
a Nov 76 date to separate.  However, he was
forced to sign false documents, which  incorrectly  indicated  he  was
unable to enter the Reserves, and he was forced out earlier in Aug  76
without proper processing or a separation physical.

The applicant’s complete response, 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 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  to  warrant   changing   the
applicant’s  voluntary  resignation  and   honorable   discharge   for
miscellaneous reasons to a medical retirement.   His  contentions  are
duly noted; however, we do not find these  uncorroborated  assertions,
in  and  by  themselves,  sufficiently  persuasive  to  overcome   the
rationale provided by the Air Force or the evidence in  the  available
records, including those submitted by the  applicant  himself.   Title
10, USC, Chapter  61,  which  governs  the  Air  Force  system,  first
requires a determination of unfitness and that the degree of unfitness
be based  upon  the  member’s  condition  at  the  time  of  permanent
disposition--not  upon  possible  future  events.   Further,  while  a
military member’s various medical problems  may  be  considered,  only
those that render him unfit for military service will be  rated.   For
an individual to be considered unfit for military service, there  must
be a medical condition so severe that it prevents performance  of  any
work commensurate with rank and experience.  HQ AFPC/DPPD advised that
the  preponderance  of  evidence  reflected  the  Physical  Disability
Division never received a referral to the PEB.  The submitted  medical
entries indicate the applicant’s back pain responded to the  treatment
provided  and  he  was  returned  to  full  duty.   Contrary  to   his
assertions, the applicant was given a separation  physical  on  12 Jul
76, during which he reported his health was “excellent.”   The  Report
of Medical Examination reflected no spinal or other problems and found
him world-wide qualified.  On 29 Jul 76, the  applicant  indicated  he
did not wish to file an application for disability  compensation  with
the Veterans Administration.  Interestingly, in 1983, he appealed  for
a change in the narrative reason for discharge so he could  enlist  in
the Reserves.  During a  personal  appearance  before  the  AFDRB,  he
indicated he desired reinstatement  to  active  duty.   The  applicant
apparently felt fit enough for active service seven  years  after  his
discharge.  He has  submitted  no  persuasive  evidence  demonstrating
that, at the time of his separation, he  suffered  from  an  unfitting
condition  requiring  processing  through  the  Air  Force  disability
evaluation system, his  voluntary  resignation  was  coerced,  or  his
requested honorable discharge for miscellaneous reasons was unjust  or
improper.  Title  38,  USC,  which  governs  the  DVA  system,  allows
awarding compensation for acquired and altered  conditions  that  were
not unfitting for military service but could affect  a  person’s  life
style and future employability.  The applicant has a claim before  the
DVA, and this seems to be  the  appropriate  avenue  for  his  medical
condition.  We therefore agree with the  recommendations  of  the  Air
Force 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 4 April 2006 under the provisions of AFI 36-2603:

                 Mr. Thomas S. Markiewicz, Chair
                 Ms. Mary C. Puckett, Member
                 Ms. Janet I. Hassan, Member

The following documentary evidence relating to AFBCMR Docket Number BC-
2004-01029 was considered:

   Exhibit A.  DD Form 149, dated 25 Aug 05, w/atchs.
   Exhibit B.  Applicant's Limited Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/DPPD, dated 28 Nov 05.
   Exhibit D.  Letter, SAF/MRBR, dated 2 Dec 05.
   Exhibit E.  Letter, Applicant, dated 28 Dec 05, w/atchs.




                                   THOMAS S. MARKIEWICZ
                                   Chair