RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

      IN THE MATTER OF:            DOCKET NUMBER:  BC-2007-03285
            INDEX CODE: 110.00
      XXXXXXX                     COUNSEL:  NONE
                                   HEARING DESIRED:  NOT INDICATED

________________________________________________________________

APPLICANT REQUESTS THAT:

His records be changed to reflect a medical retirement with at least  a  40
percent disability rating.

________________________________________________________________

APPLICANT CONTENDS THAT:

He appealed the formal Medical Evaluation Board (MEB) decision to discharge
him with a 20% disability rating without medical benefits to the  Secretary
of the Air Force Personnel Council (SAFPC).  He was fit enough to score  90
percentile on his physical fitness test and with  pain  management  he  was
able to do his job.  He did not decline surgery; this reported claim by the
SAFPC is completely inaccurate and detrimental  to  his  care.   His  legal
counsel also concluded SAFPC made an error and didn't appear to follow  the
facts.  His counsel stated even though SAFPC’s decision  is  incorrect,  he
does not have the right or authority to contact  SAFPC  on  their  mistake.
His official medical records indicate he was  under  the  care  of  a  back
specialist who deemed surgery necessary.  He fought through  the  MEBs  and
appeals asking to have  surgery  and  be  reevaluated  or  granted  medical
benefits via retirement to provide for his family.  The inaccurate decision
from SAFPC puts his family in a position of hardship and places  him  in  a
severely  injured  state.   Without  insurance  he  cannot  continue   pain
management treatment and cannot have the necessary surgery to  correct  his
line of duty injury.

In support of  his  request,  the  applicant  submits  a  personal  letter,
memorandums, AF Form 356, Findings  and  Recommended  disposition  of  USAF
Physical Evaluation Board, documents extracted from his medical records and
other documentation associated with his request.

His complete submission, with attachments, is at Exhibit A.

________________________________________________________________

STATEMENT OF FACTS:

On 17 February 2005 the applicant  was  commissioned  in  the  Regular  Air
Force.
On 3 April 2007, he underwent an MEB due to  chronic  low  back  pain  with
radiculopathy, associated with degenerative disc disease of the lumbosacral
spine.

On 2 May 2007 the Informal Physical Evaluation Board  (IPEB)  reviewed  his
case and recommended discharge with severance pay  with  a  20%  disability
rating.

He requested a hearing with the Formal Physical  Evaluation  Board  (FPEB).
On 29 June 2007, he appeared, with counsel,  before  the  FPEB.   The  FPEB
recommended discharge with severance pay with a disability rating  of  20%.
The FPEB noted that he wanted to suspend his case pending fusion surgery.

He submitted a rebuttal to SAFPC requesting  he  be  returned  to  duty  to
pursue corrective surgery.  SAFPC considered the merits of the request, but
learned he reportedly declined to pursue possible surgical treatment of his
chronic back pain.  On 20 August 2007, SAFPC concurred with the disposition
recommended by both boards to discharge  him  with  severance  pay  with  a
disability rating of 20%.

On 1 October 2007 he was discharged in the grade of first  lieutenant.   He
served two years, seven months and 15 days on active duty.

________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPSD recommends denial.  DPSD states the fact that a person may have a
medical condition does not mean the condition is  unfitting  for  continued
military service.  To be unfitting, the condition  much  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 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  Department  of  Veteran
Affairs (DVA) to pick up where the Air  Force  must,  by  law,  leave  off.
Under Title 38, Veterans’ Benefits, the DVA may rate any  service-connected
condition based upon future employability or reevaluate based on changes in
the severity of the condition.  This often results in different ratings  by
the two agencies.

The complete DPSD evaluation is at exhibit C.

The BCMR Medical  Consultant  recommends  partial  approval.   The  Medical
Consultant states when considering the totality of the applicant's case, to
include his  established  intent  to  complete  definitive  treatment,  the
probability the MEB was conducted prematurely, and the qualifying range  of
motion measurement conducted  by  an  Air  Force  Physical  Therapist,  the
Medical consultant recommends granting his relief.   However,  such  relief
should be in the form of placement on the Temporary Disability Retired List
(TDRL) with a 40% disability rating.  Thus while the TDRL is  not  utilized
for the purpose of forestalling a plan or  future  treatment  measure,  the
Medical Consultant opines this is the best  way  to  resolve  any  real  or
perceived injustices in his case, by allowing him to complete the care that
was planned for him and to allow an appropriate  period  of  post-operative
recovery; to be followed by completing of the necessary medical assessment.

