RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: 01-03585

	 	COUNSEL:  NONE

	 	HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

Her disability percentage of 60% be increased to 100%.

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THE APPLICANT CONTENDS THAT:

She was denied an opportunity to appeal the decision of the Formal Physical Evaluation Board (FPEB) that convened on 17 October 2001.

The applicant states that on 18 October 2001 she indicated her intent to submit an appeal to the Air Force Personnel Board (AFPB) via the formal board.  After a week of attempts to produce a written rebuttal, she realized she was physically incapable of doing so and was authorized to submit an audiocassette submission.  However, since she was awaiting her lawyer’s approval and given the current mail restrictions due to the anthrax threats, her appeal package arrived a few days after her 1 November 2001 suspense for submitting her rebuttal.  In addition, since her attorney did not notify his staff that her rebuttal tape was on its way, his staff submitted notification to the AFPB that no rebuttal was received.  In view of this, her case was processed under the FPEB decision to temporarily retire her with a 60% disability rating.  She is distraught that the Air Force Personnel Center (AFPC) would not make an exception in her case since there were obviously extenuating circumstances to her deadline not being met.

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

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STATEMENT OF FACTS:

On 19 April 2001, a Medical Evaluation Board (MEB) convened to determine whether the applicant should be continued on active duty because of persistent neurological and/or emotional conditions which, despite adequate treatment, interfered with her effective performance of duties.  Based on the diagnoses of cervicalgia with radiculopathy, degenerative disc disease, ulnar neuropathy, headache, depression, demylelination, and chronic pain syndrome, they referred her to an Informal Physical Evaluation Board (IPEB).

On 10 September 2001, an IPEB convened and determined that based on the diagnoses of multiple sclerosis associated with cervicalgia with ulnar radiculopathy, depression, and headaches of mixed etiology, VASRD 8018-8105, she be permanently retired with a 50% disability rating.  The IPEB indicated that the applicant suffered from a variety of conditions which were manifested by overlapping symptoms, any of which singularly would probably not prevent her from performing duties commensurate with her office, grade, rank, or rating, but jointly rendered her unfit for further military duty.  The applicant did not agree with the findings and recommendations of the IPEB and demanded a formal hearing before a Formal Physical Evaluation Board (FPEB).

On 17 October 2001, a FPEB convened and based on the diagnoses of multiple sclerosis associated with cervicalgia with ulnar radiculopathy, depression, and headaches of mixed etiology, VASRD 8018-8105, rated at 50%, and fibromyalgia, VASRD 5025, rated at 20%, recommended she be temporarily retired with a 60% disability rating.  The FPEB noted that the current compensable rating reflected great benefit of doubt given to the applicant because the depressive symptoms so overlapped the other symptoms.  The applicant did not agree with the findings and recommendation of the FPEB and indicated her desire to submit a rebuttal.  The applicant had until 1 November 2001 to submit her rebuttal.  On 2 November 2001, AFPC/DPPD indicated that no rebuttal was received by close of business 1 November 2001.

Effective 25 December 2001, the applicant was placed on the Temporary Disability Retired List (TDRL) with a compensable disability percentage of 60%.  The applicant completed 18 years, 3 months, and 24 days of active service.

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AIR FORCE EVALUATIONS:

The BCMR Medical Consultant recommends granting her present request for further consideration by the AFPB while she is receiving her current 60% disability.  The BCMR Medical Consultant states, in part, that there is no question the applicant suffers from several debilitating illnesses, and it is conceivable that her failure to submit her appeal to the FPEB in their allotted time frame could have been contributed to by her physical condition.  The decision of the AFPB should determine whether or not she continues on the TDRL at her present level or at some other disability level.

The BCMR Medical Consultant evaluation is at Exhibit C.

