RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-00397
            INDEX CODE:  108.02

            COUNSEL:  NONE

            HEARING DESIRED: YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

His initial disability rating of 30%  effective  7  December  1999  be
changed to 100% disability effective 10 April 1998.

_________________________________________________________________

APPLICANT CONTENDS THAT:

On 17 May 1997 he suffered a cardiac arrest while on active duty.   An
angioplasty was performed and on 9 April 1998 and he was placed on the
Temporary Disability Retired List (TDRL) with a 30% disability rating.
 In July 1998, he experienced another  heart  attack  and  had  triple
bypass  surgery.   Subsequently,  the  Veteran’s  Administration  (VA)
awarded him  a  disability  rating  of  60%  which  upgraded  to  100%
unemployable retroactive to 31 March 1998.  On 15 October 1999, he was
advised he was entitled to a full and  fair  hearing  prior  to  being
permanently retired for  physical  disability.   He  was  directed  to
appear before a Physical Evaluation Board (PEB) for a  formal  hearing
at Lackland AFB on 15 November 1999.  Just prior to meeting  the  PEB,
he spoke with legal counsel and was led to believe  he  should  accept
the 30% offer as he could lose his case and be left with no percentage
at all.  After experiencing two major heart attacks,  angioplasty  and
by pass surgery, two major back surgeries and experiencing  inner  ear
problems he accepted the 30% and waived his right to meet the PEB.  He
now feels this was not the right thing to do but because of his health
and fear of what the legal counsel  told  him  he  accepted.   He  was
permanently retired on 7 December 1999  with  a  30%  disability.   He
states there are two  other  service-connected  health  issues  he  is
dealing with that the Air Force did not consider while processing  him
for disability retirement:  lumbar  disc  disease  and  a  history  of
sinusitis.  He feels his award would have  been  higher  had  the  Air
Force considered the additional health  issues  he  is  now  suffering
with.  Upon doing research on the Concurrent Receipt issue,  he  found
other Chapter 61 retirees (eligible for Reserve retired pay at age 60)
were in fact drawing more compensation based on  their  increased  Air
Force disability ratings after being found unfit for  similar  medical
problems.  The 30% award coupled with the inability to draw concurrent
receipt of pay prior to age 60 unduly penalizes Guard/Reserve members,
especially Chapter 61  medical  retirees.   He  notes  his  life  long
earning potential has been impacted in a negative  fashion  especially
when one considers he was at his career peak as an officer.  He  notes
three fellow officers, similar to him in grade and  time  in  service,
have went on to reap the financial rewards of a  military  career  and
have been promoted to colonel and brigadier  general.   He  feels  the
original rating of 30% for the heart was justifiable on 9  April  1998
for temporary retirement.  However, after the second heart attack with
triple-bypass surgery in July 1998, the recurrence and hospitalization
for sinusitis, and two major back surgeries with subsequent decline in
health prior to his permanent retirement he feels  his  legal  counsel
did not take into consideration the combined  disabilities.   The  Air
Force simply failed to conduct  a  full  retirement  physical  thereby
overlooking  the  Veteran’s  Administrations   Schedule   for   Rating
Disabilities (VASRD) and his 100% unemployability.

In support of his  appeal,  the  applicant  has  provided  a  personal
statement, copies of Air Force Disability System  information,  and  a
copy of his VA decision.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant served on active duty in enlisted status from 21 October
1966 to 15 January 1970.  After a tour in Vietnam, he  was  discharged
and  transferred  to  the  inactive  Reserve.   He  was   subsequently
discharged from the inactive Reserve on 25 July 1971.  On 5 June 1976,
after approximately five years in a civilian status, he joined the Air
National Guard (ANG) as an officer.  On 14 May 1997, while on extended
active duty (EAD) he experienced a myocardial  infarction  complicated
by  cardiac  arrest.   He  underwent   cardiac   catheterization   and
angioplasty in an attempt to open blocked arteries.  On 8 April  1998,
he underwent a Medical Evaluation Board  (MEB)  and  was  subsequently
placed on the TDRL with a 30% disability rating.  On 7 July  1998,  he
experienced recurrent anginal chest pain diagnosed as unstable  angina
and he underwent urgent cardiac catheterization  demonstrating  severe
progression of  multiple  blockages  in  his  coronary  arteries.   He
underwent emergency coronary artery bypass surgery on 8 July 1998.  He
was reevaluated in March  1999  and  demonstrated  retention  of  good
exercise tolerance on  stress  testing  though  a  worsening  of  left
ventricle wall motion was noted.  In April, and again in May 1999,  he
underwent back surgery with  good  results.   On  25  June  1999,  his
orthopedic surgeon noted there was no pain and the applicant was doing
“extremely well.”  On 4 August  1999,  a  cardiology  TDRL  evaluation
noted ongoing anginal chest pain associated with emotional stress  and
exertion limiting physical activity.  On 25 August 1999, the  Informal
Physical Evaluation Board  (IPEB)  concluded  his  condition  remained
unfitting  for  military  service,  had  stabilized  and   recommended
permanent disability retirement with 30%.  He disagreed and demanded a
Formal PEB (FPEB) hearing.  After  consulting  with  military  counsel
however, he waived his right to the FPEB and accepted the findings and
recommendations of the IPEB.  He was  permanently  disability  retired
effective 7 December 1999.  He had served for a total of 27 years,  10
months, and 4 days of satisfactory Reserve and active service and  was
serving in the grade of lieutenant colonel.

_________________________________________________________________

AIR FORCE EVALUATION:

The AFBCMR Medical Consultant is of the opinion that the preponderance
of the evidence more nearly approximated the 60 percent rating at  the
time of his permanent disability retirement and recommends  change  of
records to show permanent retirement  for  his  heart  disease  at  60
percent.

The military service disability systems, operating under Title 10, and
the Department of Veteran’s Affairs (DVA) disability system  operating
under  Title  38,  are  complementary  systems  not  intended  to   be
duplicative.  Operating under different laws with a different purpose,
independent decisions/determinations made by the DOD  under  Title  10
and the DVA under  Title  38  are  not  determinative  or  binding  on
decisions made by the other.  The mere fact that  the  DVA  may  grant
service connection or certain ratings does not  establish  eligibility
for similar action  from  the  Air  Force.   The  military  Disability
Evaluation System (DES) can only offer compensation for those  service
incurred disease or injuries  which  specifically  tendered  a  member
unfit for continued active service, were the cause for termination  of
their career, and only then for the degree of  impairment  present  at
the time of separation and not based  on  future  possibilities.   The
mere presence of a medical condition does not  qualify  a  member  for
disability evaluation.  Once an individual has  been  declared  unfit,
the Service Secretaries are required by  law  to  rate  the  condition
based on the degree of disability at the time of permanent disposition
and not on future events.  No change in disability  rating  can  occur
after permanent disposition, even  though  the  condition  may  become
better or worse.  The applicant’s  argument  his  sinusitis  and  back
problems should have been considered by  the  Air  Force  when  making
their determination are without merit as sinusitis was not  considered
unfitting at the time of his retirement and  his  back  problems  were
encountered  after  he  retired.   The  two  disability  systems   are
complementary as noted however, because the DVA is not hampered by the
rule of fitness and can reconsider rating of disabilities  long  after
retirement  or  separation  with  only  service  connection,  as  it’s
prerequisite.

The remaining pertinent medical facts are contained in the evaluation
prepared by the BCMR Medical Consultant at Exhibit C.



APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

While he concurs with the finding by the BCMR  Medical  Consultant  of
permanent disability retirement with a compensable rating of  60%,  he
requests the effective date be adjusted to 8 April 1998 (the  date  of
his placement on the TDRL) rather than 7 December 1999.

The applicant’s response 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 an error or injustice.  After a  careful  review  of  the
evidence of record, we are of the opinion a changed in the applicant’s
disability  rating  is  warranted.   We  note   the   AFBCMR   Medical
Consultant’s findings that although action  and  disposition  in  this
care are proper and equitable reflecting  compliance  with  Air  Force
directives that implement the law, the medical consultant opines  that
the nature of the applicant’s heart  disease  warranted  a  disability
rating of 60% rather  than  30%.   Therefore  we  recommend  that  the
records be corrected as indicated below.

4. Insufficient relevant evidence has been  presented  to  demonstrate
the existence of an error or an injustice in regards to the backdating
of his retirement to the day he was entered on the TDRL.  Placement on
the TDRL is not retirement but a temporary period of observation  used
to eventually determine either fitness to return to duty or disability
retirement.  Therefore, in the absence of evidence to the contrary, we
find no compelling basis to recommend granting the  relief  sought  in
this application.

______________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT be corrected to show that on 7 December 1999, he
was permanently disability retired with a  disability  rating  of  60%
rather than 30%.

______________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 26 April 2006, under the provisions  of  AFI  36-
2603:

      Mr. Jay H. Jordan, Panel Chair
      Mr. James A. Wolffe, Member
      Mr. Michael V. Barbino, Member

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

    Exhibit A.  DD Form 149, dated 28 Jan 05, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, BCMR Medical Consultant, dated 29 Mar 06.
    Exhibit D.  Letter, SAF/MRBR, dated 29 Mar 06.
    Exhibit E.  Letter, APPLICANT, dated 6 Apr 06, w/atchs.




                                   JAY H. JORDAN
                                   Panel Chair



                         DEPARTMENT OF THE AIR FORCE
                                WASHINGTON DC


[pic]
Office Of The Assistant Secretary



AFBCMR BC-2005-00397




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 on 7 December 1999, he
was permanently disability retired with a disability rating of 60% rather
than 30%.





     JOE G. LINEBERGER

     Director

     Air Force Review Boards Agency