RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: 01-02822

	 	COUNSEL: 

	 	HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

He be medically retired.

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THE APPLICANT CONTENDS THAT:

He should have been medically retired from the Air Force since the Department of Veterans Affairs (DVA) has awarded him a compensable disability rating of 40%.

The applicant states that he was never examined by XXXXX, although his name appears on all of his compensation reviews.  His discharge medical records indicated that he may have a heart murmur; however, no tests were ever taken.  Four years ago tests revealed that he has pericardial disease, aortic valve disorder, and refraction disorder.  He also had kidney tests performed seven years ago which revealed acute glomeruhonephritis, also a symptom reported during his discharge processing.

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

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STATEMENT OF FACTS:

On 30 July 1980, the applicant enlisted in the Regular Air Force.  He was progressively promoted to the grade of sergeant (E-4).

A Medical Evaluation Board (MEB) convened on 4 April 1985 for the purpose of determining the applicant’s fitness for continued service.  Based on the diagnosis of Discoid Lupus, the MEB recommended he be returned to duty.  The applicant did not agree with the recommendations and findings of the MEB and requested consideration by an Informal Physical Evaluation Board (IPEB).

On 20 August 1985, an IPEB convened and determined that based on the diagnosis of Discoid Lupus - exogenous obesity, which was not unfitting, he should be returned to duty.

The applicant underwent a separation physical on 22 January 1988 and was found qualified for continued service.

On 28 March 1988, the applicant was honorably discharged under the provisions of AFR 39-10 (Expiration Term of Service (ETS)) and was issued a Reenlistment Eligibility (RE) code of 3D.  He completed a total of 7 years, 7 months, and 12 days of active service.

On 22 August 2000, the DVA awarded the applicant a combined compensable disability rating of 40% (i.e., 30% - Lupus Erythematousus, 10% - Psoriasis Vulgaris, and 0% - Hearing Loss Left Ear).

Applicant’s Performance Profile follows:

        PERIOD ENDING              OVERALL EVALUATION

          29 Jul 81	          9
		29 Jul 82	          9
		29 Jul 83	          9
		29 Jul 84 w/Letter of Eval (LOR) 9
 		26 Nov 84	          9
		26 Nov 85 w/LOE	          9
		26 Nov 86	          9
		26 Nov 87	          9

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AIR FORCE EVALUATIONS:

The BCMR Medical Consultant recommends the application be denied. The BCMR Medical Consultant states, in part, that during the applicant’s years of service, he was treated for the conditions for which he now receives DVA compensation.  However, these conditions did not progress to the point of rendering him unfit for duty and his ETS discharge was appropriate without consideration in the disability evaluation system.  When first evaluated by the DVA in November 1988, he was allowed a 0% rating because his conditions were not considered incapacitating.  Only later, was he awarded compensation which totals 40%.

The BCMR Medical Consultant states that the reason why the applicant could be declared fit for duty or discharge by the Air Force and later granted a service-connected disability by the DVA lies in understanding the differences between Title 10, USC and Title 38, USC.  Title 10 USC is the federal statute that charges the service secretaries with maintaining a fit and vital force.  For an individual to be considered unfit for military service, there must be a medical condition so severe that it prevents performance of any work commensurate with rank and experience.  Once this determination is made, namely that the individual is unfit, disability rating percentage is based upon the member’s condition at the time of permanent disposition, and not upon possible future events.  In the applicant’s case, his conditions did not render him unfit for continued military service and ETS separation was appropriately recommended. Congress, very wisely, recognized that a person can acquire physical conditions that, although not unfitting at the time of separation, may later progress in severity and alter the individual’s lifestyle and future employability.  With this in mind, Title 38, USC which governs the DVA compensation system was written to allow awarding compensation ratings for conditions that are not unfitting for military service.  This is the reason why an individual can be considered fit for duty, and yet soon thereafter receive a compensation rating from the DVA for a service-connected, but militarily non-unfitting condition.

The BCMR Medical Consultant evaluation is at Exhibit C.

AFPC/DPPD recommends the application be denied. AFPC/DPPD states, in part, that a review of the applicant’s records indicate he was reasonably capable of performing his military duties right up until the time of his voluntary discharge.  This is confirmed in his performance reports and the review of his medical records in accordance with AFR 160-43 just prior to his separation.

The AFPC/DPPD evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

Complete copies of the Air Force evaluations were  forwarded to the applicant on 15 February 2002, for review and response.  As of this date, no response has been received by this office. 

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THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of probable error or injustice warranting the applicant's permanent retirement by reason of physical disability.   We note that on 20 August 1985, an Informal Physical Evaluation Board (IPEB) determined that based on the diagnosis of Discoid Lupus - exogenous obesity, which was not unfitting, the applicant should be returned to duty.  Furthermore, he underwent a separation physical on 22 January 1988 and was found qualified for continued service.  It appears the applicant believes the Department of Veterans Affairs (DVA) decision to award him a combined compensable disability rating of 40% (i.e., 30% - Lupus Erythematousus, 10% - Psoriasis Vulgaris, and 0% - Hearing Loss Left Ear), substantiates that his condition should have been rated higher by the Air Force.  However, we note that although the Air Force is required to rate disabilities in accordance with the DVA Schedule for Rating Disabilities, the DVA operates under a totally separate system with a different statutory basis.  In this respect, we note that the DVA rates for any and all service-connected conditions, to the degree they interfere with future employability, without consideration of fitness.  Whereas, the Air Force rates a member's disability at the time of separation.  In the applicant's case, the Air Force considered his conditions but did not find them unfitting.  Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting his request for a medical retirement.

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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.

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The following members of the Board considered Docket Number 01-02822 in Executive Session on 19 March 2002, under the provisions of AFI 36‑2603:
                Panel Chair
	            Member
	            Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 24 Sep 01, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, BCMR Medical Consultant, dated 17 Jan 02.
    Exhibit D.  Letter, AFPC/DPPD, dated 7 Feb 02.
	Exhibit E.  Letter, SAF/MRBR, dated 15 Feb 02.