RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2008-01249
            INDEX CODE:  108.00
            COUNSEL:  NONE
            HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

His records be corrected  to  reflect  he  was  promoted  to  the  grade  of
Technical Sergeant (E-6) effective and with a date of rank of 1 Apr 05,  and
medically retired in the grade of E-6.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He began experiencing migraine headaches in Mar 02 after his right foot  was
crushed.  He now experiences one to two migraine episodes  a  week.   During
the episodes, he cannot function, self-medicates,  and  lies  in  bed  in  a
completely darkened room.  If the migraines do not cease, he must go to  the
emergency room for treatment.  He is not able  to  drive,  so  his  wife  is
forced to care for him and the children.

His  2  Apr  05  Department  of  Veterans  Affairs  (DVA)  rating   decision
established his migraine headaches as directly related to military  service.
 He requested his condition be included in his discharge decision;  however,
the board determined his migraines “did not  rise  to  the  level  of  being
unfitting.”  His service medical records show the migraines as frequent  and
severe; yet, this information was either underestimated or not  provided  to
the Medical Evaluation Board (MEB).

He was granted a 100 percent disability rating by the DVA on  6 Dec  06  due
to individual unemployability.  He requested a recall of  the  MEB  decision
from the  Physical  Evaluation  Board  (PEB)  review  because  his  migraine
information was not included.  A request for delay  and  a  small  statement
was added to the PEB; however, the report  was  not  recalled.   He  made  a
second request to recall the decision of the PEB,  but  it  never  occurred.
He tried to correct the information and provide to the PEB  current  medical
evaluations included in  his  original  discharge  procedures.   He  sent  a
rebuttal to the Formal PEB (FPEB); however, his request  was  again  denied.
His case was decided without the correct information on his  migraines.   If
the  correct  information  had  been  available,  the  MEB/PEB  would   have
medically retired him from service.

He would like to be retired per AFI 36-3212 section 5C, Para.  5.15.4  which
states that “Members who are retired on or after 23 Sep 96  may  be  retired
in the regular or reserve grade to which they had been  selected  and  would
have been promoted, had it not been for the physical  disability  for  which
they were retired.”  He was selected for promotion to E-6 with  line  number
6518.5.  He would have been promoted to  the  grade  of  technical  sergeant
(TSgt), effective and with a date of rank of 1 Apr 05 were it  not  for  his
discharge.

In support of the application, the applicant submits a  personal  statement,
a copy of his DVA decision, and a memorandum with attachments.

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

_________________________________________________________________

STATEMENT OF FACTS:

Applicant  was  honorably  discharged  on  1 Apr  05  for  disability,  with
severance pay.  He had served 8 years, 9 months and 19 days on active  duty.


The applicant’s DD Form `214 reflects he was separated in the grade of  SSgt
and paid disability severance pay in the grade of TSgt  in  accordance  with
Title 10, United States Code (U.S.C.) section 1212.

The remaining relevant facts pertaining to this application, extracted  from
the applicant’s military records, are contained in the letters  prepared  by
the appropriate office of the Air Force at Exhibits C & D.

_________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/DPSD recommends denial.  DPSD states that because the applicant  had
a projected line  number  to  the  grade  of  TSgt,  his  discharge  message
authorized separation with severance pay in the  grade  to  which  he  would
have been promoted had it not been for his physical disability.

The complete DPSD evaluation is at Exhibit C.

The BCMR Medical Consultant recommends granting the applicant relief in  the
interest  of  justice  by  establishment  of  permanent  retirement  with  a
combined disability rating of 30 percent.

The BCMR Medical Consultant states that the applicant underwent an MEB on  6
Jul 04 following surgical treatment of Stage IIA testicular  cancer;  which,
following surgical treatment and chemotherapy, was  brought  into  “complete
remission.”  His MEB narrative summary was completed on 17 Jun 04;  however,
an addendum prepared on 9 Aug  04  to  the  MEB  report  is  descriptive  of
residual swelling involving his right upper extremity.  He was  required  to
wear a bulky compressive sleeve on the right arm in order to discourage  the
re-accumulation of tissue fluid resulting in  arm  swelling.   He  was  also
instructed to take meticulous  care  of  the  extremity  and  to  avoid  any
trauma.  His case was referred to the IPEB resulting  in  an  unfit  finding
and a recommendation for discharge with  severance  pay  with  a  10 percent
disability rating.  He appealed this decision to the FPEB, at which time  he
requested a higher disability rating of 40 percent for his arm swelling  and
a separate disability rating of 30 percent for his migraine headaches.   The
FPEB acknowledged the existence of his headaches but opined the  applicant’s
headaches “did not rise to the level of being unfitting.”  He  submitted  an
appeal to SAFPC for reconsideration; however, Secretary  of  the  Air  Force
Personnel Counsel (SAFPC) upheld the decision of the FPEB to  discharge  him
with a 20 percent disability rating for his right arm lymph edema.

