RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-00428 INDEX CODE: 108.02 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: His removal from the Temporary Disability Retired Listed (TDRL) be reconsidered with his nonconcurrence to the Informal Physical Evaluation Board (FPEB). _________________________________________________________________ APPLICANT CONTENDS THAT: He faxed his request for a Formal Physical Evaluation Board (FPEB). The request was not considered in the decision of his TDRL status. In support of his application, applicant provides a copy of the Action on the Findings and Recommended Disposition of the USAF Physical Evaluation Board. Applicant's complete submission, with attachment, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: On 29 Nov 95, the applicant contracted his initial enlistment in the Regular Air Force. He was progressively promoted to the grade of staff sergeant, having assumed the grade effective and with a date of rank of 1 Mar 01. The applicant's records reflect in April 2002, he self-referred to Life Skills due to an anxiety while flying. He again reported to Life Skills in July 2004 due panic attacks. He was diagnosed with an Anxiety Disorder. On 27 Jun 05, he underwent an MEB for a Panic Disorder without Agoraphobia, and a history of fear of flying. The IPEB found him unfit and placed him on the TDRL with a 30 percent disability rating. On 21 Feb 07, the applicant received his first TDRL mental health reassessment and the psychiatrist determined the applicant’s medical condition had remained the same since his MEB. On 5 Apr 07, he underwent a TDRL reevaluation and the IPEB recommended retaining him on the TDRL although his condition had improved since being placed on the TDRL but it had not yet stabilized. On 7 Oct 08, he underwent his second TDRL reevaluation and it was deemed his medical condition was in remission. On 24 Dec 08, the IPEB reviewed his case and determined his medical condition had stabilized. The IPEB noted that the evaluating psychiatrist noted the applicant had been without major psychiatric symptoms for one year and that his condition was in remission. It was also noted that he was at risk for a recurrent exacerbation of his medical condition if re- exposed to the military environment. The IPEB found him unfit and recommended removal from the TDRL and discharge with severance pay with a 10 percent disability rating. On 5 Jan 09, the findings of the IPEB were forwarded to the applicant. He had until 30 Jan 09 to return his signed election. However, due to administrative changes and no response from the applicant his case was not finalized until 7 Jan 10. He was removed from the TDRL on 27 Jan 10. He was discharged with severance pay with a 10 percent disability rating. He was credited with 9 years, 9 months and 25 days of active service; and 14 years, 1 month and 29 days of service for severance pay. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSD recommends denial of the applicant’s request. DPSD states the applicant was forwarded the recommendation of the IPEB with a suspense to respond by 30 Jan 09. However, due to administrative changes his case was filed as inactive and not finalized until 7 Jan 10. The applicant contends he faxed his election statement on 21 Jan 09 requesting a formal hearing. There was no copy of his election in his case file. The only copy that was received was date stamped 19 Jan 10. Unfortunately, the header on the faxed copy has a date indicator as 7-02-1996 as the transmittal date. DPSD further states the preponderance of evidence does not reflect that no error or injustice occurred during the disability process. The complete AFPC/DPSD evaluation is at Exhibit C. The BCMR Medical Consultant recommends denial of the applicant’s request for a hearing by the FPEB and change in his disability rating. The Medical Consultant states the applicant’s final clinical evaluation plainly showed that his medical condition had improved for the better since his initial TDRL placement, by virtue of the determination that his medical condition was in remission. When there has been significant improvement in a medical condition at the time of TDRL re-evaluation, the disability rating is correspondingly adjusted (reduced or increased) to match the level of functional impairment present. Although, the applicant should not have been deprived of his right to an FPEB hearing, the Medical Consultant is of the opinion that had his case been reviewed before an FPEB, with the evidence provided, he, more likely than not, would have been issued the same decision rendered by the IPEB. Further, unless additional evidence shows the applicant's clinical status to be worse (or unchanged) than characterized by the evaluating psychiatrist, it is likely that the Secretary of the Air Force Personnel Council (SAFPC) would have upheld the decision of the IPEB and FPEB upon further appellate review. The complete BCMR Medical Consultant's evaluation, with attachment, is at Exhibit D. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 26 Oct 10 for review and comment within 30 days. 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 timely filed. 3. Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. The applicant’s contentions are duly noted; however, we agree with the opinions and recommendations of the Air Force office of primary responsibility and the BCMR Medical Consultant and adopt their rationale as the basis for our conclusion the applicant has failed to sustain his burden of proof of the existence of either an error or injustice. The applicant has not provided sufficient evidence to show he submitted his nonconcurrence to the IPEB’s recommendation within the specified timeframe. We note the applicant’s final clinical evaluation showed that his overall medical status had improved since his placement on the TDRL and that his condition was in remission. Although the applicant did not receive a hearing by the FPEB, the evidence supports the FPEB more than likely would have concurred with the decision of the IPEB; and the evidence further supports that SAFPC would have upheld the decision of the IPEB and FPEB, unless additional documentation was provided. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application. _________________________________________________________________ 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 AFBCMR Docket Number BC-2010-00428 in Executive Session on 7 Dec 10, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 21 Jan 10, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSD, dated 11 Mar 10. Exhibit D. Letter, AFBCMR Medical Consultant, dated 15 Oct 10. Exhibit E. Letter, SAF/MRBR, dated 26 Oct 10.