RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-03095
		INDEX CODE:  108.02

		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

Her discharge be changed to a permanent disability retirement.
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APPLICANT CONTENDS THAT:

She should have received a medical discharge.  Her condition is progressively getting worse and her medical care costs are skyrocketing.

In support of her request, the applicant submits a copy of her DD Form 214 and DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States).  The applicant’s complete submission, with attachments, is at Exhibit A.
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STATEMENT OF FACTS:

The applicant’s Total Active Federal Military Service Date (TAFMSD) is 2 Jun 1992.  She was progressively promoted to the grade of senior airman (E-4), with an effective date and date of rank of 2 June 1995.

A Medical Evaluation Board (MEB) was convened on 20 January 2000 and the results referred to the Informal Physical Evaluation Board (IPEB).

On 1 February 2000, an Informal Physical Evaluation Board (IPEB) convened and found her chronic back pain with secondary tension headaches and depression as unfitting for continued military service and recommended she be discharged with entitlement to severance pay, with a compensable disability rating of ten (10) percent.  Her medical conditions for intermittent migraine headaches, Gestational Diabetes Mellitus, and Asthma (considered to have existed prior to service) were also considered, but were not determined to be unfitting at the time of her MEB/PEB.  On 4 February 2000, the applicant disagreed with the findings and recommended disposition of the IPEB and requested a Formal PEB (FPEB).

On 23 February 2000, the applicant appeared before the FPEB, with counsel.  The FPEB confirmed the findings and recommendation of the IPEB and recommended she be discharged with entitlement to severance pay, with a compensable disability rating of ten (10) percent.  The applicant disagreed with the findings and recommended disposition of the FPEB and elected to submit a written rebuttal to the Secretary of the Air Force Personnel Council (SAFPC).

On 6 March 2000, the applicant submitted her rebuttal letter to SAFPC requesting a disability retirement, with a compensable disability rating of 40 percent.  On 16 March 2000, following an extensive review of the medical evidence, SAFPC concurred with the recommendations of the IPEB and FPEB and directed she be discharged with severance pay, with a compensable disability rating of ten (10) percent.

The Department of Veterans Affairs (DVA) records reflect that the applicant was granted a combined disability rating of 60 percent.
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AIR FORCE EVALUATIONS:

The BCMR Medical Consultant summarized the information contained in the applicant’s personnel and medical records and is of the opinion that the preponderance of the evidence of the record supports a disability rating of 20 percent.  He concurs with the Physical Evaluation Boards that the evidence does not support a rating that would qualify for disability retirement.  Action and disposition in this case are proper and equitable reflecting compliance with Air Force directives that implement the law.  Details of his evaluation are at Exhibit C.

HQ AFPC/DPPD, after having reviewed the preponderance of evidence and considering the BCMR Medical Consultant’s recommendation, forwarded applicant’s case file to the Informal Physical Evaluation Board (IPEB) for further consideration.  While there is room for different interpretations of the fairly limited criteria for applicant’s condition, the IPEB opines this case clearly falls within the criteria for the 10 percent disability rating, consistent with the previous decision rendered at multiple levels of highly experienced boards.  DPPD recommends denial of the applicant’s request in that the IPEB is not thoroughly convinced the overturning of the initial disability rating from 10 to 20 percent is fully justified, despite the BCMR Medical Consultant’s recommendation.  DPPD states that the consensus not to award a disability retirement was agreed upon by all reviewing officials.  DPPD totally agrees that medical retirement should not be granted under any circumstances.  A complete copy of this evaluation is appended at Exhibit D.
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APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

Copies of the Air Force evaluations were forwarded to applicant on 5 March 2004 for review and response.  As of this date, no response has been received by this office (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 to warrant partial relief.  We note that HQ AFPC/DPPD disagreed with the BCMR Medical Consultant’s recommendation for a 20 percent disability rating.  However, after careful consideration, we conclude that the BCMR Medical Consultant’s recommendation and rationale appear to be supported by the evidence of record.  While the applicant may now have a higher disability rating by the Department of Veterans Affairs (DVA), the Air Force disability system stipulates that the percentage must be based on a member’s condition at the time of separation.  We are not persuaded by the available evidence that the applicant’s condition at the time of her separation met the criteria for award of a higher compensable rating.  The BCMR Medical Consultant advises that, based on the preponderance of the evidence of record, the applicant’s combined back pain and radiculopathy warrants a combined rating of 20 percent.  Therefore, in order to preclude a possible injustice, we agree with the BCMR Medical Consultant’s suggested relief and recommend the applicant’s records be corrected to the extent indicated below.
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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 combined compensable percentage for her unfitting ratable conditions was 20 percent, rather than 10 percent.
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The following members of the Board considered this application in Executive Session on 22 April 2004, under the provisions of AFI 36-2603:

All members voted to correct the records, as recommended.  The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2003-03095.

   Exhibit A.  DD Form 149, dated 10 Sep 03, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, BCMR Medical Consultant, dated 30 Jan 04.
   Exhibit D.  Letter, HQ AFPC/DPPD, dated 27 Feb 04, w/atch.
   Exhibit E.  Letter, SAF/MRBR, dated 5 Mar 04.

                                   

AFBCMR BC-2003-03095

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 APPLICANT be corrected to show that the combined compensable percentage for her unfitting ratable conditions was 20 percent, rather than 10 percent.