RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2008-00444
            INDEX CODE:  108.00

            COUNSEL:

            HEARING DESIRED: Yes

_________________________________________________________________

APPLICANT REQUESTS THAT:

His records be corrected to show that he was medically  retired  from  the
Air Force on 8 June 2007 due to a back injury considered in  the  line  of
duty (ILOD).

_________________________________________________________________

APPLIANT CONTENDS THAT:

He was separated without undergoing  Disability  Evaluation  System  (DES)
processing even though he had sustained an active duty line of duty  (LOD)
injury  to  his  back  which  warranted  DES  processing  and  a   medical
retirement.

In support of his appeal, the applicant provides a personal statement, and
numerous attachments including pertinent  parts  of  his  medical  record,
statements of support, his National Guard Bureau (NGB) Form 22, Report  of
Separation and Record  of  Service,  discharge  paperwork  and  copies  of
numerous orders.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant began his military service with the New  York  Air  National
Guard (NYANG) on 17 October 1993.  He was progressively  promoted  to  the
grade of technical sergeant (TSGT/E-6) effective and with a date  of  rank
(DOR) of 15 September 1999.  He has had reported bouts of  low  back  pain
from as far back in his career as 1993-1994.

On 14 December 2005,  he  was  diagnosed  with  lumbar  degenerative  disc
disease at L 4-5 and L5-S1 levels.  On 4 November  2006  he  underwent  an
Aeromedical Summary (AMS) as he was a flight engineer.  The AMS notes  the
applicant had no flying hours during the six months prior to the AMS.   It
also noted his several-year  history  of  back  problems  along  with  his
recently diagnosed disc disease.  He underwent a Lumbar Disecectomy on L5-
L5 on 27 March 2006 that levied permanent restrictions on his  duty.   The
AMS notes several permanent physical restrictions placed on the  applicant
and recommends he be retained to finish out his  service  (20  years)  but
under an assignment limitation code (ALC).

On 28 March 2006, he had requested an LOD determination for a  lower  back
injury he received while on active duty on 14 December 2005.  He  provided
an AF Form 348, Line of Duty Determination, however, it appears  the  form
was never completed and signed by those individuals required to do so.

On or about 26 January 2007, he was notified of his  disqualification  for
worldwide duty and that he  was  being  recommended  for  discharge.   The
applicant acknowledged receipt of the notification and requested his  case
be referred to the DES solely for a fitness  determination.   Also  on  26
January 2007, his enlistment with the NYANG was extended for six months as
noted by the NYANG that “Member has just started a DES case.”  However, on
6 June 2007, he was  honorably  discharged  from  the  NYANG  for  medical
disqualification.  He had served for 15  years,  8  months,  and  11  days
toward a Reserve retirement at age 60.

________________________________________________________________

AIR FORCE EVALUATION:

NGB/A1PS, citing evidence presented  by  the  ANG  subject  matter  expert
(SME), recommends denial.  A1PS notes the applicant’s  statements  wherein
he claims to have  experienced  several  debilitating  or  otherwise  back
injuries from 1994 through late 2005.  While  A1PS  does  acknowledge  the
applicant’s diagnosis of lumbar  degenerative  disc  disease  in  December
2005, A1PS states it is  unlikely  his  degenerative  condition  developed
while he was on active duty for the nine  days  preceding  the  diagnosis.
However, it is possible the applicant could have aggravated  a  previously
existing condition that led to the diagnosis.   Nevertheless,  other  than
the applicant’s claims, along with letters of support from  witnesses  who
observed the applicant in pain, there is no document that links a specific
event or chain of events leading to an  injury  caused  or  aggravated  by
military service.

A1PS notes an Air Force Form 488, Line of Duty Determination, should  have
been completed each time a suspected injury occurred.   The  LOD  included
with his application to the BCMR was incomplete.  Further, A1PS notes  the
lack of evidence presented by the applicant that would validate any of his
statements concerning any back injuries while on  orders.   Even  so,  the
applicant was contacted on 5 February 2007 and informed of  his  right  to
enter the DES for a fitness to  serve  decision  only  and  the  applicant
reportedly acknowledged receipt of that notification.  The  applicant  was
contacted on the 7th and 8th of May 2007 informing him that  he  had  been
granted  a  30-day  extension  with  which   to   provide   the   required
documentation supporting his case.  He failed to respond  or  produce  any
documentation and was summarily transferred to the  Reserve  Retired  List
(RRL) awaiting Reserve retired pay at age 60.

A1PS’s complete evaluation is at Exhibit C.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the  applicant  on  11
March 2009 for review and comment within 30 days.  As  of  this  date,  no
response has been received by this office.

________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

The BCMR Medical Consultant recommends denial.   He  earnestly  empathizes
with the applicant, his chronic medical condition, and the fact he was not
processed through the DES; however, his case has features of  a  condition
that had been present for several years with no definitive relationship to
military  service  (other  than  reported  exacerbations  of  pain).   The
applicant has not met the burden  of  proof  the  origin  of  his  medical
condition (herniated lumbar discs) was service-incurred  or  that  it  was
permanently aggravated despite the fact  he  reported  the  onset  of  one
period of pain while serving on active duty.

Alternatively, the  Medical  Consultant  opines  the  applicant  would  be
qualified for a Reserve retirement at age 60 as he has served more than 15
years of satisfactory service but less than 20, and his medical  issue  is
not considered ILOD.

The complete Medical Consultant’s evaluation at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATION:

He notes the NGB has already transferred him to the Reserve  Retired  List
(RRL) awaiting Reserve retired pay  at  age  60.   He  reported  his  back
injuries  to  his  command  but  his  command  failed  to  accomplish  LOD
investigations for any instance he reported.  He  notes  the  VA  has  not
rated his lumbrosacral strain as service-connected  but  he  is  appealing
their decision.  The 26 Feb 09 advisory recognizes his injury was possibly
aggravated  by  service  and,  in  accordance  with  38  CFR,  any   doubt
surrounding service connection or not should be resolved in his favor.  He
reiterates his desire to receive a LOD ruling from the Board and be put on
orders to meet a medical  evaluation  board  (MEB)  at  Walter  Reed  Army
Medical Center.

Applicant’s complete response is at Exhibit G.

_________________________________________________________________




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.   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 office  of  primary
responsibility and the BCMR Medical Consultant and adopt  their  rationale
as the basis for our conclusion the applicant has not been the  victim  of
an error or injustice.  It appears the applicant was  transferred  to  the
RRL in accordance with 10 USC 12734b which allows for the retirement of  a
member with more than 15 but less than 20 years  of  satisfactory  service
who is  discharged  for  disability  deemed  not  in  the  line  of  duty.
Therefore, in the  absence  of  evidence  to  the  contrary,  we  find  no
compelling  basis  to  recommend  granting  the  relief  sought  in   this
application.

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 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-2008-
00444 in Executive Session on 18 November 2009, under  the  provisions  of
AFI 36-2603:


The following documentary evidence with regard to AFBCMR
Docket Number BC-2008-00444 was considered:

    Exhibit A. DD Form 149, dated 24 Jan 08, w/atchs.
    Exhibit B. Applicant's Master Personnel Records.
    Exhibit C. Letter, NGB/A1PS, dated 26 Feb 09, w/atchs.
    Exhibit D. Letter, AFBCMR, dated 10 Mar 09.
    Exhibit E. Letter, Medical Consultant, dated 18 Mar 09.
    Exhibit F. Letter, SAF/MRBR, dated 27 Mar 09.
    Exhibit G. Letter, Applicant, dated 18 Jun 09.





                                   Panel Chair