RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-04632 COUNSEL: NONE HEARING DESIRED: YES _________________________________________________________________ APPLICANT REQUESTS THAT: His disability rating from the Air Force of 10 percent be increased to 30 percent and he receive a permanent retirement. _________________________________________________________________ APPLICANT CONTENDS THAT: He believes the Formal Physical Evaluation Board (FPEB) should have assigned him a 30 percent evaluation for his bipolar disorder to be consistent with the Department of Veterans Affairs (DVA) disability rating. Had the DVA initially evaluated him at 30 percent or if the FPEB waited until the DVA processed his appeal, the increased evaluation of 30 percent would have significantly affected the FPEB’s decision and would have resulted in him being retired from the Air Force vice being discharged with severance pay. In support of his request, the applicant provides a copy of a DD Form 294, Application for Review by the Physical Disability Board of Review (PDBR) of the Rating Awarded Accompanying a Medical Separation from the Armed Forces of the United States, a copy of the DVA Rating Decision, and a copy of a letter from SAF/MRBR. His complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant met an Informal Physical Evaluation Board (IPEB) on 5 Mar 10 and a Formal Physical Evaluation Board (FPEB) on 27 May 10. The IPEB and FPEB recommended him for discharge with a 10 percent compensable disability rating for Bipolar Disorder Type II. The applicant disagreed with the findings of the IPEB and FPEB and provided a statement of rebuttal. On 12 Jul 11, the Secretary of the Air Force Personnel Council (SAFPC) sent a letter to AFPC/DPDD directing the applicant to be removed from the Temporary Disability Retired List (TDRL) under provisions of Title 10, USC, Section 12210, and be discharged with severance pay with a disability rating of 10 percent. SAFPC’s rationale for its decision was based on the applicant’s diagnosis of Bipolar Disorder Type II. On a TDRL evaluation in September 2009 his Psychiatrist states, “the member is likely to have stable mood and function well in the civilian world if regular follow up care is maintained and treatment recommendations are adhered to”. The applicant is living with his wife and two kids with whom he reports to have good relations, shows good compliance with treatment recommendations, maintains fulltime employment and has not been hospitalized since discharge from active service. The applicant’s medical records fail to reflect instability or provide sufficient evidence that his medical condition is debilitating or causing social and occupational impairment. The applicant was removed from the TDRL and discharged on 10 Aug 11. On 21 Sep 11, the applicant submitted an application to the PBDR requesting an increase in his disability rating from the Air Force; however, SAF/MRBR sent him a letter on 25 Oct 11 notifying him that the PDBR could not process his application. He was referred to the Air Force Board for Corrections of Military Records (AFBCMR). _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSD recommends denial. The preponderance of evidence does not reflect an error or injustice that occurred during the disability processing. In addition, 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. The law provides appropriate compensation if the board renders an unfit finding due to premature termination of their career. However, the Department of Defense and the DVA disability evaluation systems operate under separate laws and are charged to pick up where the Air Force must, by law, leave off. DPSD notes that the DVA rated the applicant’s disability at 10 percent and did not increase it to 30 percent until 9 Aug 11. The complete DPSD evaluation is at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant responded by disagreeing with the Air Force opinion and strongly proposes that his case be reevaluated. The DVA initially rated him with a 10 percent disability rating for his bipolar condition; however, he rebutted the DVA decision that took over a year to be finalized. He received a decision from the DVA that agreed that he was 30 percent disabled and it was retroactive from the date of his initial claim. He did not have the DVA rating at the time of his FPEB on 27 May 10, but feels that his case is in error or unjust. His Air Force counsel at the FPEB hearing stated that this was going to be an uphill battle. The counsel stated, “that the DVA rating has the majority of the weight in deciding at what percentage the USAF FPEB board will place you”. This is why he feels so strongly about his case being reevaluated with his current information which supersedes the DVA documentation used during the FPEB, which could have possibly affected the outcome and final disposition of his Air Force service. He believes he should be permanently retired from the Air Force, rather than being discharged with severance pay. _________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 3. Sufficient relevant evidence has been presented to demonstrate the existence of error or injustice that warrants corrective action. In this respect, the applicant was initially rated at a 50 percent disability rating and placed on the TDRL by the Air Force for Bipolar Disorder Type II. However, subsequently SAFPC directed that he be removed from the TDRL and discharged with severance pay. While we note the opinion and recommendation of the Air Force office of primary responsibility, we believe based on the evidence of record, that the applicant’s chronic condition met the criteria for awarding a 30 percent disability rating. In this regard, we note the DVA's retroactive assignment of a 30 percent rating was based upon appellate review of the evidence that was present at or about the time of the applicant's initial release from military service (and not the time of TDRL re-evaluation), which resulted in the DVA's errant initial 10 percent rating. Therefore, in consideration of the totality of the evidence presented in this case, we recommend his records be corrected as indicated below. 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. _________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that a. On 10 August 2011, he was not discharged with severance pay and removed from the Temporary Disabiity Retired List (TDRL), but on that date, his name was placed on the Permanently Disability Retired List (PDRL) with a disability rating of 30 percent. b. The election of Survivor Benefit Plan option will be corrected in accordance with the member’s expressed preferences and/or as otherwise provided for by law or the Code of Federal Regulations. _________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2011-04632 in Executive Session on 24 Jul 12, under the provisions of AFI 36-2603: All members voted to correct the records, as recommended. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 16 Nov 11, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSD, dated 12 Jan 12. Exhibit D. Letter, SAF/MRBR, dated 24 Jan 12. Exhibit E. Letter, Applicant, dated 10 Feb 12.