RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBER:  BC-2010-02438

                                        COUNSEL: NONE

                                        HEARING DESIRED:  NO

________________________________________________________________

APPLICANT REQUESTS THAT:

1.  The  findings  and  recommended  disposition   of   the   Physical
Evaluation Board’s (PEB) decision of Permanent Retirement  be  removed
from his records

2.  All documents and references pertaining to the Medical  Evaluation
Board (MEB) determination be removed from his records.

3.  He be returned to active duty with his original service entry date
of 13 Mar 89.

4.  He receive service credit for the  period  following  his  medical
retirement to the date of his return to active duty.

5.  He receive all applicable back  pay  and  allowance  due  him,  to
include leave he would have accrued, educational  funds  lost  due  to
medical retirement, reimbursement  for  Survivor  Benefit  Plan  (SBP)
payments, Basic Allowance for Housing (BAH) and any other entitlements
associated with reinstatement.

6.  He be approved for retirement upon return to active  duty  and  by
amendment, promotion consideration by  the  05E7,  06E7,  07E7,  08E7,
09E7, 10E7 and 11E7 promotion cycles; and if approved  all  back  pay,
benefits and entitlements as of the effective date of promotion.

7.  He receive a DD Form 363, AF Certificate of  Retirement,  AF  Form
134,  Certificate  of  Appreciation  for  his   Spouse,   Presidential
Recognition; all travel and  transportation  entitlements,  waiver  of
recoupment of any funds caused by the unjust findings of the PEB,  and
he maintain his current  disability  rating  from  the  Department  of
Veterans Affairs (DVA).

8.  He receive $100,000 for pain and suffering for the  injustices  to
which he was subjected.

________________________________________________________________

APPLICANT CONTENDS THAT:

His medical retirement was unjust.  He underwent an MEB for  low  back
pain and was found unfit and unjustly  retired.   He  has  never  been
hospitalized or frequently missed duty due to his low back pain.   His
low back pain had not been an issue in the performance of  his  duties
or being deployed until  he  filed  a  complaint  with  the  Inspector
General for unfair treatment regarding an extended tour decoration.

In support of his appeal, the applicant provides  documents  extracted
from his military personnel records and a statement.

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

________________________________________________________________

STATEMENT OF FACTS:

On 13 Mar 89, the applicant contracted his initial enlistment  in  the
Regular Air  Force.   He  was  promoted  to  the  grade  of  technical
sergeant, having assumed that grade effective and with a date of  rank
of 1 Jan 03.

On 22 Mar 05, the applicant underwent a Medical Evaluation Board (MEB)
for low back pain.  The MEB referred the case to the Informal Physical
Evaluation Board (IPEB) based on the diagnosis  of  chronic  low  back
pain secondary to lumbar degenerative disc  disease  and  spondylosis.
On 21 Apr 05, the IPEB  found  the  applicant  unfit  and  recommended
discharge with severance pay with a 20 percent disability rating.   On
25 Apr 05, the applicant nonconcurred with the IPEB  and  requested  a
hearing before  the  Formal  Physical  Evaluation  Board  (FPEB).   On
24 May 05, the FPEB considered and determined he was no longer able to
carry out the duties of  his  Air  Force  Specialty  Code  (AFSC)  and
recommended he be permanently retired with  a  40  percent  disability
rating.  The FPEB considered the applicant’s request to be returned to
duty; however, his Primary Care Manager (PCM) indicated his  condition
would not improve and might progress in the future.  On 24 May 05, the
applicant concurred with the findings and recommendation of the  FPEB.
On 31 May 05, the Secretary of the  Ari  Force  (SAFPC)  directed  the
applicant be permanently retired with a 40 percent disability  rating.
On 11 Jul 05, he was released from active  duty  and  was  permanently
retired on 12 Jul 05 with a physical disability rating of 40  percent.
He served 16 years, 3 months and 29 days of active service.

________________________________________________________________

The remaining  relevant  facts  pertaining  to  this  application  are
contained in the letter prepared by the appropriate offices of the Air
Force, which are attached at Exhibits C through F.

________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPSD  recommends  denial.   DPSD  states  the  preponderance   of
evidence reflects that no  error  or  injustice  occurred  during  the
disability process at the time of  the  applicant’s  separation.   The
overall charter of the physical evaluation boards is to maintain a fit
and vital force.  The determination of fitness for duty  is  based  on
many factors which include, but are not limited to, a service member’s
duty limitations, required work-arounds, medical care needs and risks,
and deployment restrictions.