AFPC/DPPD recommends the application be denied.  AFPC/DPPD states, in part, that they are unable to rationalize or justify why the applicant’s disability records should be forwarded to the Secretary of the Air Force Personnel Board (SAFPB) for final adjudication at this time since her medical condition has been found unstable and she will require additional re-evaluation prior to finalization of her case.  The most logical and appropriate action at this time is to keep her on the TDRL until her next medical re-evaluation in March 2003.  This will allow her medical condition a period of stabilization at which time she will benefit from another medical evaluation along with the advantage of another full disability process (i.e., IPEB, FPEB, and SAFPC, if necessary).  Based on the timelines determined following her appearance before the FPEB, it appears she was delinquent in meeting the established suspense date for providing her rebuttal information.

The AFPC/DPPD evaluation is at Exhibit D.

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APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS:

The applicant states, in essence that had she had a time card mentality or been in the security forces career field where they are used to performing 12-hour shifts with limited resources, she would have earned a 20-year retirement.  However, the majority of her responsibilities were in protocol which required her to work 60-hour weeks (up at 3:00 am and in bed by 1:00 am).  She gave everything she had to the Air Force and never complained.  Furthermore, she never completed an AF Form 90, Assignment Selection Preference, as all of her assignments were received via the telephone.  She never had a regular job in the Air Force.  Her condition is such that she does not know from day to day how she will feel.  

In further support of her appeal, the applicant submits an audio submission and copies of her phone bills.

Applicant’s complete response, with attachments, is at Exhibit F.

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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 timely filed.

3.  Sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice to warrant correcting the applicant’s records to reflect that she timely filed an appeal of the FPEB’s findings and recommendations and her appeal was forwarded to the Air Force Personnel Board (AFPB) for consideration.  In this respect, we note that the applicant did not agree with the recommendation of an FPEB to place her on the TDRL, with a 60% disability rating, and indicated her desire to submit a rebuttal.  However, due to the delay in receiving her lawyer’s approval of her response and given the current mail restrictions due to the anthrax threats, her appeal package arrived late and was not considered.  The BCMR Medical Consultant states that there is no question the applicant suffers from several debilitating illnesses, and it is conceivable that her failure to submit her appeal to the FPEB in their allotted time frame could have been contributed by her physical condition.  As such, the BCMR Medical Consultant recommends further consideration by the AFPB to determined whether she continues on the TDRL at her present level or at some other disability level.  We agree.  While the applicant requests that the percentage of her disability be upgraded to 100%, in view of the comments of the BCMR Medical Consultant, we recommend her response to the FPEB be forwarded to the Air Force Personnel Board for consideration and the results be forwarded to the Board prior to rendering a final decision on her request.

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(s) involved.  Therefore, the request for a hearing is not favorably considered.

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THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that the attached appeal to the findings and recommendation of the Formal Physical Evaluation Board (FPEB) be forwarded to the Air Force Personnel Board for consideration in accordance with AFI 36-3212 and the findings of the AFPB be forwarded to the Air Force Board for Correction of Military Records at the earliest practicable date so that all necessary and appropriate actions may be completed.

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The following members of the Board considered Docket Number 01-03585 in Executive Session on 16 April 2002, under the provisions of AFI 36-2603:

				Vice Chair
				Member
				Member

All members voted to correct the records, as recommended.  The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 11 Dec 01, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, BCMR Medical Consultant, dated 16 Jan 02.
    Exhibit D.  Letter, AFPC/DPPD, dated 28 Feb 02.
	Exhibit E.  Letter, SAF/MRBR, dated 1 Mar 02.
	Exhibit F.  Applicant’s Response, undated, w/atchs.

                                   

AFBCMR 01-03585

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 , be corrected to show that the attached appeal to the findings and recommendation of the Formal Physical Evaluation Board (FPEB) be forwarded to the Air Force Personnel Board for consideration in accordance with AFI 36-3212 and the findings of the AFPB be forwarded to the Air Force Board for Correction of Military Records at the earliest practicable date so that all necessary and appropriate actions may be completed.

                                                                            
Attachment
Audio Rebuttal Submission