RECORD OF PROCEEDINGS 
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2002-02601
		INDEX NUMBER:  108.00
	XXXXXXXXXXXXXX	COUNSEL:  None

	XXX-XX-XXXX	HEARING DESIRED:  No

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APPLICANT REQUESTS THAT:

His disability discharge be changed to a medical retirement.

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APPLICANT CONTENDS THAT:

He was misinformed regarding his options when he was discharged.  He was not told that he could retire and still get disability.  He was not told that severance pay would be considered advance disability pay.  He would have chosen retirement vice disability discharge.

The applicant’s complete submission is at Exhibit A.

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STATEMENT OF FACTS:

The applicant entered active duty in the Air Force on 17 Mar 78.  On 26 Sep 88, the applicant was recommended for a medical evaluation board (MEB) based on recurring knee problems.  On    28 Oct 99, the applicant was evaluated by an MEB for the purpose of determining if he was fit to continue on active duty.  The MEB recommended that the applicant be referred to a physical evaluation board (PEB).  On 7 Nov 88, the PEB found that the applicant was unfit for military service because of physical disability and recommended that he be discharged with severance pay based on a 20 percent disability rating.  On 16 Nov 88, the applicant agreed with the findings and recommended disposition.  The applicant was discharged on 8 Dec 88 with severance pay.

Additional pertinent facts relevant to this application are contained in the evaluations prepared by the appropriate offices of the Air Force found at Exhibits C and D.

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AIR FORCE EVALUATION:

The BCMR medical Consultant recommends denial of the applicant’s request.  The applicant was disability discharged with severance pay for service aggravation of an existing prior to service (EPTS) recurrent patellar subluxation.  The applicant had undergone arthroscopic knee surgery for his condition for both knees, but the left knee did not improve.  The applicant was properly evaluated and rated by the PEB.  Although his condition existed prior to service, no EPTS factor was subtracted in arriving at his disability rating.  There is no evidence that he was not properly counseled regarding the disability process.

The complete evaluation is at Exhibit C.

AFPC/DPPD recommends denial of the applicant’s request.  Disability processing records show the applicant was referred to an MEB and the results forwarded to the Informal Physical Evaluation Board (IPEB) for their assessment.  The Board concluded his persistent left patellar subluxation status post arthroscopic surgery to have existed prior to service; however, the EPTS factor was unascertainable.  The medical condition of his right patellofemoral arthrosis was also considered but determined as EPTS without service aggravation.  As a result of their evaluation, the IPEB recommended he be discharged with entitlement to severance pay with a 20 percent disability rating.  Records show he was counseled on the legal results of the findings and recommended disposition of the IPEB, the applicable case processing procedures and appeal rights, and concurred with the findings and recommended disposition of the IPEB.  Consequently, officials within the Office of the Secretary of the Air Force directed discharge with severance pay in accordance with Title 10, United States Code, Section 1203.  They cannot confirm or deny the applicant’s claims of miscounselling.  Their observation is that the disability briefings are routinely conducted appropriately with the correct information provided to the military member.

Unfitting medical conditions rated at 30 percent or higher by the PEB during the MEB process, are eligible for a disability retirement under disability laws and policy.  Those medical conditions rated less than 30 percent are authorized discharge with severance pay as in the applicant’s case.

The complete evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his response to the Air Force evaluations applicant states that he was never told that he had a choice of accepting severance and disability pay or medical retirement because of the 30% total rating.  He was also not told that he could appeal the decision of the board.  He told his counselor that he wanted to cross-train into a field that would be less stressful on his knees, but was told that once the decision was made to discharge him there was nothing more that he could do.  He found out later in life that there was probably a lot more that he could have done.  He states that the statement attributed to him, “Don’t seem to be having any troubles” seems ludicrous, since he was still on crutches months after the surgery, was in pain during physical rehab, and was still having major difficulties standing for prolonged periods and climbing stairs.

The applicant’s complete response 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 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 BC-2002-02601 in Executive Session on 7 May 2003, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 7 Aug 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, BCMR Medical Consultant,
                dated 10 Feb 03.
    Exhibit D.  Memorandum, AFPC/DPPD, dated 12 Mar 03.
    Exhibit E.  Letter, SAF/MRBR, dated 21 Mar 03.
    Exhibit F.  Letter, Applicant, dated 11 Apr 03.