RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER: BC-2007-02793
            INDEX CODE:  108.00

            COUNSEL:  DAV
            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His  disability  rating  be  increased  from  20  percent  (discharge   with
severance pay), to either 50 percent or 100 percent and that  he  be  placed
on the Temporary Disability Retired List (TDRL).

_________________________________________________________________

APPLICANT CONTENDS THAT:

The Air Force Informal  Physical  Evaluation  Board’s  (IPEB)  determination
that he be medically discharged  from  the  Air  Force  with  a  20  percent
disability rating was in error because the Department  of  Veterans  Affairs
(DVA) subsequently awarded him  a  90  percent  disability  rating  for  his
service-connected disabilities.

Based on the provided documentation and his medical records  with  the  DVA,
he is requesting a revision in his rating by the evaluation board on  1  Jun
06, to  reflect  his  current  medical  condition  for  his  service-related
injuries which have and continue to worsen since his discharge.

In support of his request, applicant provided a personal statement, AF  Form
356, Findings  and  Recommended  Disposition  of  USAF  Physical  Evaluation
Board, a DVA decision on his claim  for  service-connected  compensation,  a
letter from the Disabled American Veterans National Service  Office,  and  a
Letter from Senator Whitehouse informing applicant of his benefits.

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

_________________________________________________________________

STATEMENT OF FACTS:

On 1 Jun 06, the IPEB found  the  applicant  to  have  a  medical  condition
rendering him unfit for further military service and  rated  his  disability
at 20 percent.  The applicant was diagnosed at that  time  with  “Back  Pain
associated with L5-S1 disc disease, status post discectomy.”  The  applicant
waived his right to  challenge  this  finding  before  the  Formal  Physical
Evaluation Board (FPEB) and accepted the  IPEB’s  decision.   The  applicant
was discharged from the Air Force with severance pay on 7  Aug  06,  with  9
years, 8 months, and 25 days of active military service.

On 26 Feb 07, the DVA awarded the applicant an overall disability rating  of
90 percent for various service-connected medical conditions.

Additional relevant facts can be found in the advisory opinions prepared  by
the Air Force offices of primary responsibility.

_________________________________________________________________

AIR FORCE EVALUATION:

HQ  AFPC/DPPD  recommends  denial  of   the   applicant’s   requests.    The
preponderance of evidence reflects  that  no  error  or  injustice  occurred
during the disability process.  The Department of Defense (DoD) and the  DVA
disability evaluation systems operate under separate laws.  Under Title  10,
United States Code (USC), Physical Evaluation Boards  must  determine  if  a
member’s  condition  renders  them  unfit  for  continued  military  service
relating to their office, grade, rank or rating.  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  member  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 the USAF disability boards must rate  disabilities
based on the member’s condition at the time  of  evaluation;  in  essence  a
snapshot of their condition at that time.  It is the charge of  the  DVA  to
pick up where the AF 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 two agencies.

The complete DPPD evaluation is at Exhibit C.

HQ AFPC/JA recommends the application be denied.   JA  states  there  is  no
legal or equitable basis to change the IPEB’s findings in this case  as  the
applicant has been compensated appropriately by both the Air Force  and  DVA
under the statutes and regulations  governing  their  respective  disability
systems.  To obtain relief, the applicant must show by  a  preponderance  of
the evidence there exists some  error  or  injustice  warranting  corrective
action by the board.  The United States Claims Court has repeatedly  defined
an injustice in  the  context  of  BCMR  cases  as  “treatment  by  military
authorities that shocks the sense of justice.”  The applicant’s requests  to
have his disability rating increased and to be retired from  the  Air  Force
rely primarily upon the DVA’s disability  ratings  made  subsequent  to  his
discharge.

The regulation governing the Air Force’s disability evaluation  system,  AFI
36-3212, stresses the “prime difference between the two systems is that  the
VA may rate any  service-connected  condition  without  regard  to  fitness,
whereas the Air Force may rate only those conditions  which  make  a  member
unfit for continued military service.”  As  the  IPEB  found  the  applicant
unfit for further military  duty  solely  because  of  his  back  condition,
assigning disability ratings for  other  conditions  such  as  a  depressive
disorder and hammer toes – as  the  DVA  did  in  accordance  with  its  own
guidelines – is not  authorized  under  the  governing  DoD  and  Air  Force
disability regulations.  Accordingly, the DVA’s rating  is  not  controlling
over the Air Force and the DVA’s  determination  alone  is  insufficient  to
overcome the IPEB’s original finding.

The applicant also seeks to have his “status of discharge”  be  amended  “to
show  TDRL.”   Considering  the  applicant’s  other  request  to  have   his
disability rating increased to at least 50  percent,  it  is  reasonable  to
conclude that what he actually wants in this  regard  is  placement  on  the
Permanent Disability Retirement List (PDRL).  In this instance, there is  no
dispute that the applicant’s back condition  is  permanent  in  nature.   As
such, placing him on the  TDRL  would  be  inappropriate  in  light  of  the
parameters for its use.  The applicant is also ineligible for  TDRL  as  the
disability rating assigned for his sole unfitting  medical  condition  falls
below the 30 percent threshold required for members with less than 20  years
of credible service to receive a permanent medical  retirement.   For  those
Airmen with less than 20  years  of  creditable  service  and  a  disability
rating below 30 percent – as in the applicant’s case –  discharge  from  the
Air Force with severance pay is the only authorized  entitlement  under  the
military’s disability evaluation system.

The complete AFPC/JA evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 26 Oct 07, copies of the Air Force  evaluations  were  forwarded  to  the
applicant for review and comment within 30 days.  To date,  a  response  has
not been received.

________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided  by  existing  law  or
regulations.

2.  The application was timely.

3.  Insufficient relevant evidence has been  presented  to  demonstrate  the
existence of  error  or  injustice.   We  took  notice  of  the  applicant's
complete submission in judging the merits of the  case;  however,  we  agree
with the opinions and recommendations of the Air Force  offices  of  primary
responsibility and adopt their 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  Docket  Number     BC-2007-
02793 in Executive Session on 21 Dec 07, under the  provisions  of  AFI  36-
2603:

      Ms. Charlene M. Bradley, Panel Chair
      Ms. Audrey Y. Davis, Member
      Ms. Patricia R. Collins, Member

The following documentary evidence  pertaining  to  Docket  Number  BC-2007-
02793 was considered:


    Exhibit A.  DD Form 149, dated 20 Aug 07, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter AFPC/DPPD, dated 27 Sep 07.
    Exhibit D.  Letter, AFPC/JA, dated 24 Oct 07.
    Exhibit E.  Letter, SAF/MRBR, dated 26 Oct 07.




                                             CHARLENE M. BRADLEY
                                             Panel Chair