THIRD ADDENDUM RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2007-03725 COUNSEL: XXXXXXXX XXXXXXX HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: 1. He be reimbursed for his first move after his retirement date. 2. His medical and dental expenses, including health insurance premiums, be reimbursed. ________________________________________________________________ STATEMENT OF FACTS: The applicant submitted a similar request dated 9 Nov 07. On 15 Apr 10, the Board recommended that his records be corrected to show that: a. On 30 Jun 06, he was found unfit to perform the duties of his office, rank, grade, or rating by reason of physical disability, incurred while he was entitled to receive basic pay; that the diagnoses in his case were Cervical Spine Pain, VASRD Code 5242, rated at 10 percent; Lumbar Spine Pain, VASRD Code 5243, rated at 10 percent; and Ischial Bursitis, VASRD Code 5019, rated at 10 percent; that the total combined comprehensible percentage was 30 percent; that the degree of impairment was permanent; that the disability was not due to intentional misconduct or willful neglect; that the disability was not incurred during a period of unauthorized absence; and that the disability was not received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war. b. On 1 Jul 06, he declined Survivor Benefit Plan (SBP) coverage. c. He was released from active duty on 1 Jul 06 and was permanently retired by reason of physical disability, with a 30 percent compensable disability rating, effective 2 Jul 06. The Director, Air Force Review Boards Agency, agreed with the recommendation of the Board majority; however, he directed the applicant be granted a 60 percent compensable disability rating, rather than 30 percent, effective 2 Jul 06. The applicant also requested reimbursement of medical expenses; however, this request was denied because the AFBCMR was empowered only to correct military records. Determining the benefits and entitlements that are a consequence of such corrections is the responsibility of the offices of primary responsibility (in this case, TRICARE and the Defense Finance and Accounting Service (DFAS)) (Exhibit Z). On 25 Feb 11, the applicant requested the Board reconsider its denial of his request for reimbursement of his medical/dental bills and health insurance premiums. In addition, he requested: 1) He be enrolled in TRICARE coverage effective 2 Jul 06. 2) His medical retirement pay be tax exempt based on his combat-related injuries. 3) He be reimbursed for his first move after his retirement date . On 5 Mar 12, the BCMR Medical Advisor recommended denial of the applicant’s request to designate his medical conditions as combat-related and/or caused by an instrumentality of war. In a 13-page response, dated 2 Apr 12, the applicant disagreed with the BCMR Medical Advisor’s findings and states his record amply supports his disability as combat-related. On 30 Apr 12, the Board reconsidered and denied the applicant’s request. The Addendum to the ROP with the Board’s full rationale for its decision is at Exhibit AA. On 21 Jun 12, the applicant again applied to the Board for reconsideration. In this application he alleged that his 2 Apr 12 letter with attachments was not listed among the evidence the Board considered on 30 Apr 12. On 3 Dec 12, the Board reconsidered the applicant’s request and noted that while the documents were considered by the previous panel, they were inadvertently omitted from the list of Exhibits on the Addendum to the ROP dated 30 Apr 12. Additionally, the Board denied his request that his injuries be determined to be combat-related and his request for reimbursement of his medical and dental expenses. The Board did not find the applicant’s evidence and argument persuasive on the point of establishing his disability as combat-related. On his request for reimbursement of his medical expenses, the Board again noted for the applicant that the Board’s previous grant making him a disability retiree did qualify him for medical benefits, but he would have to take steps of his own to collect on his entitlement. (See Second Addendum at Exhibit BB, with attachments). By letter, dated 23 Jan 13, the applicant again requested reconsideration, contending this time that while the Board had directed that he be reimbursed for his first move, he had not been paid. With respect to reimbursement of his medical and dental bills, and health insurance premiums, he states that the Board’s first addendum to the Record of Proceedings contends that he failed to exhaust some remedy in connection with this portion of his application. However, the second addendum to the Record of Proceedings made no mention of any failure to exhaust any remedy and he is unsure of why the Board abandoned that portion of its earlier rationale. Further, he notes that the second addendum seems to suggest that relief was denied because he declined Medicare Part B coverage on 10 Dec 10 and 1 Jun 12, and that Part B enrollment is required to be eligible for Medicare disability benefits and feels that neither is a basis to deny relief (Exhibit CC). On 25 Mar 13, the AFBCMR staff examined his request and determined that it did not meet the criteria for reconsideration by the Board (Exhibit DD, with attachments). On 7 May 13, the United States Court of Federal Claims (CoFC) remanded the case to the Board and directed the Board address all of the issues raised in plaintiff’s request for reconsideration of the AFBCMR's Second Addendum to its Record of Proceedings (Exhibit EE). ________________________________________________________________ THE BOARD CONCLUDES THAT: