SECOND ADDENDUM TO
                            RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2000-00132
            INDEX CODE:  108.01, 110.02
                         122.01
            COUNSEL:  Mr. Michael J. Calabro
            HEARING DESIRED:  YES

_________________________________________________________________

REQUESTED ACTION:

The findings of the January 2003 Formal Physical Evaluation Board (FPEB)  be
reconsidered based on a June 30, 2006 separation physical examination.

_________________________________________________________________

RESUME OF CASE:

In January 1998, applicant retired from the  Air  Force  Reserves  after  20
years, 8 months, and 11 days of satisfactory Federal service.  On 6 Feb  01,
the Board directed his records be corrected to reflect injuries received  in
a vehicular accident be found In-the Line of Duty (LOD);  a  review  of  his
medical records be conducted to determine if his condition,  as  of  25  Jan
98, warranted Medical Evaluation Board (MEB)  Processing;  and,  if  MEB  is
determined  appropriate,  invitational  travel  orders  be  issued  for  the
purpose of undergoing physical examination and  review  by  the  MEB  and  a
Physical Evaluation Board (PEB).  An MEB was conducted  on  5  Sep  02,  and
referred his case to a PEB.  An Informal PEB was conducted  on  15  Oct  02,
and found the degree of his condition (chronic low back pain)  at  the  time
in question, was unfitting  and  recommended  that  he  be  discharged  with
severance pay with a disability rating of 10 percent.   Applicant  disagreed
with the findings of the IPEB.  On 9 Jan  03,  a  Formal  PEB  convened  and
found that the testimony and medical evidence  supported  the  findings  and
recommendation of the IPEB.  The applicant did not agree with  the  findings
and recommendation of the FPEB.  On 14 Mar 03,  The  Secretary  of  the  Air
Force, Personnel Council (SAF/PC) reviewed the applicant's case  and  opined
that the degree of severity of applicant's condition  at  the  time  of  his
separation supported the findings of the FPEB of separation  with  severance
pay with a 10 percent disability rating.  On 7 Apr 03, applicant  signed  an
election statement  electing  discharge  with  severance  pay,  rather  than
transfer to the Inactive Status List Reserve Section.

The case was returned to the AFBCMR for final disposition.   Counsel  argued
that the USAFR did not properly correct the applicant's  medical  record  in
spite of the applicant's attempts to stimulate action and the applicant  had
no  choice  but  to  file  suit  in  Federal  Court.   That  litigation  was
temporarily discontinued to allow for the  PEB  process.   Counsel  contends
that instead of properly correcting his military record to have  it  appear,
as it should have, the USAFR refused to correct  his  record  and  give  the
applicant  a  physical  examination  and  the  PEB  was  conducted  with  an
erroneous record.  Counsel requested  the  applicant's  records  be  further
corrected to show continuous active service between  January  1998  and  the
disposition of his AFBCMR case; or, that he be constructively placed on  the
Temporary Disability Retired List and provided a final disability rating  of
30 percent or greater.

On  21  Jan  04,  the  Board  considered   the   case,   agreed   with   the
recommendations of the Air Force and directed his records  be  corrected  to
reflect his name was not placed on the Reserve retired list on  25  Jan  98,
but that  he  was  discharged  by  reason  of  physical  disability  with  a
compensable percentage of 10%.

For an accounting of the facts surrounding  the  previous  Board  decisions,
see the Record of Proceedings and Addendum to  the  Record  of  Proceedings,
with Exhibits is at Exhibit M.

On 19 Sep 06, the United States Court of Federal Claims  (USCFC)  granted  a
stay of proceedings for a final decision as to whether the  results  of  the
30 Jun 06 medical examination (Exhibit N) has changed the  determination  of
the applicant's disability rating.  See Exhibit O.

_________________________________________________________________

AIR FORCE EVALUATION:

The  BCMR  Medical  Consultant  recommends  no  change  in  the  applicant's
records.  The Medical Consultant states the  medical  examination  performed
eight years after retirement documented a history of chronic low  back  pain
since May 1993.  The examination reflected subjective  report  of  pain  and
activity level approximately the same as previous examinations.  Similar  to
previous examinations, objective findings on physical examination showed  no
muscle  weakness,  no  loss  of  reflexes  and  no  radicular   signs   with
examination maneuvers.  Range  of  motion  was  slightly  worse  in  flexion
compared to  previous  examinations.   Evidence  of  the  examination  shows
relative  stability  of  the  chronic  back  condition  over  time  and   is
consistent  with  examinations  while  in  military  service  and  with   an
orthopedic examination conducted five months following  retirement.   Taking
into account the gradual worsening since 1998, the evidence  of  the  recent
examination supports  no  more  than  a  20  percent  rating.   Taking  into
consideration  the  natural  progression  over   the   eight   years   since
retirement, the 10 percent rating adjudicated by the  PEB  is  supported  by
the evidence of record including the recent examination.

