RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2007-02816
		INDEX CODE:  108.02
 		COUNSEL:  NONE
		HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

His disability rating be changed from a 10 percent discharge with severance pay to the current 30 percent rating given by the Department of Veterans Affairs (DVA), and his records be changed to reflect permanent retirement rather than disability discharge. 

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APPLICANT CONTENDS THAT:

The DVA rated him at 20 percent disabled for lumbar strain with herniated disc and disc degeneration and 10 percent for hypertension. His total DVA disability rating is 30 percent.

The Air Force originally rated him at 20 percent but reduced it to 10 percent after he appealed the decision.  The original finding of 20 percent with the herniated L4-5 in disc protrusion of L5-S1 coupled with mildly abnormal antalgic gait, “a rating of 20 percent by itself,” would put him at 40 percent.

He feels a rating of 30 percent is fair and just compensation for an injury sustained while proudly serving his country.

In support of his request, the applicant provided a copy of his DVA disability decisional documents, a copy of his separation orders, a copy of his discharge notification letter, and a copy of his DD Form 214, Certificate of Release or Discharge from Active Duty.

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

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STATEMENT OF FACTS:

The applicant entered the Air Force Reserves on 22 Aug 05 and served for a period of 11 months and 27 days.  He had 7 years,   1 month, and 16 days of prior active service.

On 5 Apr 07, the Informal Physical Evaluation Board (IPEB) reviewed his case and recommended discharge with severance pay with a disability rating of 20 percent.

He appealed the decision of the IPEB and appeared before the Formal Physical Evaluation Board (FPEB) with counsel on 16 May 07.

The FPEB reviewed the evidence presented and recommended discharge with severance pay with a disability rating of 10 percent.

The applicant appealed to the Secretary of the Air Force Personnel Council (SAFPC) to increase his rating; however, SAFPC concurred with the recommended disposition of the FPEB and upheld the recommendation for discharge with severance pay with a disability rating of 10 percent.

The applicant was honorably discharged on 18 Aug 06. 

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AIR FORCE EVALUATION:

AFPC/DPPD recommends denial. DPPD states the Department of Defense and the DVA operate under separate laws. Under Title 10, U.S.C., 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.  If the board renders a finding of unfit, the law provides appropriate compensation due to the premature termination of their career.  It is the charge of the DVA to pickup where the Air Force must, by law, leave off.  Under Title 38 U.S.C., the DVA may rate any service-connected condition 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 AFPC/DPPD complete evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 19 Oct 07 for review and comment within 30 days.  As of this date, this office has not received a 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 timely filed.

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 opinion and recommendation of the Air Force office of primary responsibility and adopt its 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.

4.  The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved.  Therefore, the request for a hearing is not favorably considered.

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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-2007-02816 in Executive Session on 21 December 2007, under the provisions of AFI 36-2603:

The following documentary evidence was considered for Docket Number BC-2007-02816:

    Exhibit A.  DD Form 149, w/atchs, dated 15 Aug 07.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFPC/DPPD, dated 27 Sep 07.
    Exhibit D.  Letter, SAF/MRBR, dated 19 Oct 07.