RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:            DOCKET NUMBER:  BC-2007-02292
                             INDEX CODE:  108.00
                             COUNSEL:  NONE
                                                   HEARING DESIRED:
NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His disability rating  be  changed  from  30  percent  to  reflect  he
received a disability rating of 100 percent due to unemployability.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The  Disability  Evaluation  System  (DES)  failed  him.   The  Formal
Physical Evaluation Board (FPEB) rendered  an  inconclusive  decision.
The FPEB did not address or provide an  explanation  of  the  criteria
used in his case.  He  was  cautioned  that  if  he  appealed  to  the
Secretary of the Air Force he could jeopardize  the  FPEB  rating  and
risk the outcome of a lower rating.

In support  of  his  application  he  submitted  copies  of  documents
extracted from his military medical and civilian medical records;  and
statements from co-workers, friends, and family.

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

_________________________________________________________________

STATEMENT OF FACTS:

Applicant contracted his initial enlistment in the Regular  Air  Force
on 21 Jun 82.  He was progressively promoted to the  grade  of  master
sergeant having assumed that grade effective with a date of rank 1 Jul
01.  He was honorably discharged on 16 Apr 87 and enlisted in the  Air
Force Reserves on 27 Apr 87.

On 22 Mar 06, he underwent a Medical Board Evaluation (MEB) because of
his duty limiting back pain.  The MEB referred his case to a  Physical
Evaluation Board (PEB).  A records-only review board was conducted  by
the Informal Physical Evaluation Board (IPEB) and found him unfit  and
recommended discharge with severance pay with a 20 percent  disability
rating.  He disagreed and appealed the findings to the FPEB.  The FPEB
reviewed his case and  recommended  permanent  retirement  with  a  30
percent disability rating.

He was permanently retired on 16 Apr 07.  He served 6 years,  7 months
and 18 days on active duty.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPD recommends the requested relief be denied.  DPPD states  the
FPEB did not fully list all the criteria used  in  their  decision  to
deny the award of unemployability; however, it would not have  changed
their recommendation for the 30 percent disability rating.  There  was
no hard medical evidence to support awarding unemployability.  He  did
submit letters from a physician that stated his prognosis was poor and
will significantly impair any gainful employment, but did not give any
medical evidence as to what prevented him from working.  The physician
did not feel he needed anymore neurosurgery and suggested  he  try  to
return to work and recommended he lose 20-40 pounds.

The Department of Defense (DoD) and the Department of Veterans Affairs
(DVA) disability  evaluation  systems  operate  under  separate  laws.
Under title 10, U.S.C., PEB must determine if a  condition  renders  a
member unfit for continued military service.  The fact that  a  person
may have a medical condition does  not  mean  that  the  condition  is
unfitting for  continued  military  service.   To  be  unfitting,  the
condition must be such that it alone  precludes  the  individual  from
fulfilling their military duties.  If the board renders a  finding  of
unfit, the law provides appropriate compensation due to the  premature
termination of their career.  Further,  it  must  be  noted  that  the
service  disability  boards  must  rate  disabilities  based  on   the
individual's condition at the time of evaluation.  It is the charge of
the DVA to pick up where the service must, by law, leave  off.   Under
title 38, the DVA may rate any service-connected condition based  upon
future employability or reevaluate based on changes in the severity of
a condition.  This often results in different ratings by the  DoD  and
DVA.

AFPC/DPPD'S complete evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant states the evaluation stated he  wanted  his  disability
rating changed from 30 percent to 100 percent;  however,  he  is  also
requesting the criteria used for the FPEB decision to deny  the  award
of unemployability.  The response he received  from  an  congressional
inquiry stated "While the FPEB did not fully list  the  criteria  used
for their decision to deny the award of unemployability, the Air Force
Personnel Center Disability Office will ensure that in  future  cases,
the appropriate comments are included on all  recommendations."   This
is great, however, he still was not provided the criteria used in  his
case.  The advisory writer for the Air  Force  evaluation  stated  "it
would not  have  changed  their  recommendation  for  the  30  percent
disability rating."  This is the writer's opinion and  is  evasive  in
the response and has failed to identify the criteria used  in  denying
the unemployability.  He further asks why is the criteria used in  his
case such a big secret?  Based on Federal law set by Congress,  he  is
to have this information and to date he has not received it.  At  this
point he cannot effectively address the  AFBCMR  without  knowing  the
criteria being used because he  does  not  know  what  information  is
missing.

