RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2006-02084
            INDEX NUMBER:  145.00
            COUNSEL:

            HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  14 JAN 2008

_________________________________________________________________

APPLICANT REQUESTS THAT:

His records be corrected  to  reflect  he  was  disability  retired  with  a
disability rating of 50 percent, which is commensurate with  the  rating  by
the Department of Veterans Affairs (DVA), rather than  medically  discharged
with severance.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He incurred the injury while on a period of active duty,  has  been  treated
in a number of ways by a number of medical providers to no avail  and  still
suffers from chronic  debilitating  pain.   His  record  contains  objective
findings that his injury, occurred, has not improved  and  has  resulted  in
his being permanently disabled at a level which should be  rated  under  the
Veterans  Administration  Schedule  for  Rating  Disabilities   (VASRD)   at
50 percent.

In support of his request,  the  applicant  submits  a  statement  from  his
attorney, a DVA Rating Decision, dated  24  January  2006,  a  copy  of  the
General Rating Formula for Diseases and Injuries of the Spine, AF Form  356,
Findings and Recommended  Disposition  of  USAF  Physical  Evaluation  Board
(PEB), AF Form 1180,  Action  on  Physical  Evaluation  Board  Findings  and
Recommended Disposition, PEB Rebuttal, letter from Spring Hill Primary  Care
Physicians, Secretary of the Air Force Personnel Council  Memorandum,  dated
6 June 2005, and excerpts from his medical records.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Air National Guard on 5 April 1981, served  as
Non-Destructive Inspection Supervisor and was progressively promoted to  the
grade of master  sergeant.   He  entered  active  duty  this  period  on  30
November  2003.   On  1 October  2004,  a  Medical  Evaluation  Board  (MEB)
referred the case to the Informal Physical Evaluation  Board  (IPEB),  which
on 20 January 2005, found the applicant unfit due to chronic neck  pain  and
concluded  that  his  medical  condition  prevented  him   from   reasonably
performing the duties of his office, grade, rank, or rating and  recommended
discharge with severance pay with a disability rating  of  10  percent.   He
appealed that decision to  the  Formal  Physical  Evaluation  Board  (FPEB),
which met on 6 April 2005, and recommended he be discharged  with  severance
pay with a disability  rating  of  20  percent.   The  FPEB’s  decision  was
appealed to the Secretary of the Air Force Personnel Council (SAFPC),  where
the case was reviewed on 6 June 2005,  and  determined  that  the  applicant
should be discharged with severance pay  with  a  disability  rating  of  20
percent.  On 19 July 2005, he was  discharged  with  severance  pay  with  a
disability rating of 20 percent.

_________________________________________________________________

AIR FORCE EVALUATIONS:

The BCMR Medical Consultant recommends denial and states no  change  in  the
record is warranted.  He  further  states  in  part,  the  military  service
disability systems,  operating  under  Title  10,  and  the  DVA  disability
system, operating under Title 38, are complementary systems not intended  to
be duplicative.  Operating under different laws with  a  different  purpose,
independent decisions/determinations made by the DoD under Title 10 and  the
DVA under Title 38 are not determinative or binding  on  decisions  made  by
the other.  The mere fact that the DVA may grant  certain  service-connected
compensation rating does not establish eligibility for similar  action  from
the Air Force.  By law, payment of DVA disability compensation and  military
disability pay is prohibited.  Approximately two  months  before  discharge,
the applicant had an MRI that demonstrated mild degenerative  disc  disease.
Mild degenerative disc disease would be considered a common  finding  in  an
active 45-year old and it could not be determined if this was  actually  the
source of his painful neck symptoms, considering that the MRI, EMG, and  NCV
one year earlier were all negative.  It is unlikely that this finding  would
be the result of one single, seemingly  innocuous  event,  rather  than  the
culmination  of  all  his  activities  over  a  lifetime  and  the   natural
progression of degenerative disc disease, including those both  on  and  off
duty.

The applicant’s  neck  pain  was  considered  as  one  entity  in  terms  of
functionality of  the  region.   Since  there  were  no  objective  findings
relating to the shoulder condition,  it  was  not  considered  independently
unfitting.  Rating each area separately  is  considered  pyramiding  and  is
specifically prohibited.  The totality of the applicant’s condition and  the
effects on the performance of his duties were the primary consideration.

The preponderance of the evidence of record shows that the applicant’s  neck
condition was not adjudicated using standard established  criteria  and  was
never presented to the MEB according to this standard.  While  there  is  no
evidence to support a higher rating at the time  of  separation,  there  was
also no evidence to explain the rating decision by the FPEB.  Based  on  the
dearth of objective findings available to the FPEB, it  would  be  extremely
difficult to assign a higher disability rating under these circumstances.

The BCMR Medical Consultant’s evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

On 11 July 2007, the applicant’s attorney requested a  two  week  extension,
which was granted.  (Exhibit E)

The applicant’s attorney states  he  will  not  submit  a  rebuttal  to  the
advisory opinion.  The applicant simply requested that the Board be  advised
he is currently rated at over 50 percent for these same  conditions  by  the
DVA.

The complete response is at Exhibit F.

_________________________________________________________________

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 error or injustice.  After a thorough review  of  the  evidence
of record  and  applicant’s  submission,  we  are  not  persuaded  that  the
applicant’s disability rating should be changed.   We  took  notice  of  the
applicant's complete submission in judging the merits of the case;  however,
we  agree  with  the  opinions  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.

_________________________________________________________________

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 this application  in Executive
Session on 23 August 2007, under the provisions of AFI 36-2603:

            Ms. Kathleen F. Graham, Panel Chair
            Ms. Karen A. Holloman, Member
            Mr. Wallace F. Beard Jr., Member


The following documentary evidence was considered for AFBCMR  Docket  Number
BC-2006-02084:

      Exhibit A.  DD Form 149, dated 28 Jun 06, w/atchs.
      Exhibit B.  Applicant's Master Personnel Records.
      Exhibit C.  Memo, BCMR Medical Consultant, dated 11 Jun 07.
      Exhibit D.  Letter, SAF/MRBR, dated 12 Jun 07.
      Exhibit E.  Letter, Applicant’s Attorney, dated 11 Jul 07.
      Exhibit F.  Letter, Applicant’s Attorney, dated 28 Aug 07.




               KATHLEEN F. GRAHAM
               Panel Chair