RECORD OF PROCEEDINGS 
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2004-00052
		INDEX NUMBER: 128.08

	XXXXXXX	COUNSEL:  NONE

	XXXXXXX	HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

He be reimbursed for the severance pay he lost as a result of his disability rating of 22% being decreased to 10%, and his severance pay be calculated based on the rank of airman (E-2).

_________________________________________________________________

THE APPLICANT CONTENDS THAT:

Prior to his enlistment, he never had knee problems and his condition did not exist prior to his military service.  The statements in his military medical records are false and untrue.  He has never stated to any doctor or military official that he experienced knee problems prior to entering the military.  Therefore, the 10% reduction of his 22% disability rating is unwarranted.

In support of the appeal, applicant submits extracts from his service medical records and a Department of Veterans Affairs (DVA) rating decision.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant entered active duty in the Air Force on 4 January 1996 and sought care for bilateral knee pain after beginning technical training.  The applicant was referred to a Medical Evaluation Board (MEB) that determined he should be referred to a Physical Evaluation Board (PEB) for bilateral anterior knee pain/patellofemoral syndrome, refractory to conservative therapy.  On 12 June 1996, applicant appeared before an Informal PEB (IPEB).  The IPEB sustained the diagnosis of the MEB and recommended the applicant be discharged with severance pay.  The IPEB rated his condition at 20%, and applied a bilateral factor for a total rating of 22%.  However, the rating was reduced by 10% based on the existing prior to service (EPTS) condition.  The applicant agreed with the IPEB findings and recommendation.  He was discharged on 16 August 1996, under the provisions of AFI 36-3212, Disability, Severance Pay, in the grade of airman basic (E-1).

The DVA denied his request for service connection for patellofemoral syndrome of his knees on 2 December 1996.

_________________________________________________________________

AIR FORCE EVALUATION:

The BCMR Medical Consultant recommends the application be denied and states, in part, that at the time, the applicant did not contest the IPEB’s decision to decrease the 22% disability rating to 10% because his service medical records indicated the condition existed prior to service.  Further, the applicant signed a Veterans Application for Compensation Pension that indicated he had a history of similar episodes in the past, not as incapacitating and not disclosed upon enlistment (EPTS with service aggravation).  Regardless of the rating percentage, disability severance pay is calculated using a member’s base pay and years of service, not the disability rating.  Therefore, whether the disability rating is 10% or 30% has no effect on his eligibility for severance pay or the amount. 

The BCMR Medical Consultant evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

When the recruiter interviewed him he was asked whether he had knee troubles and he indicated no.  However, he did further explain that as a baseball catcher in 9th and 10th grade he occasionally experienced knee aches, but never sought medical attention.  At no time did he lie or not disclose any information.

Applicant’s complete response is at Exhibit D.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATIONS:

AFPC/DPPD recommends denial of the applicant’s request and states, in part, that the applicant was treated fairly throughout the Air Force disability evaluation process and there were no false statements made by the medical examiners in determining his EPTS.  Further, the preponderance of evidence reflects a fair and just decision was made in determining his disability rating and no injustice occurred.
The AFPC/DPPD evaluation is at Exhibit F.

AFPC/DPPPWB recommends denial of the applicant’s request to have his severance pay calculated based on the grade of airman.  AFPC/DPPPWB states, in part, that applicant’s promotion to airman was to be effective on 4 July 1996; however, he became ineligible for the promotion on 25 June 1996, when he was found physically unfit.  Applicant’s DD Form 214, Certificate of Release or Discharge from the Armed Forces, issued in conjunction with his 16 August 1996 discharge incorrectly reflects his grade as airman.
  
The AFPC/DPPPWB evaluation is at Exhibit G.

_________________________________________________________________

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATIONS:

Complete copies of the Air Force evaluations were forwarded to the applicant on 8 October 2004 for review and response within 30 days.  However, as of this date, this office has received no response.

_________________________________________________________________

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 a thorough review of the evidence of record and applicant’s submission, we are not persuaded that relief should be granted.  Applicant’s contentions are duly noted; however, we do not find these assertions, in and by themselves, sufficiently persuasive to override the rationale provided by the Air Force.  The offices of primary responsibility have adequately addressed applicant’s contentions and we agree with their opinions and adopt the rationale expressed as the basis for our decision that the applicant has failed to sustain his burden that he has suffered either an error or an injustice.  Hence, we find no compelling basis to recommend granting the relief sought.

_________________________________________________________________

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.

_________________________________________________________________

The following members of the Board considered Docket Number BC-2004-00052 in Executive Session on 2 November 2004, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 1 Feb 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, BCMR Medical Consultant, dated 20 May 04.
    Exhibit D.  Letter, Applicant, dated 1 Jun 04.
    Exhibit E.  Letter, AFBCMR, dated 19 Aug 04.
    Exhibit F.  Letter, AFPC/DPPD, dated 31 Aug 04.
    Exhibit G.  Letter, AFPC/DPPPWB, dated 24 Sep 04.
    Exhibit H.  Letter, SAF/MRBR, dated 8 Oct 04.

                                   Panel Chair