RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2007-02793
		INDEX CODE:  108.00
		
		COUNSEL:  
		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His disability rating be increased from 20 percent (discharge with severance pay), to either 50 percent or 100 percent and that he be placed on the Temporary Disability Retired List (TDRL).

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APPLICANT CONTENDS THAT:

The Air Force Informal Physical Evaluation Board’s (IPEB) determination that he be medically discharged from the Air Force with a 20 percent disability rating was in error because the Department of Veterans Affairs (DVA) subsequently awarded him a 90 percent disability rating for his service-connected disabilities.  

Based on the provided documentation and his medical records with the DVA, he is requesting a revision in his rating by the evaluation board on 1 Jun 06, to reflect his current medical condition for his service-related injuries which have and continue to worsen since his discharge.

In support of his request, applicant provided a personal statement, AF Form 356, Findings and Recommended Disposition of USAF Physical Evaluation Board, a DVA decision on his claim for service-connected compensation, a letter from the Disabled American Veterans National Service Office, and a Letter from Senator Whitehouse informing applicant of his benefits.

The applicant's complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

On 1 Jun 06, the IPEB found the applicant to have a medical condition rendering him unfit for further military service and rated his disability at 20 percent.  The applicant was diagnosed at that time with “Back Pain associated with L5-S1 disc disease, status post discectomy.”  The applicant waived his right to challenge this finding before the Formal Physical Evaluation Board (FPEB) and accepted the IPEB’s decision.  The applicant was discharged from the Air Force with severance pay on 7 Aug 06, with 9 years, 8 months, and 25 days of active military service.

On 26 Feb 07, the DVA awarded the applicant an overall disability rating of 90 percent for various service-connected medical conditions.

Additional relevant facts can be found in the advisory opinions prepared by the Air Force offices of primary responsibility.

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AIR FORCE EVALUATION:

HQ AFPC/DPPD recommends denial of the applicant’s requests.  The preponderance of evidence reflects that no error or injustice occurred during the disability process.  The Department of Defense (DoD) and the DVA disability evaluation systems operate under separate laws.  Under Title 10, United States Code (USC), Physical Evaluation Boards must determine if a member’s condition renders them unfit for continued military service relating to their office, grade, rank or rating.  The fact that a person may have a medical condition does not mean that the condition is unfitting for continued military service.  To be unfitting, the condition must be such that it alone precludes the member from fulfilling their military duties.  If the board renders a finding of unfit, the law provides appropriate compensation due to the premature termination of their career.  Further, it must be noted the USAF disability boards must rate disabilities based on the member’s condition at the time of evaluation; in essence a snapshot of their condition at that time.  It is the charge of the DVA to pick up where the AF must, by law, leave off.  Under Title 38, the DVA may rate any service-connected condition based upon future employability or reevaluate based on changes in the severity of a condition.  This often results in different ratings by the two agencies.  

The complete DPPD evaluation is at Exhibit C.

HQ AFPC/JA recommends the application be denied.  JA states there is no legal or equitable basis to change the IPEB’s findings in this case as the applicant has been compensated appropriately by both the Air Force and DVA under the statutes and regulations governing their respective disability systems.  To obtain relief, the applicant must show by a preponderance of the evidence there exists some error or injustice warranting corrective action by the board.  The United States Claims Court has repeatedly defined an injustice in the context of BCMR cases as “treatment by military authorities that shocks the sense of justice.”  The applicant’s requests to have his disability rating increased and to be retired from the Air Force rely primarily upon the DVA’s disability ratings made subsequent to his discharge.  

The regulation governing the Air Force’s disability evaluation system, AFI 36-3212, stresses the “prime difference between the two systems is that the VA may rate any service-connected condition without regard to fitness, whereas the Air Force may rate only those conditions which make a member unfit for continued military service.”  As the IPEB found the applicant unfit for further military duty solely because of his back condition, assigning disability ratings for other conditions such as a depressive disorder and hammer toes – as the DVA did in accordance with its own guidelines – is not authorized under the governing DoD and Air Force disability regulations.  Accordingly, the DVA’s rating is not controlling over the Air Force and the DVA’s determination alone is insufficient to overcome the IPEB’s original finding.

The applicant also seeks to have his “status of discharge” be amended “to show TDRL.”  Considering the applicant’s other request to have his disability rating increased to at least 50 percent, it is reasonable to conclude that what he actually wants in this regard is placement on the Permanent Disability Retirement List (PDRL).  In this instance, there is no dispute that the applicant’s back condition is permanent in nature.  As such, placing him on the TDRL would be inappropriate in light of the parameters for its use.  The applicant is also ineligible for TDRL as the disability rating assigned for his sole unfitting medical condition falls below the 30 percent threshold required for members with less than 20 years of credible service to receive a permanent medical retirement.  For those Airmen with less than 20 years of creditable service and a disability rating below 30 percent – as in the applicant’s case – discharge from the Air Force with severance pay is the only authorized entitlement under the military’s disability evaluation system.   

The complete AFPC/JA evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 26 Oct 07, copies of the Air Force evaluations were forwarded to the applicant for review and comment within 30 days.  To date, a response has not been received.

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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.

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-2007-02793 in Executive Session on 21 Dec 07, under the provisions of AFI 36-2603:

The following documentary evidence pertaining to Docket Number BC-2007-02793 was considered:

    Exhibit A.  DD Form 149, dated 20 Aug 07, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter AFPC/DPPD, dated 27 Sep 07.
    Exhibit D.  Letter, AFPC/JA, dated 24 Oct 07.
    Exhibit E.  Letter, SAF/MRBR, dated 26 Oct 07.