RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2006-00262
            INDEX CODE:  128.00, 110.00

      XXXXXXX    COUNSEL:  NONE

            HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  29 July 2007

_________________________________________________________________

APPLICANT REQUESTS THAT:

His  type  of  separation  be  changed  to  reflect   permanent   disability
retirement, and his separation and enlistment codes be changed.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was seen in the emergency room for numbness and weakness in his left  arm
and hand.  The emergency physician did not order an MRI or refer him  for  a
Medical Evaluation Board (MEB).   An  MEB  should  have  been  ordered  upon
evaluation of his condition prior to his separation from  active  duty.   He
is confident that this MEB would have  uncovered  the  true  nature  of  his
injury.

In support of the appeal, applicant submits a copy of his  DD  Form  214,  a
copy his identification cards, and a copy his Veteran Affairs documents.

Applicant's complete submission is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 28 August  1992.   On  25
January 2001, he was discharged at the expiration of his obligated  term  of
service.  He served 8 years, 4 months and 25 days on active duty.

The relevant facts pertaining to  this  application  are  contained  in  the
letter prepared by  the  Air  Force  office  of  primary  responsibility  at
Exhibit C.

_________________________________________________________________



AIR FORCE EVALUATION:

The BCMR Medical Consultant is of the opinion that no change in the  records
is warranted.  By law, payment of DVA disability compensation  and  military
disability pay for the same medical condition or disability  is  prohibited.
During the months  leading  up  to  the  applicant’s  scheduled  separation,
including the final medical encounter on  20  January  2001,  there  was  no
evidence of a  disability  that  would  cause  the  applicant  to  be  unfit
warranting a Medical Evaluation Board.   Evidence  in  the  service  medical
records showed no indication of any obvious  unfitting  disability  and  the
physicians assessing the applicant  did  not  impose  any  significant  duty
restrictions.  Therefore, no Medical Evaluation Board was indicated.

Although the applicant’s condition progressed shortly  after  his  discharge
from  the  Air  Force,  the  BCMR  Medical  Consultant   opines   that   the
preponderance of the evidence of the record shows that the applicant’s  neck
condition was not interfering with the performance  of  his  duties  in  the
period of time leading up to his scheduled  voluntary  separation  including
at the time of his last medical encounter on 20 January  2001,  hence  there
was no indication to conduct  a  Medical  Evaluation  Board  at  that  time.
Therefore, the fact that his service connected  medical  condition  worsened
following separation is  not  a  basis  to  provide  retroactive  disability
benefits.  Action and disposition in this  case  are  proper  and  equitable
reflecting compliance with Air Force directives that implement the law.

A complete copy of the evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant responded to  the  Medical  Consultant’s  evaluation  stating  his
letter and its attachments do not represent all of  the  evidence  pertinent
to this case, but it does establish some key points and a timeline.

His complete response, with attachments, is at Exhibit E.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

Persuant to the Board’s request, the BCMR  Medical  Consultant  provided  an
additional evaluation addressing  the  following  questions  raised  by  the
Board:

      Would there have been an MEB based on  the  results  of  the  February
MRI?  The presence of a large herniated disk (sic) on an  MRI  does  not  it
itself warrant MEB referral.  Further, a decision to refer to an  MEB  would
probably have been delayed pending response to therapy, and then only  after
it had been determined his condition  was  permanent  and  unfitting,  which
would not  have  been  known  until  after  surgery  and  convalescence  was
completed.

      Should an MRI have been completed  prior  to  his  separation?   There
were insufficient finds to perform an emergent MRI at that  time  since  his
symptoms had always dissipated within a day and there was reason to  believe
that conservative measures would  resolve  the  problem  after  his  January
emergency room visit.

      Would the February MRI results have  been  sufficient  to  warrant  an
MEB?  Not necessarily since referral into the Disability  Evaluation  System
(DES) would not have been warranted until it could be  determined  that  his
symptoms were unfitting and permanent.

      Would an MEB been initiated if an MRI  were  completed  prior  to  his
discharge?  If  an  MRI  were  ordered  emergently  in  January  2001  which
demonstrated a  large  disk  (sic)  encroaching  on  the  spinal  cord  that
necessitated  urgent  neurosurgery  to  preserve   peripheral   neurological
function,  the  applicant  would  have  been  placed  on  medical  hold   to
convalesce and, depending on his improvement at that  point,  an  MEB  might
have been initiated.

The BCMR Medical  consultant  raised  another  question:   What  might  have
happended  if  applicant  had  remained  on  active  duty  and  had  surgery
performed on 15 May 2001?  Although  this  is  difficult  to  determine,  it
appears that he was capable of performing some  duties  less  than  a  month
after surgery.  In view of this, if an MEB would have been completed, it  is
likely an Informal Physical Evaluation Board (IPEB) would  have  recommended
his discharge, with severance pay, rated at 10 percent.

