RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-00259 XXXXXXX COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: 1. Her disability discharge be changed to a medical retirement. 2. Her AF Form 356, Findings and Recommended Disposition of USAF Physical Evaluation Board, be changed to include all service connected disabilities. 3. Her disability rating be increased. ________________________________________________________________ APPLICANT CONTENDS THAT: She should be medically retired and given a 50 percent disability rating. After 11 years of dedicated service, she was found unfit for continued service. The Physical Evaluation Board (PEB) overlooked multiple disabilities during the evaluation. However, on 20 Jan 2006, the Department of Veterans Affairs (DVA) awarded her a 50 percent disability rating for service connected disabilities. Although these service connected disabilities were fully documented in her military medical records, they were overlooked and not documented on the original PEB. These service connected disabilities not only caused her to be unfit for duty but she continues to receive medical care. She was unaware that the PEB decision could be corrected until she received a letter from the Physical Disability Board of Review. In support of her request, the applicant provides copies of her AF Form 356, Department of Veterans Affairs (DVA) Rating Decision; DD Form 214, Certificate of Release or Discharge from Active Duty; VA Form 9, Appeal to Board of Veterans’ Appeals; Standard Forms 600, Chronological Record of Medical Care, and various other documents associated with her request. Her complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: On 13 Nov 1992, the applicant enlisted in the Regular Air Force. On 10 Mar 2003, the Informal PEB (IPEB) reviewed the applicant’s chronic neck pain secondary to degenerative disk disease status post cervical fusion associated with Fibromyalgia and recommended discharge with severance pay with a disability rating of 20 percent. On 24 Jun 2003, she was separated from active service for physical disability under the provisions of 10 USC § 1203, with severance pay. She had 10 years, 7 months and 11 days of active service. According to the 20 Jan 2006, DVA Rating decision provided by the applicant, she received an overall or combined rating of 50 percent for Gastrointestinal Reflux Disease (GERD) (also claimed as hiatal hernia), Fibromyalgia with migraine headaches, Irritable Bowel Syndrome (IBS), depression with panic attacks, insomnia, polyuria due to neurogenic bladder, bilateral knee pain (claimed as bilateral patellofemoral syndrome), and thoracic dysfunction effective 24 Jun 2006. The remaining relevant facts pertaining to this application are contained in the letter prepared by the appropriate office of the Air Force at Exhibit C. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPFD recommends denial. DPFD states that the preponderance of evidence reflects that no error or injustice occurred during the disability process or at the time of separation. On 10 Mar 2003, the IPEB reviewed the case for chronic neck pain secondary to degenerative disk disease status post cervical fusion associated with fibromyalgia. The IPEB noted the diagnoses of GERD and Chiari I malformation as conditions that can be unfitting but were not currently compensable or ratable at the time of review by the IPEB. The Board recommended discharge with severance pay with a disability rating of 20 percent. On 13 Mar 2003, the applicant non-concurred and requested a formal hearing with counsel. On 6 May 2003 she requested to waive a formal hearing and accept the recommendation of the IPEB. On 13 May 2003, a discharge message was sent that established 23 Jun 2003 as the date of separation. The DVA disability evaluation system operates under separate laws. Under Title 10, USC, PEBs must determine if a member's condition renders the individual unfit for continued military service relating to office, grade, rank or rating. The fact that a person may have a medical condition does not mean that the condition is necessarily unfitting for continued military service. To be unfitting, the condition must preclude 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 Air Force 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 Air Force 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. The complete DPFD evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: On 17 Feb 2013, a copy of the Air Force evaluation was forwarded to the applicant for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit D). ________________________________________________________________ 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 an error or an injustice. We note that the applicant requests her AF Form 356 be corrected to include all of her service connected injuries, her disability rating percentage be increased and that she receive a medical retirement. However, based on the preponderance of the evidence, it appears the applicant’s disability rating of 20 percent was properly adjudicated and we found no evidence which would lead us to believe that her separation was in error or contrary to the governing Air Force instructions. Therefore, we agree with the opinion and recommendation of the Air Force OPR and adopt its rationale as the basis for our conclusion that the applicant has failed to sustain her burden that she has suffered either an error or an injustice. In the absence of persuasive 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 this application in Executive Session on 29 Oct 2013, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered in AFBCMR BC- 2013-00259: Exhibit A. DD Form 149, dated 11 Nov 2012, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPFD, dated 12 Feb 2013. Exhibit D. Letter, SAF/MRBR, dated 17 Feb 2013. 1 2