RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-00775 XXXXXXX COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: 1. She receive a Permanent Disability Retirement. 2. She be awarded enough points to complete a 20th year of satisfactory service and eligibility for Concurrent Retirement and Disability Pay (CRDP). ________________________________________________________________ APPLICANT CONTENDS THAT: Her supervisor’s abusive behavior from 1986 through 1989 was the cause of her physical and mental conditions. In support of her request, the applicant provides a personal statement, copies of extracts from her medical records, witness statements, Department of Veterans Affairs (DVA) Rating Decision, military documents, and various other items in support of her request. Her complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The relevant facts pertaining to this application are contained in the letters prepared by the appropriate office of the Air Force and the BCMR Medical Consultant at Exhibits B and C. ________________________________________________________________ AIR FORCE EVALUATION: ARPC/DPTT recommends denial of the applicant’s requests for Reserve retired pay and CRDP. DPTT states that since the applicant did not complete 20 years of satisfactory service, she is not eligible for CRDP under the provisions of Title 10, § 1414. A service member rated at 50 percent or higher by the DVA can receive compensation from the DVA and not have that amount reduced from their military retirement. To establish eligibility for CRDP, one must complete 20 years of satisfactory service. Eligibility for a Reserve retirement requires a member to complete 20 years of satisfactory service. The applicant completed 19 years of satisfactory service creditable toward retired pay as of 7 Jul 1994, the date of her discharge from the Air Force Reserve. Therefore, she is not eligible for Reserve retired pay under the provision of Title 10, § 12731. The National Defense Authorization Act for Fiscal Year 1995, which was signed into law on 5 Oct 1994, amended Title 10, § 12731 to include early qualification for retired pay for members who were medically disqualified for duty. To establish eligibility for Reserve retired pay at age 60 under the provision of Title 10, § 12731 (b), for physical disqualification, a member must have completed at least 15 years, but less than 20 years of satisfactory Federal service and medically disqualified for military service on or after 5 Oct 1994. Since the applicant's record does not show she was medically disqualified and she was honorably discharged prior to 5 Oct 1994, she is not eligible for Reserve retired pay under this provision of law. The complete DPTT evaluation, with attachment, is at Exhibit B. The BCMR Medical Consultant recommends denial of the applicant’s request for points and a medical retirement. The Medical Consultant opines that the applicant has not met the burden of proof of error or injustice that warrants the desired change of the record. The discharge was consistent with the procedural and substantive requirements of the discharge regulation. The applicant has offered unmistakably evidence to support she suffers from various psychiatric conditions, and that those conditions are disqualifying for military service. On 6 Feb 1994, she underwent a fitness for duty determination. AF Form 618, Medical Board Report, found the applicant unfit for duty. A "Fit for Duty" determination was done in lieu of a "Line of Duty" determination because her psychiatric conditions were deemed to have "Existed Prior to Service (EPTS).” Her Point Credit Air Reserve Summary shows she performed the usual and customary Inactive Duty Training (24 days a year) and Active Duty (14 days a year) required of a reservist between 1986 and 1989. The alleged abuse from her supervisor was during her full time civilian employment as a Air Reserve Technician (ART). Although ARTs wear their military uniforms, they are civilian employees and are not in a military status. Logic would depict that if her supervisor had some culpability for her medical condition then it would have occurred during her civilian employment. The Medical Consultant found no evidence to support that her medical conditions deteriorated while on duty, but rather her problems occurred during full time working hours. This concept is supported by the applicant's reference letters, individuals she worked with on a daily basis. The Medical Consultant found no Line of Duty determinations within the medical records, to support anything other than a "non-duty related impairment or condition." Members with non-duty related impairments are eligible to be referred to the PEB for solely a fitness determination but not a determination of eligibility for disability. The Medical Consultant is confused as to why the DVA offered compensation for "removal of ovaries and uterus - 50 percent, eurogenic bladder - 40 percent, dysthymic disorder, major depression - 30 percent, and fibrocystic breasts - 10 percent, when they appear not to be duty related nor are they In Line of Duty. The Medical Consultant assumes this is because the DVA operates under a different set of laws (Title 38, U.S.C.), with a different purpose, the DVA is authorized to offer compensation for any medical condition determined service incurred, without regard to [and independent of] its demonstrated or proven impact upon a service member's retainability, fitness to serve, narrative reason for separation, or the intervening or transpired period since the date of separation. With this in mind, Title 38, which governs the DVA compensation system, was written to allow awarding compensation ratings for conditions that were not unfitting for military service or at the time of separation. This is the reason why an individual can be found fit for release from military service and yet sometime thereafter receive a compensation rating from the DVA for service-connected, but militarily non-unfitting conditions. The DVA is also empowered to conduct periodic re-evaluations for the purpose of adjusting the disability rating awards (increase or decrease) as the level of impairment from a given service connected medical condition may vary (improve or worsen, affecting future employability) over the lifetime of the veteran. The complete Medical Consultant’s evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: On 22 May 2013, copies of the Air Force and BCMR Medical Consultant evaluations were 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 error or injustice. We took notice of the applicant's complete submission in judging the merits of the case; 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 not been the victim of an error or injustice. 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 BC-2013-00775 in Executive Session on 19 Nov 2013, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 7 Feb 2013, w/atchs. Exhibit B. Letter, ARPC/DPTT, dated 29 Mar 2013. Exhibit C. Letter, BCMR Medical Consultant, dated 20 May 2013. Exhibit D. Letter, SAF/MRBC, undated. 1 2