The governing instruction states  that  all  members  retiring  for  a
disability with enough creditable service to qualify for  nondisabiity
retirement, should be given  a  retirement  certificate.   However,  a
nondisability retirement requires 20 years of  active  service  to  be
eligible for a certificate.  The applicant  had  16  years  of  active
service and is not eligible for the retirement certificate.

The complete AFPC/DPSD evaluation is at Exhibit C.

AFPC/DPSOR recommends denial.  DPSOR  states  the  applicant  has  not
provided evidence of fraud, mistake of law or substantial new evidence
concerning his physical disability retirement.  DPSOR states  that  it
has been more than three years since he discovered the  alleged  error
or injustice; and the applicant must show why it is in the interest of
justice for the Board to  consider  his  application.   The  applicant
stated that he discovered the injustice on 15 Aug  10.   He  has  been
permanently disability retired since 12 Jul 05 and his contentions are
the same as were presented to, and considered  by,  the  FPEB  in  May
2005.  The current Air Force  fitness  standards  are  more  stringent
today than in 2005, so if he could not meet the standards in 2005,  he
more than likely would not be able to meet the 2010  standards,  since
his condition was deemed degenerative.

The complete AFPC/DPSOR evaluation is at Exhibit D.

AFPC/DPSOE recommends denial of his request  for  promotion  to  MSgt.
DPSOE states that based on the applicant’s date of rank (DOR) to TSgt,
he was eligible and tested for promotion  to  MSgt  during  the  cycle
05E7.  The  applicant’s  tests  were  never  scored  and  he  was  not
considered for promotion, as he was found unfit for  further  military
service.  The governing instruction for  promotion  of  airmen  states
that an airman is ineligible for promotion in a particular cycle if he
has been determined by the Secretary of the Air Force to be  unfit  to
perform the duties of his grade because of physical  disability.   The
applicant’s  promotion  file  was  turned  off  when   his   promotion
eligibility status (PES) code “L” was updated in the system, as he was
no longer eligible for promotion consideration.

The complete AFPC/DPSOE evaluation is at Exhibit E.

AFPC/JA recommends denial of the applicant’s request for  compensation
for pain and suffering as  such  compensation  cannot  be  paid  under
current law.    The enacting statute of the Board spells out what  the
Secretary may do upon action of the Board:   The  Secretary  concerned
may pay, from applicable current appropriations, a claim for the  loss
of pay, allowances,  compensation,  emouluments,  or  other  pecuniary
benefits, or for the repayment of a fine or forfeiture…”  Under 10 USC
the statute does not permit payment for money  damages  for  pain  and
suffering.  The federal courts have upheld  the  principle  the  Board
cannot, through correction of a record, authorize  payment  for  money
damages. JA concurs with the evaluations of AFPC/DPSD, AFPC/DPSOR, and
AFPC/DPSOE.

The complete AFPC/JA evaluation is at Exhibit F.

________________________________________________________________

APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION:

Their opinions and recommendations do not substantiate the Air Force's
actions and  disposition  in  this  case  were  proper  and  equitable
reflecting compliance with DoD and Air Force directives that implement
the law. The basis of his request is that he  was  unjustly  processed
for an MEB.

The PCM stated that his low back pain prevented  him  from  performing
physical fitness training. However, the inability to perform  physical
fitness training is not justification for an MEB.  To process him  for
an MEB due to physical fitness is contrary to DoD policy  as  well  as
Air Force Instructions.  The PCM further stated "He does  appear  able
to perform his activities as within  personnel  at  this  time".   The
Mission Support Squadron Commander provided evidence that he was  able
to perform his duties within his  office  and  grade.   The  commander
stated, "he is not on a duty profile."

The evidence of record indicates that he was medically  qualified  for
continued active service at the time he  was  processed  for  an  MEB.
Although he had some back problems while on active duty,  it  did  not
prevent him from performing his duties.  .  The fact that a  condition
exists does not render a military member unfit; and at the time of his
disability processing, there was no  evidence  of  an  unfitting  back
condition.   DPSOR  failed  to  submit  an  opinion   based   on   the
circumstances that led to his initial MEB processing.   He  has  never
failed an Air Force fitness test, and his performance  reports  states
his weight and fitness exemplifies top  military  standards.  Further,
Aerobic Fitness Report, dated 8 May 2003, lists  the  conditions  that
must be met for ergometry assessment which at the  time  was  a  valid
assessment of fitness.