Based on our earlier decision and the remand from the CoFC, after again reconsidering the applicant's appeal, it remains our opinion that no further correction to the record is warranted. Regarding his 23 Jan 13 letter, the applicant and counsel noted some confusion as to whether the Board, based on the Second Addendum to the Record of Proceedings, was abandoning its earlier determination that the applicant had not exhausted his administrative remedies. In the aforementioned addendum as in this proceeding, the Board has simply tried to provide further explanation as to why the applicant was only granted partial relief. As noted in the letter from the Executive Director, the applicant was successful in having his record partially corrected, and while it is apparent that he is still seeking monetary reimbursement for his expenses, there is no further action for the Board. The applicant’s military record has been corrected, and if he seeks payment for this correction, he has been advised to seek assistance from the Defense Finance and Accounting Service (DFAS), which has authority to issue funds as a result of the Board’s corrective action. Further, we submit the following to clarify the Board’s decision and explain the nature of the Board’s authority: 1. In an earlier finding, the Board determined there was insufficient evidence to warrant corrective action in regard to the applicant’s request that his injuries be rated as combat- related. However, the applicant has not provided any additional information to our satisfaction to specifically substantiate his entitlement to the requested relief or to overturn our earlier decision. In view of the above, we find no basis upon which to recommend favorable consideration of this portion of the application. 2. Concerning the applicant’s request for reimbursement of expenses he incurred during his first move, as noted in the earlier addendums, and according to a 30 Jan 12 letter from the Retirements Programs and Policy Section, Directorate of Personnel Services, Air Force Personnel Center (AFPC/DPSOR), that office administratively corrected his record to reflect that he was authorized a Home of Selection move on his amended retirement orders. Since there is no other correction to the record required, we advise the applicant to contact the Air Force office of primary responsibility (the Air Force District of Washington Joint Personal Property Agency) in regards to household goods shipment or DFAS for reimbursement of travel expenses. They should be able to assist the applicant with further resolution of this portion of his application. 3. Regarding the applicant’s request for reimbursement of his medical and dental expenses, based on the evidence of record and that provided through counsel, in Jun 10, the applicant’s record was corrected to reflect that he was disability retired, effective 2 Jul 06, with a disability rating of 60 percent. The applicant now requests that he be reimbursed for his medical claims. In an earlier rationale, the Board explained for the applicant the process of filing his claims through TRICARE; this explanation was not a basis for denial of his request, but rather an attempt to assist the applicant understand his next steps in obtaining the relief the Board had already granted him. TRICARE is the Department of Defense (DoD) contractor established to provide medical coverage for all retired military members. The applicant should continue working with TRICARE to seek reimbursement of his medical expenses. Further, the Board cannot enter an order to direct TRICARE (or DFAS for that matter) to pay the applicant a specific amount. The Board is a creature of statute. Under Title 10, Section 1552, the Board is empowered only to correct military records for the removal of error or injustice. The Board has no authority to issue orders to enforce its own corrections. On the other hand, Section 1552(a)(4) of Title 10 states, “[e]xcept when procured by fraud, a correction under this section is final and conclusive on all officers of the United States.” So, to the extent the Board has already granted relief to the applicant, other federal agencies have a duty to provide that relief. While counsel notes his belief as to what determines “full and fitting relief” or “thorough and fitting relief,” based on his submission, TRICARE and DFAS are the only agencies that can properly calculate and execute any amounts that may be owed pursuant to the Board’s directive. Regarding the applicant’s comments about being treated differently from others in a similar situation, the Board notes that all applicants receive relief from the Board in the form of a correction to their military records. In view of the above, we find no basis upon which to take further action in the applicant’s case. 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 issue(s) involved. Therefore, the request for a hearing is not favorably considered. ________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice for which the Board is able to grant relief beyond that already given; 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 AFBCMR Docket Number BC-2007-03725in Executive Session on 2 Jul 13, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit Z. Record of Proceedings, dated 10 Jun 10, w/atchs. Exhibit AA. Addendum to Record of Proceedings, dated 21 May 12. Exhibit BB. Second Addendum to Record of Proceedings, dated 28 Dec 12, w/atchs. Exhibit CC. Letter, Applicant, dated 23 Jan 13, w/atchs. Exhibit DD. Letter, AFBCMR, dated 25 Mar 13, w/atch. Exhibit EE. Remand from United States Court of Federal Claims, dated 7 May 13, w/atch.