The  objective  physical  examination   findings   of   the   shoulder   and
elbow/cubital tunnel documented on 30 Jun 06 combined with the  evidence  of
the medical  records  contemporaneous  with  his  military  service  do  not
support a conclusion that  these  conditions  were  unfitting  for  military
service and warranted disability compensation.

The Medical Consultant's complete evaluation is at Exhibit P.

_________________________________________________________________

COUNSEL'S REVIEW OF AIR FORCE EVALUATION:

Counsel requests the AFBCMR recognize the errors by the Air  Force,  decline
to render a  further  finding  due  to  lack  of  jurisdiction,  return  the
military  record  file  for  proper  correction  and  a  complete   physical
examination by the Air Force, and report its actions to the USCFC.   Counsel
states the Air Force has conceded that it discharged the  applicant  without
giving him the  physical  examination  required  by  regulations  which  was
omitted from his separation in January  1998  and  his  physical  disability
processing in 2002.  Despite representations of a  proper  examination,  the
applicant was not administered a full  and  complete  physical  examination.
The medical personnel charged with conducting the physical were not given  a
complete and accurate military and medical record to review  in  conjunction
with the examination.  The examination process was fatally flawed.  The  Air
Force finally agreed  in  June  2006,  to  give  the  applicant  the  proper
separation  physical,  but  only  one  "to  resolve  a  lawsuit."   In   his
communication during the physical, the medical examiner stated the exam  was
only for separation purposes.  The medical examiner  reported  his  findings
on a different form than the one is used for  separation  physicals  by  the
USAF and was apparently given instructions to simply transfer the  deficient
findings to  the  proper  form.   The  medical  examination  report  remains
defective.   Air  Force  regulations  prescribe  the  nature  of   mandatory
examinations and the method for its report.   Neither  of  the  requirements
has yet been met.  Regulations require medical  examinations  in  disability
cases to be reviewed by  medical  boards  through  its  physical  disability
evaluation system.  He was not provided notice that the Air Force would  not
be following its own  regulations,  but  would  be  submitting  the  medical
examination to the AFBCMR.

The AFBCMR lacks  jurisdiction  to  reconsider  its  decision  on  the  last
application.  The AFBCMR only retains jurisdiction for  reconsideration  for
one year from the date of its decision.  The Air Force is precluded  by  its
own regulations  from  initiating  a  request  for  reconsideration  to  the
AFBCMR.  "The Board may reconsider an application if the  applicant  submits
newly discovered evidence..."  It appeared from the government's  discussion
in its prior filing with the USCFC that the Air Force's  processing  of  the
medical examination was proceeding properly and there was no  hint  that  it
had been filed with the AFBCMR.

Counsel states the Medical Consultant  has  been  placed  in  the  difficult
position of being tasked to evaluate the applicant's physical  condition  in
January  1998  with  an  erroneous  medical  record  and   flawed   physical
examination.  The content  of  the  report  demonstrates  that  a  full  and
complete separation examination was not conducted.   The  doctor  was  given
instructions by the Government's counsel  on  how  he  was  to  conduct  the
examination.  Without a full and complete physical in 1998 it is  impossible
to accurately determine his disability percentage at  the  time.   Applicant
contends that his retirement in 1998 is void, because he cannot  be  retired
until completion of a proper, full, and complete physical  examination.   In
the first paragraph of the  'Facts'  section  of  the  Medical  Consultant's
memorandum,  he  recites  the  erroneous  conclusion   of   a   formal   LOD
determination in 1996 that his "condition was not incurred in  the  line  of
duty."  That is not only an  erroneous  entry  which  still  exists  in  his
military record, despite the AFBCMR's order to correct  it,  but  it's  mere
presence is prejudicial to anyone reviewing  the  record  and  finding  that
entry written there.  The Medical Consultant is  not  qualified  to  make  a
legal review  of  the  facts.   Further  this  factual  restatement  ignores
applicant's argument  to  the  AFBCMR  regarding  the  conduct  of  his  LOD
investigation.  The  1998  coerced  retirement  is  also  void  because  the
applicant's prior demand  in  accordance  with  Air  Force  regulations  and
Federal Law for a full and fair disability hearing was not conducted by  the
Air Force.  He has consistently argued these  positions  from  the  time  he
discovered the Air Force's actions throughout  the  retirement  process  and
AFBCMR proceedings.  It appears the AFBCMR has  consistently  ignored  those
arguments and failed to enforce its own decision  and  allowed  illegal  and
prejudicial documentation to remain in applicant's record.  Page  2  of  the
'Facts' paragraph incorrectly states applicant asserted aircraft  vibrations
caused  his  ulnar  tunnel  syndrome.   Applicant  actually  stated  to  the
Vandenberg  AFB  physician  that  a  physician  at  Loma  Linda   University
diagnosed  military  flying  duties  as  the  cause  of  his  bilateral  arm
disability.  The last sentence of the 'Facts'  paragraph  implies  the  2002
Informal PEB and the 2003 FPEB considered a  May  1998  civilian  orthopedic
consultation.  That is not  true  and  misleading  as  documented  by  those
boards  own  narratives.   The  Consultant  states  the  May  1998  civilian
orthopedic consultation listed no radiculopathy when in fact it does.   This
error indicated he either did not have a correct medical file  or  that  the
Air Force still has not corrected the faulty medical record as  required  by
the AFBCMR's decision.

