RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  02-01087
		INDEX NUMBER:  108.00
	XXXXXXXXXXXXXX	COUNSEL:  None

	XXX-XX-XXXX	HEARING DESIRED:  No

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APPLICANT REQUESTS THAT:

His Air Force disability rating of 60% be changed to 100% to agree with the 100% rating he has been awarded by Department of Veterans Affairs (DVA) and to allow him to withdraw from the Survivor Benefit Plan (SBP).

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APPLICANT CONTENDS THAT:

The reasons the applicant believes the records to be in error or unjust and the evidence submitted in support of the appeal are at Exhibit A.

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STATEMENT OF FACTS:

The relevant facts pertaining to this application, extracted from the applicant’s military records, are contained in the memorandums prepared by the appropriate offices of the Air Force found at Exhibit C, D, and E.

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AIR FORCE EVALUATION:

The BCMR Medical Consultant recommends denial of the applicant’s request.

The applicant developed increasing problems with asthma while on active duty that ultimately resulted in permanent disability retirement in 1966 with a disability rating of 60%.  The applicant believes this rating is incorrect because the VA, in 2000, evaluated his disability at 100%.

The differences in the two ratings can be explained by the differences between Title 10, U.S.C., which is the statute that charges the Service Secretaries with maintaining a fit and vital force, and Title 38, U.S.C., which is the statute that governs the DVA compensation system.  When an individual is found unfit for military service, the Service Secretaries are required by law to rate the condition based upon the degree of disability at the time of permanent disposition.  No change in military disability ratings can occur after permanent disposition under the rules of the military disability system, even though the condition may become better or worse.  However, Title 38, U.S.C. authorizes the VA to increase or decrease the VA compensation ratings based on the individual’s condition during anytime they are evaluated.

Evidence of record establishes beyond all reasonable doubt that the applicant was properly evaluated and rated at the time of his permanent disability retirement.

The complete evaluation is at Exhibit C.

AFPC/DPPD recommended denial of the applicant’s request.

It appears that the applicant’s request for an increase in his disability rating is primarily supported from his DVA rating decision.  It is essential that he understand the difference between Titles 10 and 38 of the U.S.C.  Having completed their examination of the files, they found no reason to reflect an increase in his original disability rating.  It was also determined that the applicant was treated fairly throughout the military disability evaluation process, that he was properly rated under federal disability guidelines, and that he was afforded a full and fair hearing as required under military disability laws and policy.

The complete evaluation is at Exhibit D.

AFPC/DPPTR addressed the issue of the applicant’s payment of SBP premiums.  They recommend denial of the applicant’s request regarding this issue.

Public Law (PL) 105-261 authorized the paid up provision for members who have paid into both the SBP and the Retired Serviceman’s Family Protection Plan (RSFPP) for 360 months and attained age 70.  However, the effective date is not until 1 Oct 08.

PL 96-402, 9 Oct 80, permits members who have been rated 100 percent disabled by the DVA for five continuous years immediately following retirement, or ten consecutive years if rated 100 percent after retirement, to withdraw from SBP.  

PL 105-85 (18 Nov 97) authorized members, who were retired more than two years as of 17 May 98, a one-year window during which they could arbitrarily disenroll from the SBP.

Even though the paid-up provision was signed into law, it will not become effective until 1 Oct 08.  Unless the applicant maintains a 100 percent VA rating for ten continuous years, he is ineligible to withdraw from the plan under PL 96-402.  The applicant had an opportunity to disenroll from the SBP under PL 105-85, but there is no evidence he submitted a request during the permitted time period.
The complete evaluation is at Exhibit E.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant responded to the Air Force evaluations.  The applicant indicated that he desired to request an extension of time to build and document his case.  The applicant was advised by letter on 30 Sep 02 that an extension of time could not be granted; however, he could request that his case be temporarily withdrawn.  The applicant was advised to respond within 20 days if he desired to withdraw his case or it would be processed.  To date, a response has not been received.

In his response to the Air Force evaluations, the applicant provided a list of reasons of why the decision on his disability should be reconsidered.  He indicated that he has medical evidence and doctor reports that he was not properly evaluated in the Air Force for his subgastrectomy, vagotomy, hiatal hernia and depression.

The applicant’s complete response is at Exhibit G.

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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 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 offices of primary responsibility and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

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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 02-01087 in Executive Session on 23 January 2003, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 21 Mar 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, BCMR Medical Consultant, 
                dated 18 Jul 02.
    Exhibit D.  Memorandum, AFPC/DPPD, dated 7 Aug 02.
    Exhibit E.  Memorandum, AFPC/DPPTR, dated 21 Aug 02.
    Exhibit F.  Letter, SAF/MIBR, dated 23 Aug 02.
    Exhibit G.  Letter, Applicant, dated 18 Aug 02.