The complete Medical Consultant evaluation is at exhibit D.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant responded stating the Air Force would not allow  him  to  fix
his back while on active duty.  His doctor stated “After a  review  of  the
discography done on October 9, 2006, the  patient  will  require  interbody
fusion surgery.”  The decision to operate was made prior to his  separation
from the Air Force yet the chief  of  flight  medicine  and  medical  group
commander refused to allow the corrective action to happen.   He  does  not
understand why the discography information was not made  available  to  his
doctor prior to 4 July 2007 or why the  letter  was  not  included  in  his
official medical records.  He agrees with the determination to place him on
TDRL with treatment and benefits until a final evaluation can be made after
corrective surgery/nerve studies have been made available.  He asks for the
40% disability percentage to be raised to 60% on the basis of “may  require
surgery" to “will require  interbody  fusion  surgery"  as  stated  in  the
additional evidence he has provided.  He will  obviously  be  incapacitated
while corrective surgery takes place and  recovery  happens.   This  proves
beyond any doubt that corrective surgery is necessary due to  the  line  of
duty injury from October 2005.  He looks forward to  a  full  recovery  and
returning to active  duty  service  in  whatever  capacity  the  Air  Force
determines after being reevaluated under the TDRL guidelines.

His complete response, with attachment, 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.  Sufficient relevant evidence  has  been  presented  to  demonstrate  the
existence of error or  injustice  warranting  corrective  action.   In  this
respect, as noted by the  BCMR  Medical  Consultant,  it  appears  that  the
applicant's MEB may have been conducted prematurely, and therefore,  he  may
not  have  been  given  the  appropriate  consideration  in  effecting   his
discharge from the Air Force.  Accordingly, we agree with the assessment  of
the BCMR Medical Consultant  and  recommend  his  records  be  corrected  to
reflect placement on the TDRL with a 40% disability rating.   Therefore,  we
recommend that his records be corrected as indicated below.

________________________________________________________________

THE BOARD RECOMMENDS THAT:

Pertinent military records of the Department of the Air Force  relating  to
APPLICANT, be corrected to show that:

      a.  He was not  discharged  from  active  duty  with  entitlement  to
severance pay on 1 October 2007, rather on 2  October  2007  his  name  was
placed on the  Temporary  Disability  Retired  List  with  a  diagnosis  of
intervertebral disc syndrome, with a VASRD Code of 5243, and a  compensable
rating of 40%.

      b.  On 2 October 2007, he declined spouse and children coverage under
the Survivor Benefit Plan (SBP) and his spouse concurred with his election.

________________________________________________________________

The following members of the Board considered AFBCMR Docket Number BC-2007-
03285 in Executive Session on 24 July 2008, under the provisions of AFI 36-
2603:

                 Ms.  B. J. White-Olson, Panel Chair
                 Mr.  Garry G. Sauner, Member
                 Ms.  Janet I. Hassan, Member

The following documentary evidence pertaining to AFBCMR Docket  Number  BC-
2007-03285 was considered:

Exhibit A.  DD Form 149, dated 2 October 2007, w/atchs.
Exhibit B.  Applicant’s Master Personnel Records.
Exhibit C.  Letter, AFPC/DPSD, dated 2 January 2008.
Exhibit D.  Letter, BCMR Medical Consultant, dated 30 April 2008.
Exhibit E.  Letter, SAF/MRBR, dated 9 May 2008.
Exhibit F.  Letter, Applicant, dated 14 May 2008, w/atch.




            B. J. WHITE-OLSON
            Panel Chair





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Office of the Assistant Secretary

AFBCMR BC-2007-03285






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 XXXXXXX, XXXXXXX, be corrected to show that:

      a.  He was not  discharged  from  active  duty  with  entitlement  to
severance pay on 1 October 2007, rather on 2  October  2007  his  name  was
placed on the  Temporary  Disability  Retired  List  with  a  diagnosis  of
intervertebral disc syndrome, with a VASRD Code of 5243, and a  compensable
rating of 40%.

      b.  On 2 October 2007, he declined spouse and children coverage under
the Survivor Benefit Plan (SBP) and his spouse concurred with his election.









                                                             JOE G.
      LINEBERGER
                                                             Director
                                                             Air Force
      Review Board Agency





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