RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBERS:  02-02545
		INDEX CODE 108.02
	  	COUNSEL:  None

	 	HEARING DESIRED:  No

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APPLICANT REQUESTS THAT:

He be afforded the opportunity to appeal before a Physical Evaluation Board (PEB) the decision to remove him from the Temporary Disability Retirement List (TDRL).

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APPLICANT CONTENDS THAT:

After his evaluation in April, he was advised he was being removed from the TDRL.  He indicated he wanted to appear before the PEB and appeal; however, the decision to remove him from the TDRL with severance pay was already made.

The applicant’s complete submission, with attachment, is at Exhibit A.

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STATEMENT OF FACTS:

During the period in question, the applicant was an aircraft maintenance journeyman with the 437th Aircraft Generation Squadron at Charleston AFB, SC.

He was injured in April 2000 when the landing gear from a small plane in which he was to deploy to Africa rolled across his foot and onto his lower right leg, resulting in fracture-dislocation. Stability was surgically restored to the foot; however, he was unable to return to full duties due to persistent foot pain.  Radiographic evaluation revealed evidence of early degenerative changes in the mid foot. On 30 Oct, the MEB referred the case to an Informal PEB (IPEB). On 7 Nov 00, the IPEB determined the applicant’s condition was not yet stable and placed him on the TDRL with a 30% rating for severe right foot pain secondary to traumatic fracture, right fibula and right foot status post open reduction. The applicant concurred.

As result, the applicant was placed on the TDRL in the grade of senior airman on 8 Jan 01 with a disability rating of 30%.

The applicant was evaluated on 25 Apr 02. Little change was found in that the applicant continued to have pain with excessive activities and was unable to run.  He was working in a job that did not require a significant amount of heavy labor or excessive walking. Prognosis was continued gradual progression of degenerative changes likely with time, perhaps necessitating further operative procedures for various combinations of midfoot and hindfoot arthrodesis. Recommendation was permanent separation due to inability to return to previous job duties.

The IPEB convened on 7 Jun 02 and recommended the applicant be discharged for status post traumatic right foot pain secondary to arthritis with severance pay at 20%.

On 10 Jun 02, HQ AFPC/DPPDS advised the applicant of the above recommendation and of his options to agree, disagree and request a formal hearing, or disagree and submit a written rebuttal in lieu of a formal hearing. A fact sheet was provided and the applicant was requested to return his election in time to arrive at HQ AFPC/DPPDS no later than 17 Jul 02. Apparently no response was received and, by letter date 24 Jul 02, HQ AFPC/DPPD advised the applicant that he had been removed from the TDRL and was to be discharged with severance pay.

An undated memorandum for the record (MFR) indicated the applicant called on 9 Aug 02 advising that in mid-July he had sent in his nonconcurrence and request to appear before the Formal PEB (FPEB). The MFR added that the revaluation disposition originally sent to him on 10 Jun 02 had a reply date of 15 Nov 00, which was obviously a typographical error. The applicant had called in July about the process to go to the FPEB and was told the reply date was a typo and the actual reply date was 17 Jul 02. At that time, he apparently indicated he was going to non-concur, however, no response was received as of 24 Jul 02 and his case was finalized. He was advised to submit an AFBCMR appeal.

On 13 Aug 02, the applicant was removed from the TDRL and discharged for physical disability.

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AIR FORCE EVALUATION:

HQ AFPC/DPPD provided their rationale for recommending denial.

A complete copy of the evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant asserts he returned the paperwork in the envelope he received, indicating he did not concur with the recommended findings and requesting an appearance before the FPEB. Based on the typographical error in the response date [15 Nov 00], he had no idea the paperwork would be filed on 24 Jul 02. When he returned from a trip, he received a letter advising him he had been removed from the TDRL. He immediately made inquiries and discovered his letter was never received. He wants to appeal the decision because doctors have advised him his foot will only get worse with time, and he is already showing arthritic signs. He uses his retired military card to access the base gym. A one-time severance pay is insufficient for an injury that will worsen and cause him pain for the rest of his life.

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

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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 error or injustice. After careful consideration, we believe the applicant may have been deprived of an opportunity to fully present his medical condition for appropriate resolution.  We understand timely processing is stressed by DOD instruction.  However, we are aware of cases wherein the disability evaluation process for some members was quite protracted on the part of the Air Force. As such, there have been exceptions to the preferred 40-day resolution criteria. The final outcome in this applicant’s case may still be discharge with 20% severance pay. On the other hand, he may possibly present evidence that could support continuation on the TDRL or a higher disability rating. Therefore, we believe any doubt should be resolved in this applicant’s favor by affording him the opportunity to nonconcur with the IPEB’s recommendations and to continue the disability evaluation process, and this we so recommend. 

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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:

	a.  He was not removed from the Temporary Duty Retirement List (TDRL) on 13 August 2002 and discharged for physical disability but on that date was continued on the TDRL pending review and final disposition by a FPEB.

	b.  Invitational travel orders be issued at the earliest practicable date by competent authority for the purpose of evaluation by a Formal Physical Evaluation Board (FPEB); that the results of the evaluation be forwarded to the Secretary of the Air Force Personnel Council for further adjudication and the case be finalized in accordance with AFI 36-3212 by the USAF Physical Disability Division (HQ AFPC/DPPD); and that all charges for the physical examination be waived.

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The following members of the Board considered this application in Executive Session on 17 December 2002 under the provisions of AFI 36-2603:

All members voted to correct the records, as recommended.  The following documentary evidence relating to AFBCMR Docket Number 02-02545 was considered:

   Exhibit A.  DD Form 149, dated 9 Aug 02, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/DPPD, dated 10 Sep 02.
   Exhibit D.  Letter, SAF/MRBR, dated 20 Sep 02.
   Exhibit E.  Letter, Applicant, dated 9 Oct 02, w/atchs.

                                   

AFBCMR 02-02545

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:

	     a.  He was not removed from the Temporary Duty Retirement List (TDRL) on 13 August 2002 and discharged for physical disability but on that date was continued on the TDRL pending review and final disposition by a FPEB.

	     b.  Invitational travel orders be issued at the earliest practicable date by competent authority for the purpose of evaluation by a Formal Physical Evaluation Board (FPEB); that the results of the evaluation be forwarded to the Secretary of the Air Force Personnel Council for further adjudication and the case be finalized in accordance with AFI 36-3212 by the USAF Physical Disability Division (HQ AFPC/DPPD); and that all charges for the physical examination be, and hereby are, waived.