RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2007-00552
            INDEX CODE:  108.02

            COUNSEL:  DAVID P. SHELDON

            HEARING DESIRED: NOT INDICATED

_________________________________________________________________

APPLICANT REQUESTS THAT:

His records be corrected to show he was medically retired with  a  100
percent disability rating  rather  than  a  disability  rating  of  40
percent.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was retired on 27 February 2004 by  reason  of  permanent  physical
disability after having served over 20 years on active duty.   Due  to
complex debilitating medical problems, he could no longer perform  his
assigned duties and was referred to a physical evaluation board (PEB).
  Despite  overwhelming  evidence  that  his  condition   required   a
disability rating of  100  percent,  he  was  arbitrarily  assigned  a
disability   rating   of   40   percent,   while   several   of    his
ailments/disabilities went unaddressed.

In support of his appeal, the counsel for the applicant has provided a
statement and several attachments.

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

_________________________________________________________________

STATEMENT OF FACTS:

Applicant entered the Regular Air Force on 17 January  1984.   He  was
progressively promoted to the grade of  lieutenant  colonel  effective
and with a date of rank (DOR) of 1 February 2000.  On 9 July 2003,  he
met an Informal PEB (IPEB) and subsequently a Formal PEB (FPEB) on  11
September  2003  accompanied  by  counsel.   Both  Boards  recommended
permanent  retirement  with  a  disability  rating  of   40   percent.
Applicant submitted a rebuttal to the FPEB’s findings to the Secretary
of the  Air  Force  Personnel  Council  (SECAF/PC)  arguing  that  his
disability rating should be 100 percent.  SAF/PC considered his appeal
and, in a memorandum dated 17 December 2003, concurred with and upheld
the recommendation of  the  earlier  Boards  that  he  be  permanently
retired with a disability rating of 40 percent.  On  7  January  2004,
SAF/PC directed his date of separation  (DOS)  be  established  as  27
February  2004.   He  was  retired  for  physical  disability  with  a
disability rating of 40 percent  for  recurring  episodes  of  chronic
fatigue and associated myofascial pain  condition,  after  serving  on
active duty for 20 years, 1 month, and 11 days.

_________________________________________________________________

AIR FORCE EVALUATION:

The AFBCMR Medical Consultant opines that the  40  percent  disability
rating set by the Air Force was too low.  He contends  the  applicants
symptoms  related  to  his  disability  more  closely  approximates  a
disability rating of 60 percent at the time of  his  retirement.   The
fact he was subsequently rated 100 percent disabled by the  Department
of Veteran’s Affairs (DVA), is irrelevant as the Air Force  Disability
System  strictly  evaluates  member’s  disabilities  at  the  time  of
discharge.   Therefore,  his  hepatitis  and  hypertension  were   not
considered disabling at the time of his retirement.

The remaining pertinent medical facts are contained in the evaluation
prepared by the BCMR Medical Consultant at Exhibit B.

AFPC/DPPD recommends  denial  regarding  his  request  his  record  be
corrected to show an Air  Force  disability  rating  of  100  percent.
However, DPPD states the IPEB reviewed the BCMR  Medical  Consultant’s
findings and recommendations and opines that the  member  did  not  in
fact meet the clinical criteria for chronic  fatigue  syndrome.   DPPD
states  his  symptoms  should  have   been   coded   using   Veteran’s
Administration Schedule for Rating  Disabilities  (VASRD)  code  5025,
fibromyalgia.  DPPD therefore recommends his record  be  corrected  to
show he was retired by reason of physical disability for  fibromyalgia
with a permanent disability rating of 60 percent.

AFPC/DPPD’s complete evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel for the applicant states while the BCMR  Medical  Consultant’s
advisory  does  conclude  his  client  should  be  awarded   permanent
retirement with a  disability  rating  of  60  percent,  it  fails  to
acknowledge the true nature of his condition and therefore falls short
of the requested 100% disability rating.  Counsel notes a “math error”
in the advisory regarding the applicant’s actual time spent on the job
prior to his disability retirement that  he  contends,  if  corrected,
would lead the Board to conclude the applicant should have received  a
100% disability rating from the Air Force.

Counsel’s complete response, with attachments, 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 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.  In this respect,  the  BCMR  Medical
Consultant has recommended the applicant be placed  on  the  TDRL  and
opines that the severity of his symptoms at the time of his separation
more closely approximates a rating  of  60  percent,  rather  than  40
percent.   The  IPEB,  upon  considering  the   Medical   Consultant’s
recommendation, noted, with the advantage of a three-year gap  between
his  separation  and  today,  that  the  applicant’s  disability  when
considered today would more closely approximate  fibromyalgia,  rather
than chronic fatigue syndrome, and that permanent  retirement,  rather
than placement on the TDRL, with a 60 percent disability rating  would
be the suitable action  to  take  in  this  case.   In  light  of  the
differing opinions and noting that both evaluations agree  that  a  60
percent disability rating is warranted, it is  our  opinion  that  the
recommendation  of  DPPD,  being  in  a  position   to   render   such
determinations  in  these  cases,  appears  to  be   the   appropriate
corrective action.  We considered  his  request  that  his  disability
rating be increased to  100  percent;  however,  we  concur  with  the
Medical Consultant’s and DPPD's findings  that  any  other  conditions
identified prior to his separation were  appropriately  identified  as
not unfitting  at  the  time  and  therefore  were  not  eligible  for
consideration during the adjudication and rating  of  his  disability.
Air Force and DVA disability systems  appear  to  have  addressed  the
applicant’s conditions within the confines of  the  laws  that  govern
each process.  We are not persuaded by his assertions that  correction
of his records in a manner contrary to what has  been  recommended  is
warranted.  Therefore, 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 17 December 2003, 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 fibromyalgia, VASRD code 5025, rated  at
60 percent, rather than chronic fatigue syndrome rated at 40  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 27 February 2004, he was honorably discharged and on
28 February 2004, he was permanently retired by reason of physical
disability.

______________________________________________________________

The following members of the Board considered AFBCMR Docket Number BC-
2007-00552 in  Executive  Session  on  27  November  2007,  under  the
provisions of AFI 36-2603:

      Mr. Thomas S. Markiewicz, Chair
      Ms. Debra K. Walker, Member
      Mr. Kurt R. LaFrance, Member

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

    Exhibit A. DD Form 149, dated 15 February 2006, w/atchs.
    Exhibit B. Letter, BCMR Medical Consultant, dated 30  August
2007.
    Exhibit C. Letter, AFPC/DPPD, dated 11 October 2007.
    Exhibit D. Letter, SAF/MRBR, dated 12 October 2007.
    Exhibit E. Letter, Counsel, dated 16 November 2007, w/atchs.




                                   THOMAS S. MARKIEWICZ
                                   Chair

                         DEPARTMENT OF THE AIR FORCE
                                WASHINGTON DC


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Office Of The Assistant Secretary

AFBCMR BC-2007-00552




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 APPLICANT, be corrected to show that:

            a. On 17 December 2003, 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 fibromyalgia, VASRD code 5025, rated at
60 percent, rather than chronic fatigue syndrome rated at 40 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 27 February 2004, he was honorably discharged and on
28 February 2004, he was permanently retired by reason of physical
disability.





     JOE G. LINEBERGER

     Director

     Air Force Review Boards Agency