Furthermore, the evaluation stated "No medical  evidence  as  to  what
prevented him from working...," the documents submitted  in  his  case
clearly stated his medical condition, as well as all  the  non-medical
evidence that showed he cannot work.  His case also included  letters,
statements from his previous supervisor stating  he  cannot  work,  as
well as friends and wife who see how his impairment has effected [sic]
his quality of life.  He hopes the FPEB  has  forwarded  his  complete
records to the AFBCMR for review to clarify the errors stated  in  the
evaluation (Exhibit E).

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

The AFBCMR Medical Consultant  recommends  the  requested  relief  be
denied.  The Medical Consultant states the applicant has provided the
DoD definition of "unemployability," taken from  DoD  1332.39,  which
reads: "Total  disability  will  be  considered  to  exist  when  the
member's impairment is sufficient to render  it  impossible  for  the
average person suffering the same  medical  condition  to  engage  in
substantially gainful civilian occupation."  The IPEB and FPEB  rated
the applicant's back condition at 20 percent.  The FPEB  included  an
additional rating for  radicular  symptoms,  thus  achieving  the  30
percent for a medical retirement.  A civilian physician submitted two
letters stating he believes the  applicant's  condition  will  remain
chronic and significantly impair his  opportunities  for  employment.
Despite the likely permanent nature of the applicant's  chronic  back
pain,  there  is  no  substantial  objective  evidence,  such  as   a
functional   assessment   report,   or   confinement   to   bed    or
hospitalization, to conclude  that  the  applicant  was  100  percent
permanently disabled at the time of his retirement.  Any  progression
or worsening of the applicant's back disorder that has occurred since
the date of his retirement cannot form the basis for a change in  his
disability rating by the DoD.   The  Military  Disability  Evaluation
System is chartered to maintain a fit and vital force and  can  only,
by law, offer compensation for  the  medical  condition(s)  that  cut
short a service member's career; and  then  only  to  the  degree  of
severity present at the "snap shot" time of final  disposition.   The
DVA is empowered to  offer  compensation  for  any  service-connected
medical condition, such as the applicant's hearing loss and tinnitus,
without regard to its documented  or  demonstrated  impact  upon  his
retainability.  The DVA may periodically  re-evaluate  the  applicant
for the purpose of adjusting the disability rating award  should  his
level of impairment fluctuate over time; to include  eligibility  for
adjusting the applicant's disability rating to 100 percent, if  later
supported by medical evidence.  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 AFBCMR Medical Consultant’s complete evaluation is at Exhibit F.

_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

On 22 Jan 08, a copy  of  the  additional  Air  Force  evaluation  was
forwarded to the applicant for review and response within 30 days.  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 timely filed.

3.    Insufficient relevant evidence has been presented to demonstrate
the existence of error or injustice.  Applicant’s contentions are duly
noted; however, we agree with the opinion and  recommendation  of  the
Air Force office of primary  responsibility  and  the  AFBCMR  Medical
Consultant and adopt their rationale as the basis for  our  conclusion
that the applicant  has  not  been  the  victim  of  an  error  or  an
injustice.  Evidence has not been presented which  would  lead  us  to
believe that the disability rating assigned at  final  disposition  of
his case was in error or contrary to the provisions of  the  governing
instruction, which implements the law.  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 AFBCMR Docket Number BC-
2007-02292 in Executive Session on 28 May 08, under the provisions  of
AFI 36-2603:

                       Mr. James W. Russell III, Panel Chair
                       Ms. Karen A. Holloman, Member
                       Mr. Walter F. Beard, Jr., Member

The following documentary evidence was considered:

      Exhibit A. DD Form 149, dated 10 Jul 07, w/atchs.
      Exhibit B. Applicant's Master Personnel Records.
      Exhibit C. Letter, HQ AFPC/DPPD, dated 27 Nov 07.
      Exhibit D. Letter, SAF/MRBR, dated 4 Jan 08.
      Exhibit E. Letter, Applicant's Response, dated 28 Jan 08.
      Exhibit F. Letter, AFBCMR, Medical Consultant, dated 14 Mar
08.
      Exhibit G. Letter, SAF/MRBR, dated 24 Mar 08.




                             JAMES W. RUSSELL III
                             Panel Chair