RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-02083 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: He be retired by reason of physical disability, rather than discharged with severance pay. ________________________________________________________________ APPLICANT CONTENDS THAT: He would have been disability retired has his diagnoses of major depressive disorder, sleep apnea and migraine headaches been addressed in the 25 April 2007 Medical Evaluation Board (MEB) narrative summary and on the 30 May 2007, AF Form 356, Findings and Recommended Disposition of USAF Physical Evaluation Board. He was on active duty from 5 May 1999 through June 2007. In 2007, he had a medical evaluation board (MEB) for his lower back problem. He also had three chronic conditions; depression, migraine headaches, and sleep apnea, that were not considered by neither the MEB nor any of his other medical boards. All conditions were diagnosed while he was on active duty. The Air Force (AF) discharged him with a 20 percent disability rating for his back. However, the Department of Veterans Affairs (DVA) granted him a 40 percent disability rating just for his back. The VA also rated his three chronic health conditions immediately upon his leaving active duty in 2007. In support of his request, the applicant provided copies of his DD Form 214, Certificate of Release or Discharge from Active Duty, DVA rating/decision letter, evaluation boards’ findings, and MEB summary and medical records. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: According to documents extracted from the automated records management system (ARMS) the applicant enlisted in the Air Force on 5 May 1999. On 25 April 2007, the applicant was evaluated by a Medical Evaluation Board (MEB) after he was involved in motor vehicle collision, which was a rollover-type accident. The outcome of his medical conditions were; an L1 compression fracture and 16 degrees of kyphosis between T-12 and L1. He was found to require permanent restrictions in the form of; no lifting more than 50 pounds, no carrying backpacks over 50 pounds, no physical activity outside of his normal work-related duties. He was required to avoid running, bending or stooping at the waist. The board findings indicated it was in the best interest of the applicant as well as the Air Force that he be medically retired since he would not be able to return to his job or any job without restrictions and would not be able to return to any kind of deployment readiness again and may be in permanent pain. On 30 May 2007, the USAF Physical Evaluation Board evaluated the applicant’s case and found him unfit for duty and recommended temporary retirement with the maximum disability rating of 40 percent in accordance with the Department of Defense and Veterans Administration Schedule for Rating Disabilities guidelines. On 29 June 2009, the applicant was placed on the TDRL with a compensable physical disability rating of 40 percent. Effective 28 June 2007, the applicant was released from active duty with an honorable characterization of service and a narrative reason for separation of “disability, temporary.” He was credited with 8 years, 1 month and 24 days of active duty service. His grade at the time of discharge was Senior Airman (SrA), E-4, with an effective date of pay grade of 18 October 2001. On 12 December 2008, the Informal Physical Evaluation Board (IPEB) reevaluated the applicant’s case and found that his medical condition had improved and appeared to have stabilized since being placed on TDRL. The IPEB recommended discharge with severance pay with a disability rating of 20%. The applicant did not concur with the IPEB recommendation and requested an appearance before the Formal Physical Evaluation Board (FPEB) and subsequently the Secretary of the Air Force Personnel Council (SAFPC). Both the FPEB and SAFPC concurred with the recommendation for discharge with severance pay with a disability rating of 20 percent. Effective 4 January 2010, the applicant was removed from the TDRL and discharged with severance pay. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPPD recommends denial. DPPD states the preponderance of evidence reflects that no error or injustice occurred during the disability processing or at the time of separation. The Department of Defense (DoD) and Department of Veterans Affairs disability evaluation systems 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. 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. Regarding the applicant’s contention that additional medical conditions should have been considered on the medical boards, upon review of the case, the narrative summary listed the following medical conditions as past medical history: depression, migraines (with aura), and non-organic sleep disorders. The physical evaluation boards may rate any condition they find that renders the service member unfit for continued military service, 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. In this case there was no evidence of any additional unfitting conditions and the applicant did not petition to add any additional conditions during the disability evaluation processing. The complete AFPC/DPPD evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 27 June 2012 for review and comment within 30 days (Exhibit D). To date, this office has not received a response. THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file. 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. The Board took note of the applicant’s contention that he had three chronic conditions; depression, migraine headaches, and sleep apnea, that were not considered during his processing through the Military Disability Evaluation System. However, the evidence available to us reflects that his disability discharge for Chronic Low-Back Pain Status L4-S1 Spinal Fusion was properly executed and we find no basis to warrant disturbing the record. There was no evidence of any additional unfitting conditions and the applicant did not petition to add any additional conditions during the disability evaluation process. In view of the above and in the absence of evidence to the contrary, we find no compelling 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 this application in Executive Session on 15 February 2013, under the provisions of AFI 36-2603: Panel Chair Member Member The following documentary evidence was considered in AFBCMR Docket number BC-2012-02083: Exhibit A. DD Form 149, dated 9 May 2012, w/atchs. Exhibit B. Applicant’s Master Personnel Records. Exhibit C. Letter, AFPC/DPPD, dated 14 June 2012. Exhibit D. Letter, SAF/MRBR, dated 27 June 2012. Panel Chair