  Degenerative  disc  disease  is  a  misunderstood  condition.   This
condition is not actually a disease -- it is part of the normal  aging
of the spine.  A large part of the confusion is the term "degenerative
disc disease"  which  sounds  like  a  progressive,  very  threatening
condition.  T his condition is not strictly degenerative  and  is  not
really a disease.  The term degenerative implies to  most  people  the
symptoms will get worse with  age.   The  term  applies  to  the  disc
degenerating, but does not apply to the symptoms.  While  it  is  true
the disc degeneration is likely to progress over time,  the  low  back
pain from degenerative disc disease usually does not get worse and  in
fact usually gets better over time.

The Standard Form (SF) 600 dated, 28 Feb 05 is evidence  that  he  was
worldwide qualified.  He understands that a  nondisability  retirement
requires 20 years of active service to be eligible for  a  certificate
and had he not been erroneously processed for an  MEB  he  would  have
completed 20 years or more of service; and would  have  been  eligible
for retirement as of 1 Apr 09.

He further requests the  Board  take  into  account  the  overwhelming
amount of stress and anxiety he felt during the 05E7 test cycle as his
career was in jeopardy.  If the Board finds an error or injustice  has
occurred, he requests supplemental promotion  consideration  for  test
cycles 05E7, 06E7, 07E7, 08E7, 09E7, 10E7, and  11E7;  and   any  back
pay, benefits and entitlements as of the effective date  of  promotion
if approved.

Had he not been erroneously processed for an MEB, he would have served
his country until his high year tenure of his highest grade held.   If
the PCM who initiated the MEB stated that he was  worldwide  qualified
and could perform his duties, and his commander also  stated  that  he
could  perform  his  duties,  why  was  he  recommended  for  an  MEB.
Determination of fitness for duty  is  based  on  many  factors  which
include, but are not limited to, a service member's duty  limitations,
required work-around, medical care needs  and  risks,  and  deployment
restrictions.  There  was  no  medical  evidence  at  that  time  that
suggested he was unable to perform the military duties  of  his  grade
and AFSC.  There was no medical evidence that supported his  condition
was of sufficient severity to render an MEB.   His  condition  of  low
back pain is a normal part of aging.

The AF Advisors did not reference any  governing  directives  or  AFIs
that conflict with the evidence he  provided  that  substantiates  his
allegations of errors and injustices.  Although he signed  and  agreed
to the FPEB recommendation, he was under the assumption  the  MEB  was
processed in good faith.  Had he known of the errors and injustices at
the  time  of  the  MEB,  he  would  not  have  agreed  to  the   FPEB
recommendation of medical retirement.

The applicant’s complete response, with attachments, is at Exhibit H.

________________________________________________________________

FINDINGS AND CONCLUSIONS OF THE BOARD

1.  The application was not filed within three years after the alleged
error or injustice was discovered, or could have been  discovered,  as
required by Section 1552, Title 10, United States Code (10 USC  1552),
and Air Force Instruction 36-2603.  Although the applicant  asserts  a
date of discovery  which  would,  if  correct,  make  the  application
timely, the essential facts which gave rise to  the  application  were
known to  applicant  long  before  the  asserted  date  of  discovery.
Knowledge of those facts constituted the date  of  discovery  and  the
beginning of the three-year period for filing.  Thus  the  application
is untimely.

2.  Paragraph b of 10 USC 1552  permits  us,  in  our  discretion,  to
excuse untimely filing in the interest of justice.  We have  carefully
reviewed applicant's submission and the entire record, and we  do  not
find a  sufficient  basis  to  excuse  the  untimely  filing  of  this
application.  The applicant has not shown a plausible reason for delay
in filing, and we are not persuaded that the record raises  issues  of
error or injustice which require resolution  on  the  merits  at  this
time.  Accordingly, we conclude that it would not be in  the  interest
of justice to excuse the untimely filing of the 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 AFBCMR Docket Number BC-
2010-02438 in Executive Session on 25 May 11, under the provisions  of
AFI 36-2603:

      , Panel Chair
      , Member
      , Member

The following documentary evidence pertaining to AFBCMR Docket  Number
BC-2010-02438 was considered:

   Exhibit A.  DD Form 149, dated 13 Jun 10, w/atchs.
   Exhibit B.  Applicant's Master Military Records.
   Exhibit C.  Letter, AFPC/DPSD, dated 18 Aug 10.
   Exhibit D.  Letter, AFPC/DPSOR, dated 1 Sep 10.
   Exhibit E.  Letters AFPC/DPSOE, dated 30 Sep 10
   Exhibit F.  Letter, AFPC/JA, dated 22 Feb 11.
   Exhibit G.  Letter, SAF/MRBR, dated 4 Mar 11.
   Exhibit H.  Letter, Applicant, dated 8 Mar 11, w/atchs.





                                        Panel Chair