RECORD OF PROCEEDINGS 
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2003-01666
		INDEX NUMBER: 100.00

		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

Her disability discharge be changed to a disability retirement.

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THE APPLICANT CONTENDS THAT:

Since the Department of Veterans Affairs (DVA) has awarded her a combined compensable disability rating of 70%, she should have been medically retired, rather than discharged with severance pay.

At the time she was considered by the Medical Evaluation Board (MEB), her medical records consisted of three volumes covering all of her medical treatment during her eight years of service.

The Department of Veterans Affairs (DVA) originally awarded her a combined disability rating of 30%, effective the day after her discharge.  The DVA increased her disability rating to 40%, effective 18 September 2000, and increased it to 70% on 20 November 2000.

In support of the appeal, applicant submits her personal statement and copies of the DVA rating decisions.

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

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STATEMENT OF FACTS:

The applicant entered active duty in the Air Force on 6 February 1991.  In 1999, she was referred to an MEB that determined she was incapacitated for further military service because of chronic low back pain, endometriosis, ovarian cyst, and right hydronephrosis felt associated with the ovarian cyst.  It was recommended that she appear before a Physical Evaluation Board (PEB).  On 18 August 1999, an Informal PEB (IPEB) determined she was unfit and that her disability might be permanent.  She was diagnosed with chronic low back syndrome mechanical.  The IPEB also found her endometriosis and temporomandibular joint dysfunction pain could be unfitting but were not currently compensable or ratable.  The disability was rated at 10%.  She concurred with the IPEB findings and waived her right to a Formal PEB.  On 31 August 1999, the Secretary of the Air Force directed she be separated with disability severance pay.  She was subsequently discharged on 8 November 1999 under the authority of AFI 36-3212 (Disability, Severance Pay) after completing 8 years, 9 months, and 3 days of active service.

On 1 December 1999, the DVA awarded her a combined disability rating of 30%, for hydronephrosis, back strain, endometriosis, and sinusitis.  During the period 1 June through 31 August 2000, her rating was temporarily increased to 100% for convalescence from surgery to remove her right ovary.  During the month of September 2002, her rating was temporarily increased to 100% for convalescence from laparoscopic surgery for her service-connected hysterectomy and bilateral salpingo-oophorectomy, with history of endometriosis.  The DVA increased her disability rating to 70% on 1 October 2002.

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AIR FORCE EVALUATION:

The BCMR Medical Consultant recommends the application be denied and states, in part, that the IPEB noted that although none of the applicant’s individual conditions were unfitting, together they interfered with her ability to serve.  

The BCMR Medical Consultant also states the reason she could be found unfit for duty by the Air Force at a certain disability level and later be granted a higher service-connected disability by the DVA lies in understanding the differences between Title 10, U.S.C. and Title 38, U.S.C.  Under Title 10, U.S.C., the Service Secretaries are charged 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 member is unfit, the disability rating percentage is based upon the member’s condition at the time of permanent disposition.  Title 38, U.S.C., governs the DVA compensation system and allows for awarding of compensation ratings for conditions that are not unfitting for military service.

The BCMR Medical Consultant’s evaluation is at Exhibit C.
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APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

A complete copy of the Air Force evaluation was forwarded to the applicant on 19 December 2003 for review and response within 30 days.  However, as of this date, this office has received no response.
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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.  After thoroughly reviewing the evidence of record and noting the applicant’s contentions, we are not persuaded that she should be permanently retired by reason of physical disability.  We have reviewed her DVA rating decisions and find no evidence she was not properly rated at the time of her separation from the Air Force.  She concurred with the IPEB findings and recommendation that she be discharged with severance pay, with a 10% rating, and waived her right to a Formal PEB.  On 31 August 1999, the Secretary of the Air Force directed that she be separated with disability severance pay.  It appears she believes the DVA's decision to award her an overall combined compensable disability rating of 70% substantiates that her conditions should have been rated higher by the Air Force.  However, the DVA has rated her for conditions that were not unfitting for continued military service, to include a 50% rating for the removal of her uterus, both tubes, and ovaries after her discharge.  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 based on the degree of severity at the time of separation.  In the applicant's case, the Air Force determined that a rating of 10% was appropriate.  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-2003-01666 in Executive Session on 21 January 2004, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 7 May 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, BCMR Medical Consultant, dated 8 Dec 03.
    Exhibit D.  Letter, SAF/MRBR, dated 19 Dec 03.

                                   Panel Chair