A complete copy of the evaluation is at Exhibit F.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A complete copy of the additional evaluation was forwarded to the  applicant
on 21 March 2007 for review and comment, within 30  days.   However,  as  of
this date, no response has been received by this office.

_________________________________________________________________

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.  Sufficient relevant evidence  has  been  presented  to  demonstrate  the
existence of error or injustice to warrant the  applicant’s  separation  for
physical disability with entitlement to severance pay.  Five days  prior  to
the applicant’s scheduled separation to enter  a  Reserve  Officer  Training
Corps (ROTC) Scholarship program, he was treated at the David Grant  Medical
Center Emergency Department for weakness in  his  left  arm  for  the  three
previous hours, associated with numbness of the finger tips.   Although  his
symptoms dissipated within 24 hours, an MRI of his cervical spine  completed
subsequent to his separation, revealed the presence  of  a  large  herniated
disc at the C3-4 level and a small herniated disc at the  C6-7  level.   His
condition further deteriorated, ultimately requiring  neurological  surgery.
The BCMR Medical Consultant has thoroughly reviewed the evidence  of  record
and opines that had the applicant remained on active duty  and  had  surgery
performed, he would have eventually been processed through the  DES  due  to
some symptoms of numbness and limping, found unfit  for  continued  military
service based on slight limitation of motion  of  the  spine,  rated  at  10
percent, and discharged with severance pay.  We  agree.   However,  we  find
insufficient evidence to establish that at the time of his  separation,  his
condition should have been rated higher than 10 percent  and  warranted  his
permanent disability retirement.  In this respect, we note the military  DES
is established to maintain a fit and vital  force  and  can  compensate  for
unfitting conditions which render a member unable to perform their  military
duties, and then only to the degree of severity at the time  of  separation.
Although the Air Force is required to rate disabilities in  accordance  with
the DVA Schedule for Rating Disabilities, the DVA operates under  a  totally
separate system with a different statutory basis.  The  DVA  rates  for  any
and all service-connected conditions, to  the  degree  they  interfere  with
future employability, without consideration of fitness.   Whereas,  the  Air
Force rates a member's disability based on the degree  of  severity  at  the
time of separation.  Therefore, in view of the above, and in the absence  of
evidence that his condition should have been rated higher  at  the  time  of
his separation,  we  recommend  his  records  be  corrected  to  the  extent
indicated below.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

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

      a.    On 24 January 2001, he was found unfit to perform the duties  of
his office, rank,  grade,  or  rating  by  reason  of  physical  disability,
incurred while he was entitled to receive basic pay; that the  diagnosis  in
his case was slight limitation of motion of the spine, DVA  Diagnostic  Code
5237; that the compensable percentage was 10 percent;  that  the  degree  of
impairment was permanent; that the disability was  not  due  to  intentional
misconduct or willful neglect; that the disability was not  incurred  during
a period of unauthorized absence; and that the disability was  not  received
in the line of duty as a direct result of armed conflict  or  caused  by  an
instrumentality of war.

      b.    On 25 January 2001, he was not honorably  discharged  under  the
provisions of AFI 36-3208, Officer Training Program, but on  that  date,  he
was honorably discharged under  the  provisions  of  AFI  36-3212,  Physical
Disability, with entitlement to severance pay, rated at 10 percent.

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number  BC-2006-
00262 in Executive Session on  8  March  2007  and  1 May  2007,  under  the
provisions of AFI 36-2603:

            Mr. Thomas S. Markiewicz, Chair
            Ms. Teri G. Spoutz, Member
            Ms. Renee M. Collier, Member

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

   Exhibit A.  DD Form 149, dated 13 Dec 05, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, BCMR Medical Consultant, dated 11 Jan 07.
   Exhibit D.  Letter, SAF/MRBR, dated 18 Jan 07.
   Exhibit E.  Letter, Applicant, dated 17 Feb 07, w/atchs.
   Exhibit F.  Letter, BCMR Medical Consultant, dated 19 Mar 07.
   Exhibit G.  Letter, AFBCMR, dated 21 Mar 07.




                                   THOMAS S. MARKIEWICZ
                                   Chair



AFBCMR BC-2006-00262




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, XXXXXXX, be corrected to show that:

            a.   On 24 January 2001, he was found unfit to perform the
duties of his office, rank, grade, or rating by reason of physical
disability, incurred while he was entitled to receive basic pay; that the
diagnosis in his case was slight limitation of motion of the spine, DVA
Diagnostic Code 5237; that the compensable percentage was 10 percent; that
the degree of impairment was permanent; that the disability was not due to
intentional misconduct or willful neglect; that the disability was not
incurred during a period of unauthorized absence; and that the disability
was not received in the line of duty as a direct result of armed conflict
or caused by an instrumentality of war.

            b.   On 25 January 2001, he was not honorably discharged under
the provisions of AFI 36-3208, Officer Training Program, but on that date,
he was honorably discharged under the provisions of AFI 36-3212, Physical
Disability, with entitlement to severance pay, rated at 10 percent








            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency