RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER: BC-2005-02496
            INDEX CODE:  110.02
            COUNSEL:  RAY M SHEPARD
            HEARING DESIRED:  YES

MANDATORY CASE COMPLETION DATE:  Feb 13, 2007

_________________________________________________________________

APPLICANT REQUESTS THAT:

His disability rating of  20  percent  awarded  to  him  by  the  Air  Force
Physical Evaluation Board  be  increased  to  60  percent  and  include  the
injuries to his neck and left knee.   He  further  requests  entitlement  to
disability retirement benefits.
_________________________________________________________________

APPLICANT CONTENDS THAT:

He should have been awarded disability for injuries sustained to  his  neck,
knee, and right elbow.

In  support  of  his  request,  the  applicant  provided  medical  treatment
documentation  pertaining  to  his  injuries  and  sworn   statements   from
witnesses.

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

STATEMENT OF FACTS:

The applicant was a MSgt (E-7) assigned to the West  Virginia  Air  National
Guard.

The applicant was on extended active duty on  12  Jul  03  and  was  injured
while flying as a passenger on a  C-130  military  aircraft  returning  from
Puerto Rico  to  it’s  home  station,  Martinsburg,  WVA.   Medical  records
indicate  the  aircraft  experienced  turbulence  severe  enough  to   cause
passengers to be ejected from their seats.  The applicant was  ejected  into
the air and experienced neck and back pain as a result of the turbulence.

Sworn statements indicate the  applicant  and  others  had  injuries  severe
enough to require the aircraft to make an emergency landing at Norfolk,  VA.
 The applicant and others  were  then  taken  to  a  civilian  hospital  and
subsequently to Portsmouth Naval Medical Center.



Additional medical facts pertaining to this  application  are  contained  in
the BCMR Medical Consultant’s advisory at Exhibit C.
_________________________________________________________________

AIR FORCE EVALUATION:

The BCMR Medical Consultant recommends the applicant’s  records  be  changed
to reflect permanent  disability  retirement  with  a  combined  compensable
rating of  40  percent.   Such  a  change  will  result  in  entitlement  to
disability  retirement  (with  immediate  benefits)  and  will  replace  the
applicant’s  entitlement  to  a  Reserve  retirement.   Evidence  of  record
supports a 20 percent rating for chronic cervical spine strain,  20  percent
for chronic lumbosacral spine strain with coccygeal  pain,  and  10  percent
for left knee pain.

The AFBCMR Medical Consultant’s complete evaluation, with attachments is  at
Exhibit C.
_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant and  counsel  concur  with  the  recommendation  of  the  BCMR
Medical  Consultant  to  increase  the  applicant’s   permanent   disability
percentage; however, they were  concerned  about  a  possible  typographical
error with respect to the total level of disability reflected.  The  Medical
Advisor recommended 40 percent while the applicant and counsel  believe  the
disability percentage should be 50 percent (20 percent plus 20 percent  plus
10 percent).  The applicant and counsel’s complete response  is  at  Exhibit
D.
_________________________________________________________________

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  error  or  injustice  to  warrant  relief.    After   careful
consideration of the applicant’s  request  and  the  available  evidence  of
record, we concur with the recommendation of  the  BCMR  Medical  Consultant
and adopt his rationale as the basis for our conclusion that  the  applicant
has been the victim of an error or injustice. We note the concern  expressed
by the applicant and counsel that the recommended disability  percentage  is
in error.  However, a review of Title 38, U.S.C. 1155,  paragraph  4.25  and
Table 1 reflects that the percentage is calculated correctly. Based  on  the
Board’s recommendation, AFPC/DPPRT contacted the applicant and  advised  him
of the Survivor Benefit Plan (SBP) and options.  The  applicant  provided  a
signed statement electing spouse-only coverage based on  full  retired  pay.
The applicant’s statement is at Exhibit  D.   Therefore,  we  recommend  the
applicant’s records be corrected as indicated below.
_________________________________________________________________

THE BOARD DETERMINES THAT:

The pertinent military records of the Department of the Air  Force  relating
to XXXXXXXX, be corrected to show that:

     a. On 12 November 2004, competent authority determined that the  rating
for his unfitting conditions pertaining to  chronic  cervical  spine  strain
rated 20 percent (VASRD Code 5237), chronic lumbosacral  spine  strain  with
coccygeal pain rated 20 percent (VASRD Code 5237), and left knee pain  rated
10 percent (VASRD  Code  5259)  for  a  combined  disability  rating  of  40
percent, rather than 20 percent.

         b. On 23 February 2005,  his  name  was  placed  on  the  Permanent
Disability Retired List, with a combined compensable rating of  40  percent,
rather than the Retired Reserve List.

         c. On 23 February 2005, he elected spouse-only coverage  under  the
Survivor Benefit Plan (SBP) based on full retired pay.
_________________________________________________________________

The following members of the Board considered  Docket  Number  BC-2005-02496
in Executive Session on 9 January 2007, under  the  provisions  of  AFI  36-
2603:

            Ms. Kathleen F. Graham, Panel Chair
            Ms. Mary C. Puckett, Member
            Mr. Patrick C. Daugherty, Member

The following documentary evidence pertaining to Docket Number BC-2005-
02496 was considered:

      Exhibit A.  DD Form 149, dated 3 Apr 05, w/Atchs.
            Exhibit B.  Applicant's Master Personnel Records.
            Exhibit C.  Letter, AFBCMR Medical Consultant, dated 3
Nov 06.
       Exhibit D.  Applicant’s Rebuttal, 12 Dec 06.
            Exhibit E.  Letter, SAF/MRBR, dated 16 Nov 06.



                                   KATHLEEN F. GRAHAM
                                   Panel Chair
      AFBCMR BC-2005-02496






      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
      XXXXXXX, be corrected to show that:


                   a.   On 12 November 2004, competent authority determined
      that the rating for his unfitting conditions pertaining to chronic
      cervical spine strain rated 20 percent (VASRD
      Code 5237), chronic lumbosacral spine strain with coccygeal pain rated
      20 percent (VASRD Code 5237), and left knee pain rated 10 percent
      (VASRD Code 5259) for a combined disability rating of 40 percent,
      rather than 20 percent.

                   b.  On 23 Feb February 2005, his name was placed  on  the
      Permanent Disability Retired List, with a combined compensable  rating
      of 40 percent, rather than the Retired Reserve List.


            c. On 23 February 2005, he elected  spouse-only  coverage  under
               the Survivor Benefit
            Plan (SBP) based on full retired pay.




                                       JOE G. LINEBERGER

       Director

       Air Force Review Boards Agency