The Medical Consultant failed to comment on the  physical  being  incomplete
and not proper for separation  or  retirement.   He  did  not  mention  that
orthopedic and neurological consultations are absent,  or  that  there  were
not current MRI and EMG/NCS, now, in 1998  or  in  2003,  to  determine  the
extent and progression of any neurological damage.  He also failed  to  note
that the examining doctor did not  state  that  the  MRI  and  EMG  data  he
reviewed and commented on in his  physical  was  from  1993  and  1994.   He
states there is no neural encroachment when in fact there is.   The  Medical
Consultant  implies  throughout  his  discussion  and  specifically   claims
physical examination objectivity on page 3.   While  in  truth,  the  entire
physical  examination  was   subjective.    He   characterizes   applicant's
responses as objective when they favor  the  government  and  as  subjective
when they do not.  That differentiation gives  the  impression  of  bias  by
both the examining physician and the Medical Consultant.   Most  significant
are the examining and consulting physician's  attitudes  and  evaluation  of
applicant's cubital  tunnel  syndrome.   With  no  objective  studies,  MRI,
EMG/NCS, with no  consideration  for  the  duties  involved  as  a  military
officer, both doctors conclude this disorder does not make  applicant  unfit
for service.  That is precisely the attitude that allowed  him  to  continue
in his duties, aggravated his back condition, and threw  him  out  with  the
dishwater.

Counsel's complete response is at Exhibit Q.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  After a review of the evidence of  record,  previous  considerations  of
this case, and the additional evidence provided, it is our opinion that  the
previous decision regarding this matter should not  be  disturbed.   At  the
direction of the AFBCMR, DES officials were tasked to determine  whether  or
not the applicant's  physical  condition  as  it  existed  in  January  1998
warranted processing through the DES.  As a result,  the  determination  was
made that his condition as it existed at the  time  rendered  him  unfit  to
perform the duties of his office, rank and grade and that the degree of  his
impairment warranted a compensable percentage  of  10%  in  accordance  with
Department  of  Veterans  Affairs  diagnostic  guidelines.    The   military
disability  evaluation  system  can  by  law  under  Title  10,  only  offer
compensation for service incurred or aggravated injuries which  specifically
rendered  a  member  unfit  for  continued  service,  were  the  cause   for
termination of their career, and only for the degree of  impairment  present
at the time of separation and not based  on  subsequent  possibilities  even
though the condition may become better or worse.   Noting  this  and  taking
into consideration the earlier determination of  DES  officials  along  with
the additional  physical  examination  data  provided,  we  agree  with  the
opinion and recommendation of the BCMR Medical  Consultant.   Therefore,  it
is our determination that substantive evidence has not been presented  which
would justify a compensable rating higher than the assigned rating  of  10%.
Accordingly, in absence of evidence to the contrary we find  no  basis  upon
which to recommend further corrective action in this case.

2.  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 issue  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-2000-
00132 in Executive Session on 25 Apr 07, under the  provisions  of  AFI  36-
2603:

      Ms. Charlene M. Bradley, Panel Chair
      Ms. Karen A. Holloman, Member
      Mr. Wallace F. Beard, Jr., Member

The following documentary evidence was considered:

    Exhibit M.  Addendum to the Record of Proceedings, dated
                        21 Jan 04, w/Exhibits
    Exhibit N.  USCFC Order, dated 19 Sep 06, w/atchs
    Exhibit O.  Physical Examination, dated 30 Jun 06.
    Exhibit P.  Memorandum, BCMR Medical Consultant, dated  14  Dec
06.
    Exhibit Q.  Letter, AFBCMR, dated 14 Dec 06.
    Exhibit R.  Letter, Counsel, dated 9 Jan 07.
    Exhibit S.  Letter, BCMR Legal Advisor, dated 28 Feb 07.
    Exhibit T.  Letter, Counsel, dated 2 Mar 07, w/atch.




                                   CHARLENE M. BRADLEY
                                   Panel Chair