RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2009-01249
            INDEX CODE:  
            COUNSEL:
            HEARING DESIRED:

_________________________________________________________________

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 X214 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.

_________________________________________________________________

BCMR MEDICAL EXAMINER’S EVALUATION:

 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 lyrnphedema, 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 Get 08, under the provisions of API 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