RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBER:  BC-2005-01919
                                             INDEX CODE:  100.00
      XXXXX                             COUNSEL:  None

                                        HEARING DESIRED:  NO


MANDATORY CASE COMPLETION DATE:  17 December 2006


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APPLICANT REQUESTS THAT:

He be retired by reason of physical disability.

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APPLICANT CONTENDS THAT:

He should have received a disability retirement in 1990 due to an injury  he
received in 1987 while performing Temporary Duty (TDY) to  the  Philippines;
however, his supervisor force him out of the service.

On the date in question, he was struck  by  a  vehicle  while  crossing  the
street at a busy intersection, and was thrown 40 feet.  He was  then  struck
by another vehicle on his way to the ground.  As a result of  the  accident,
he had severe back problems, which have worsened  over  time.   Due  to  his
medical problems, his supervisor was constantly reminding him  that  he  was
unfit for military service and the government was not going  to  pay  him  a
disability.  His supervisor told him that he was going to  get  him  kicked-
out of the Air Force another way and assured him he would receive  an  other
than  honorable  conditions  (UOTHC)  discharge.   When  the  time  came  to
reenlist, he  was  strongly  urged  not  to  do  so,  so  he  did  not.   He
subsequently joined the Reserves and was  forced  out  of  that  service  as
well.   As  time  passed  his  back  pain  became  increasing  more  severe,
resulting in  extreme  constant  pain,  requiring  frequent  visits  to  the
Department of Veterans Affairs (DVA) for treatment.

In support of the appeal,  applicant  submits  extracts  from  his  military
service medical records.

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

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STATEMENT OF FACTS:

Applicant enlisted in the Regular Air  Force  on  20  April  1981.   He  was
progressively promoted to the grade of staff sergeant  (E-5).   His  request
for exemption from Stop Loss based on  hardship  was  approved  and  he  was
honorably discharged on 15 November 1990, under the provisions  of  AFR  39-
10, Completed Extended Enlistment.  He enlisted in the Air Force Reserve  on
9 December 1991.  On 14 July 1992, he was  released  from  active  duty  and
transferred to the Air National Guard (ANG).  On  1 November  2000,  he  was
transferred to the Retired Reserve List and will  be  eligible  for  Reserve
retired pay at age 60. He completed 15 years, 10  months,  and  29  days  of
satisfactory service.

The Department of Veterans Affairs (DVA) awarded him a combined  compensable
disability  percentage  of  50%  for  spinal  fusion  L5-S1,  post-traumatic
headaches,  arthritis  of  lumbosacral  spine  and  right  knee,   neurology
abnormality of sensory sensitivity over the  anteriolateral  aspect  of  the
left thigh, chondromalacia left knee, and bone graft surgery scar.

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AIR FORCE EVALUATION:

The BCMR  Medical  Consultant  recommends  the  application  be  denied  and
states, in  part,  that  although  the  applicant  originally  incurred  his
chronic low back pain during his service in the RegAF,  the  progression  of
his condition to the point of disqualification was not  related  to  service
and was therefore, not eligible for disability  compensation.   Further,  he
was not on extended active duty (EAD) for a period of 31  days  or  more  at
the  time  his  back  conditions  worsened  and   was   not   eligible   for
consideration under provisions for Reserve members on  EAD.   Had  his  back
condition been determined to have been directly aggravated in  the  line  of
duty while performing inactive duty training or  active  duty,  his  service
and DVA medical records indicate the condition  would  have  been  rated  10
percent resulting  in  disability  discharge  with  severance  pay  but  not
entitlement to disability  retirement.   However,  his  headaches  were  not
unfitting and would not have been rated or compensated.

The BCMR Medical Consultant notes the military  disability  system  operates
under Title 10 whereby compensation is made for diseases or  injuries  which
rendered a member unfit for continued military  service  and  only  for  the
degree of impairment at the time of separation.  Whereas, the  DVA  operates
under  Title  38  and  compensates  for  any   service-connected   condition
regardless of whether it was unfitting for continued military service.

The BCMR Medical Consultant evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

He never had any back pain prior to entering the Air  Force.   While  it  is
true that after his discharge, he appeared to be  fine;  however,  he  began
having back pain about 2 weeks after the accident and  as  time  passed  his
pain became very severe.  His injuries are consistent with the car  accident
since he has a bulging disc on the opposite side of  where  the  car  struck
him.  No one can prove that he did not have pain after the accident,  as  he
was the only one experiencing the pain.  The  reference  to  being  seen  by
medical personnel prior to the accident refers to an incident  when  he  was
struck by the bomb doors of a B-52 and fell to the  ground.   He  was  fine,
but his crew chief made him go to the hospital and  have  it  examined.   He
did as he was told and it never  bothered  him  again.   Although  the  BCMR
Medical Consultant states that he requested to leave the Air Force,  it  was
not what he wanted to do.  To the contrary, he was intimidated by  his  shop
chief to the point that he wanted to get out with  an  honorable  discharge.
His condition could have been corrected  a  long  time  ago,  if  Air  Force
physicians would have been competent enough to find the problem and  perform
surgery.

With respect to his entering the Reserves, he  did  have  severe  back  pain
when going to the physical examination and  had  iced  his  back  for  weeks
prior and came highly medicated.  During many of the physical  events,  they
did see that he had a problem, but he was able to work around it.   However,
he was never able to run the required 1.5 miles while in the Reserve.

Applicant’s complete response is at Exhibit E.

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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.   We  took  notice  of  the  applicant's
complete submission in judging the merits of the  case;  however,  we  agree
with the opinion and recommendation  of  the  BCMR  Medical  Consultant  and
adopt his rationale as the basis for our conclusion that the  applicant  has
not been the victim of an error or injustice.  Therefore, in the absence  of
evidence to the contrary, we find no compelling basis to recommend  granting
the relief sought in this application.

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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.

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The following members of the Board considered  Docket  Number  BC-2005-01919
in Executive Session on 27 September 2006, under the provisions of  AFI  36-
2603:

                       Ms. Marilyn Thomas, Vice Chair
                       Mr. John E. B. Smith, Member
                       Ms. Barbara R. Murray, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 8 Jun 05, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memo, BCMR Medical Consultant, dated 19 Jul 06.
    Exhibit D.  Letter, SAF/MRBR, dated 21 Jul 06.
    Exhibit E.  Letter, Applicant, dated 16 Aug 06.



                                   MARILYN THOMAS
                                   Vice Chair