The Medical Consultant’s expressed concern is that a final  rating  decision
was made  with  full  knowledge  that  the  applicant  reportedly  had  been
scheduled an appointment with a neurologist at the time his case  was  under
adjudication.  His health care provider stated “Since the submission of  the
MEB, it has come to the  attention  of  medical  providers  that  he  has  a
history  of  headaches  consistent  with  migraines  which  has   not   been
evaluated.  He has an appointment with neurology for an  initial  evaluation
for this issue on Dec 28, 2004.  Request a temporary  hold  on  finalization
of his MEB decision pending full  review  by  a  Neurologist  or  any  other
subspecialty  that  may  be  required,  pending   any   initial   diagnostic
examinations or tests, and pending any therapeutic decisions.”  However,  by
policy, only the servicing hospital  commander  or  designee  can  recall  a
case.  There is  no  evidence  that  either  the  hospital  commander  or  a
designee  was  apprised  of  the  applicant’s   request;   nor   was   there
consideration by previous adjudication bodies to delay further ruling.

The BCMR Medical Consultant is significantly concerned of the appearance  of
an injustice committed in processing the  applicant’s  case  by  failing  to
offer the applicant the benefit of a final assessment of  his  headaches  as
this would have more likely than not resulted in  an  addendum  to  the  MEB
summary, upon which  the  FPEB  and  SAFPC  could  have  objectively  acted.
Therefore in good conscious and in consideration of the  unique  aspects  of
this case, the BCMR Medical Consultant is of the opinion that the  applicant
should  be  granted  an  unfit  finding  of  10  percent  for  his  migraine
headaches.   The  10  percent  disability  rating  takes  into  account  the
preponderance of medical evidence of record, which  reflects  that  although
the applicant’s medications had reportedly required adjustment in the  weeks
and months approaching his  date  of  discharge,  that  his  headaches  were
reasonably controlled with Imitrex and Inderal.  Thus, when the  10  percent
disability rating is combined with the  20  percent  rating  for  his  right
upper extremity lymphedema, a disability rating of 30 percent is achieved

The complete Medical Consultant’s evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the  applicant  on  16
May 08 and 10 Jun 08, respectively, for review and comment within  30  days.
As of this date, this office has received no response (Exhibit D).

_________________________________________________________________

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 an error or injustice.  After a careful review of the  evidence
of record, we are of the opinion a  change  in  the  applicant’s  disability
rating  is  warranted.   We  concur  with  the  BCMR  Medical   Consultant’s
evaluation that, had the applicant been afforded a final assessment  of  his
headaches, an addendum to the MEB summary would  have  occurred.   This,  in
turn, may have resulted in the applicant being granted an unfit  finding  of
10 percent for his migraine headaches.  The additional  10  percent  coupled
with the 20 percent he had  already  been  awarded  would  have  totaled  30
percent thereby resulting in  his  eligibility  for  a  medical  retirement.
Accordingly, in accordance with Title 10 USC, Section 1372, he  is  entitled
to be placed on the  retired  list  in  the  grade  of  Technical  Sergeant.
Therefore, we recommend the applicant be granted relief in the  interest  of
justice and his records be corrected as indicated below.

4.  The applicant's case is adequately documented and it has not been shown
that a personal appearance with or without counsel will materially  add  to
our understanding of the issue involved.   Therefore,  the  request  for  a
hearing is not favorably considered.

_________________________________________________________________

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 19 Jan 05, 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 diagnoses in  his  case
were residual arm swelling or lymphedema, Veterans  Administration  Schedule
for Rating Disabilities (VASRD) Code 7121-7199, rated  at  20  percent;  and
migraine headaches, VASRD Code 8100, rated at 10  percent;  that  the  total
combined  compensable  percentage  was  30  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.  He was discharged from active duty on 1 April 05, and on  2  April
05, he was permanently retired by reason of physical disability  with  a  30
percent compensable disability rating, in the grade of  Technical  Sergeant,
rather than discharged with disability severance pay.

_________________________________________________________________

The following members of the Board considered this application in  Executive
Session on 30 Oct 08, under the provisions of AFI 36-2603:

      Mr. Michael J. Novel, Panel Chair
      Mr. Garry G. Sauner, Member
      Ms. Yvonne T. Jackson, Member

The following documentary evidence was considered in  AFBCMR  Docket  Number
BC-2008-01249:

    Exhibit A.  DD Form 149, dated 27 Mar 08, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, HQ AFPC/DPSD, dated 16 Apr 08.
    Exhibit D.  Letter, SAF/MRBR, dated 16 May 08.
    Exhibit E.  Letter, BCMR Med Consultant, dated 4 Jun 08.
    Exhibit F.  Letter, AFBCMR, dated 10 Jun 08.




                                   Michael J. Novel
                                   Panel Chair
                         DEPARTMENT OF THE AIR FORCE
                                WASHINGTON DC

[pic]
Office Of The Assistant Secretary


AFBCMR BC-2008-01249




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 19 Jan 05, 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 diagnoses in
his case were residual arm swelling or lymphedema, Veterans Administration
Schedule for Rating Disabilities (VASRD) Code 7121-7199, rated at 20
percent; and migraine headaches, VASRD Code 8100, rated at 10 percent; that
the total combined compensable percentage was 30 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.  He was discharged from active duty on 1 April 05, and on 2
April 05, he was permanently retired by reason of physical disability with
a 30 percent compensable disability rating, in the grade of Technical
Sergeant, rather than discharged with disability severance pay.





     JOE G. LINEBERGER

     Director

     Air Force Review Boards Agency