RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2006-01958
            INDEX CODE:  108.00, 110.00

      XXXXXXX    COUNSEL:  JOHN F. LEGRIS

            HEARING DESIRED: YES


MANDATORY CASE COMPLETION DATE:  1 JAN 2008


___________________________________________________________________

APPLICANT REQUESTS THAT:

Her disability separation, with  severance  pay  be  changed  to  a
disability retirement with a disability rating of  40  percent;  in
the alternative, be reinstated in the Temporary Disability  Retired
List (TDRL) with a 40 percent disability rating, with the rank of E-
5 and award of all back pay and benefits.

___________________________________________________________________

APPLICANT CONTENDS THAT:

The decision of the Formal Physical Evaluation Board (FPEB) and the
Air Force Personnel Council that  she  be  discharged  with  a  20%
disability rating were  arbitrary  and  capricious,  and  therefore
unjust.

She was originally seen by medical personnel for low back  pain  in
1992.  An MRI was done in Jul 92 and  revealed  a  L5-S1  Herniated
Disc with S1 impingement on the right.   Applicant  was  eventually
placed on the TDRL at the direction  of  the  Air  Force  Personnel
Council on 6  Nov  01.   Subsequently,  in  Aug 03,  applicant  was
reevaluated  and  separated  with  a  20%  disability  rating   and
severance pay.

In support of her appeal, applicant’s counsel provided a  statement
on the applicant’s behalf; Extracts from her master  personnel  and
Department of Veterans Affair medical records, and other supporting
documents.

___________________________________________________________________

STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 15 Aug 88.  She  was
progressively promoted to the rank of staff sergeant with a date of
rank of 1 Nov 96.

A review of the service medical records  shows  the  applicant  was
first seen with complaints of low back pain on 8 Jan 92,  when  she
presented to the Family Practice Clinic.  There was no acute  cause
for her pain but she reported lifting hay the weekend prior to  the
visit.  She was seen again on 29 Jan 92 for complaints of  pain  in
the right buttocks and thigh with pins and needle sensation in  the
right calf.  A limp was noted.  She was treated  as  an  acute  low
back  strain  with  muscle  relaxants   and   non-steroidal   anti-
inflammatory medication and sent to physical therapy.  An  MRI  was
completed on 1 Jul 92 and revealed an L5-S1 herniated disc with  S1
impingement on the right.  On 13 Jul 92, applicant was seen  by  an
orthopedic surgeon who recommended continuing conservative therapy.
 She reported gradual improvement with physical  therapy  over  the
next three months.

Applicant was discharged in Jul 95; however, in  May  97,  she  was
reinstated on active duty by the Air Force Board for Correction  of
Military Records (Docket  Number  BC-1995-02840)  and  was  granted
continuous active duty status for the time missed.

On 11 Jun 01, applicant met a Medical Evaluation Board (MEB)  which
referred the case to the Informal Physical Evaluation Board (IPEB).
 The original IPEB met on 11 Jul 01 and recommended discharge  with
severance  pay  with   a   disability   rating   of   20   percent.
On 15 Aug 01, the Formal Physical Evaluation Board (FPEB) concurred
with the decision of the  IPEB  to  discharge  the  applicant  with
severance pay with a disability rating of 20 percent.  The case was
appealed to the  Secretary  of  the  Air  Force  Personnel  Council
(SAFPC).  On 18 Sep 01, SAFPC did not concur with the  decision  of
the FPEB and directed the applicant be placed on the  TDRL  with  a
disability rating of 40 percent.  On 5 Nov 01, applicant was placed
on TDRL.

On 3 Mar 03, applicant was seen by an orthopedic surgeon  for  TDRL
reevaluation.  On 19 Mar 03, the IPEB  recommended  discharge  with
severance  pay,  with  a   disability   rating   of   20   percent.
On 11 Jun 03,  the  FPEB  concurred  with  the   IPEB’s   decision.
On 11 Aug 03, the SAFPC concurred with the FPEB’s decision.

On 1 Sep 03, applicant was removed from the TDRL and discharged  in
the grade of staff sergeant under the provisions  of  AFI  36-3212,
with entitlement to disability severance  pay.   She  was  credited
with 15 years and 17 days of service for basic pay.

___________________________________________________________________

AIR FORCE EVALUATION:

The  AFBCMR  Medical  Consultant  reviewed  this  application   and
recommended denial.  Based on a review of the  applicant’s  service
medical records, it would appear the PEBs  took  into  account  the
totality of the applicant’s condition to arrive  at  a  20  percent
rating analogized to the intervertebral  disc  syndrome  condition.
The  preponderance  of  evidence  of  the  record  shows  that  the
applicant’s  disability  rating  of   20   percent   was   properly
adjudicated.  There is no evidence to support a  higher  rating  at
the time of separation.  Applicant’s case was  properly  evaluated,
appropriately  rated  and   received   full   consideration   under
applicable directives.  Action and disposition  in  this  case  are
proper  and  equitable  reflecting  compliance   with   Air   Force
directives that implement the law.

BCMR Medical Consultant complete evaluation is at Exhibit C.

___________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant’s counsel state the medical consultant’s report does  not
effectively refute the contradictions set forth  in  the  counsel’s
brief.

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 an error or  an  injustice.   We  took
notice of the applicant's complete submission in judging the merits
of the case.  The applicant requests her disability  separation  be
changed to a disability retirement with  a  40  percent  disability
rating.  However, it appears based  on  the  preponderance  of  the
evidence applicant’s disability rating of 20 percent  was  properly
adjudicated and we found no evidence which would lead us to believe
that her separation was in error or contrary to the  governing  Air
Force instructions.  The  Board  noted  the  Disability  Evaluation
System (DES) was established to maintain a fit and  vital  fighting
force, and can by law, only offer compensation  for  those  service
incurred diseases or injuries which specifically rendered a  member
unfit for continued active service, were the cause for  termination
of their career, and then only for the degree of impairment present
at the time of separation.  Conversely, the Department of  Veterans
Affairs  (DVA)  operates  under  a  separate  set   of   laws   and
specifically addresses long term medical care, social  support  and
educational assistance.  The DVA is chartered to offer compensation
and care to all eligible veterans for any service-connected disease
or injury without regard to whether it was unfitting for  continued
military service.  Thus the two systems represent  a  continuum  of
medical care and disability compensation that starts with entry  on
to active duty and extends  for  the  life  of  the  veteran.   The
applicant’s case has undergone an exhaustive  review  by  the  BCMR
Medical Consultant and we  did  not  find  the  evidence  provided,
sufficient to overcome his assessment of the case.   Therefore,  we
agree with his recommendation and adopt his rationale expressed  as
the basis for our decision that the applicant has failed to sustain
her burden that she has suffered either an error or  an  injustice.
In the absence of persuasive evidence to the contrary, we  find  no
compelling basis to recommend granting the relief  sought  in  this
application.

4.  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-2006-01958 in Executive  Session  on  24  May  2007,  under  the
provisions of AFI 36-2603:

      Ms. B. J. White-Olson, Panel Chair
      Ms. Glenda H. Scheiner, Member
      Mr. Mark J. Novitski, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 23 Jun 06, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, BCMR Medical Consultant, dated 10 Apr 07.
    Exhibit D.  Letter, SAF/MRBR, dated 11 Apr 07.
    Exhibit E.  Letter, Applicant’s Counsel, dated 10 May 07.




                                   B. J. WHITE-OLSON
                                   Panel Chair