RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-01878

      XXXXXXX    COUNSEL:  DAVID P. SHELDON

            HEARING DESIRED:  YES

MANDATORY CASE COMPLETION DATE:  14 DEC 06

_________________________________________________________________

APPLICANT REQUESTS THAT:

His records be corrected to reflect he was  medically  retired  rather
than honorably released from active duty.

In the alternative, his records be corrected to reflect  he  does  not
have a service-disqualifying condition preventing him from serving  in
a Category B Reserve position.

His DD Form 214, Certificate of Release or Discharge from Active Duty,
be amended to reflect award of the Air Force Achievement Medal  (AFAM)
on 13 Mar 00.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The finding by the Physical Evaluation Board (PEB) that he was fit for
duty was erroneous  and  contrary  to  the  established  evidence  and
controlling regulations.

The finding that he was not physically qualified to affiliate with the
Air Force Reserve was  a  material  error  that  worked  an  injustice
warranting corrective action.

He was awarded the AFAM on 13 Mar 00; however, it is not reflected  on
his DD Form 214.

In support of his appeal, the applicant provided  a  counsel’s  brief,
medical documentation, documents pertaining to  his  AFAM,  and  other
documents associated with the matter under review.

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

_________________________________________________________________

STATEMENT OF FACTS:

Applicant’s available  military  personnel  records  indicate  he  was
appointed an officer, Reserve of the Air Force,  and  was  voluntarily
ordered to extended active duty on 14 Feb 98.

On 1 Apr 02, a Medical Evaluation Board (MEB) convened and established
a  diagnosis  of  severe  sleep  apnea.   The  MEB   recommended   the
applicant’s case be referred to an Informal Physical Evaluation  Board
(IPEB).

On 12 Apr 02, an Informal Physical Evaluation  Board  (IPEB)  convened
and established a diagnosis of sleep apnea, irritable bowel  syndrome,
and an adjustment disorder.  The IPEB determined the applicant’s sleep
apnea and irritable bowel  syndrome  were  conditions  that  could  be
unfitting but were not unfitting at  that  time,  and  the  adjustment
disorder was a condition that was not  ratable  or  compensable.   The
IPEB recommended the applicant be returned to duty.

On 18 Apr 02, the Secretary of the Air Force directed the applicant be
returned to duty.

Applicant was honorably released from active on 19 Jul  02  under  the
provisions of AFI 36-3207 (Completion of Required Active Service).  He
was credited with 9 years, 2 months,  and  16  days  of  total  active
service.

A Department of Veterans Affairs (DVA) Rating Decision,  dated  25 Apr
05, indicates the applicant was granted  service-connected  disability
compensation for severe central/obstructive sleep apnea with shortness
of breath and severe aggressive  exert  ional  dyspnea  (50  percent),
irritable bowel syndrome with chronic  abdominal  pain  (30  percent),
adjustment disorder with anxiety and depression (30  percent),  for  a
combined compensable rating of 80 percent from 20 Jul 02.

A DD Form 215, dated 26 Jul 05, indicates the AFAM was  added  to  the
applicant’s records.

The remaining  relevant  facts  pertaining  to  this  application  are
contained in the letter prepared by the Medical Consultant.

_________________________________________________________________

AIR FORCE EVALUATION:

The  Medical  Consultant  recommends  denial  noting   the   applicant
separated at the expiration of his term of obligated service following
evaluation in  the  disability  evaluation  system  for  sleep  apnea,
irritable bowel syndrome and an adjustment disorder.  In his view, the
preponderance of the evidence of the record indicated that action  and
disposition  in  this  case  were  proper  and  equitable   reflecting
compliance with Air Force directives that implement the law, and  that
no change in the records is warranted.

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

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel  reviewed  the  advisory  opinion  and  furnished  a  response
indicating the bottom line is that based on an erroneous determination
by the PEB, the applicant separated from the  Air  Force.   Therefore,
the Board should rate him accordingly and find  that  he  should  have
medically retired.

Counsel’s complete 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.  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
diagnosed by an IPEB with sleep apnea, irritable bowel  syndrome,  and
an adjustment disorder.  The IPEB  determined  the  applicant’s  sleep
apnea and irritable bowel  syndrome  were  conditions  that  could  be
unfitting but were not unfitting at  that  time,  and  the  adjustment
disorder was a condition that was not ratable or  compensable.   As  a
result, the IPEB recommended the applicant be returned to duty,  which
was directed by the Secretary of the  Air  Force.   Subsequently,  the
applicant voluntarily  separated  after  completion  of  his  required
active service.  After his release from active duty,  he  applied  for
entry into the Air Force Reserve but was denied accession  because  of
his sleep apnea and persisting symptoms  of  an  adjustment  disorder.
After a thorough review of the facts and circumstances of  this  case,
no evidence has been presented which shows  to  our  satisfaction  the
applicant was unfit to perform the duty of his rank or office while on
active duty, and should not have been returned to duty, or that he was
improperly denied accession into the Air Force Reserve.   In  view  of
the foregoing, and in  the  absence  of  sufficient  evidence  to  the
contrary, we agree with the recommendation of the  Medical  Consultant
and adopt his rationale  as  the  basis  for  our  decision  that  the
applicant has failed to sustain his  burden  of  establishing  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.  We note that a DD Form 215 indicates the AFAM has  been  added  to
the applicant’s records.  Therefore, it appears no further  action  by
this Board is necessary.

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   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-
2005-01878 in Executive Session on 19 Sep 06, under the provisions  of
AFI 36-2603:

      Ms. Kathleen F. Graham, Panel Chair
      Mr. Elwood C. Lewis, Member
      Ms. LeLoy W. Cottrell, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 9 Sep 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, Medical Consultant, dated 3 Aug 06.
    Exhibit D.  Letter, SAF/MRBR, dated 4 Aug 06.
    Exhibit E.  Letter, counsel, dated 17 Aug 06.





                                   KATHLEEN F. GRAHAM
                                   Panel Chair