RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-02246 COUNSEL: NONE HEARING DESIRED: YES APPLICANT REQUESTS THAT: His medical discharge be changed to a medical retirement. APPLICANT CONTENDS THAT: He was not given any options and was not in a position to challenge the discharge decision. In Jan 96, he had brain surgery and it left him with residual problems ever since. In Aug 96, he was placed on the Temporary Disability Retired List (TDRL). The physician who conducted the TDRL follow-on evaluation was disgruntled and within three minutes of the evaluation stated he was recommending that he be discharged. The Air Force was conducting a Reduction In Force (RIF) and his name was on the list because of his surgery. He was given severance pay and advised that if he tried to fight staying in, he would lose everything and still be out of the military. He was scared and confused as he had a family, no job and a partial disability. He was not given a chance to speak to the board, even after his time on the TDRL. He has been told by the Department of Veterans Affairs (DVA) that he should have been medically retired. Two years ago he met with his Senator who agreed his discharge was a mistake and he was advised to pursue a correction. He could provide more information if given the opportunity to address the Board. The Board should consider it in the interest of justice to consider his untimely application as he has been trying to get his records corrected for the past 18 years. He was treated unjustly but no one could help. He gave up until recently. The applicant’s complete submission is at Exhibit A. STATEMENT OF FACTS: On 13 Oct 83, the applicant entered the Regular Air Force. Per Special Order ACD-1543 dated 25 Jun 96, the applicant was relieved from active duty effective 6 Aug 96 and was placed on the TDRL in the grade of Staff Sergeant (SSgt, E-5) with a compensable percentage for physical disability of 40 percent. Per Special Order TDD-0327 dated 19 Dec 97, the applicant was scheduled for his periodic TDRL examination on 16 Jan 98 as required by 10 U.S.C § 1210. The evaluating physician recommended he not be returned to active duty. According to AF Form 356, Findings and Recommended Disposition of USAF Physical Evaluation Board, dated 2 Feb 98, the Informal Physical Evaluation Board (IPEB) reviewed the TDRL examination and determined the applicant’s medical condition as neurologically stable and his residual deficits relatively mild. The IPEB recommended that he be Discharged With Severance Pay (DWSP) with a 10 percent compensable disability rating for an unfitting condition of weakness of right hand. On 19 Feb 98, the applicant concurred with the recommended findings of the IPEB. On 2 Mar 98, the Secretary of the Air Force directed the applicant’s name be removed from the TDRL and he be DWSP under the provisions of 10 U.S.C. § 1203. According to Special Order ACD-0600 dated 2 Mar 98, the applicant was removed from the TDRL effective 22 Mar 98 and DWSP in the grade of SSgt. He was credited with 12 years, 9 months and 23 days of service for severance pay. AIR FORCE EVALUATION: AFPC/DPFD recommends denial indicating the preponderance of the evidence reflects there was no error or injustice that occurred during the disability process or at time of separation. On 10 Jun 96, the IPEB recommended the applicant be placed on the TDRL with a disability rating of 40 percent for diagnosis of generalized tonic-clonic seizure disorder, status post 30 Jan 96 left parietal craniotomy with sterotactic guided resection of cavernous hemangioma. The applicant concurred with the recommendation on 21 Jun 96 and he was placed on the TDRL on 25 Jun 96 with an established retirement date of 6 Aug 96. On 16 Jan 98, he was scheduled for his first TDRL re-evaluation and the IPEB reviewed the medical information on 2 Feb 98 and recommended the applicant be removed from TDRL and DWSP with a 10 percent disability rating. The board noted from the neurological consult “Applicant’s medical condition is now considered neurologically stable and his residual deficits are relatively mild. Member still cannot adequately control his right hand. The IPEB finds member unfit and recommends DWSP.” On 19 Feb 98, the applicant concurred with the findings. Special Order ACD-0600 was issued on 2 Mar 98 that removed the applicant from TDRL effective 22 Mar 98. As background, the DVA Disability Evaluation System (DES) operates under separate laws. Under 10 U.S.C., PEBs must determine if a member’s condition renders them unfit for continued military service relating to their office, grade, rank or rating. 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, by law, leaves off. Under 38 U.S.C., the DVA may rate any service-connected condition based upon future employability or reevaluate based on changes in the severity of a condition. A complete copy of the DPFD evaluation is at Exhibit C. The BCMR Medical Consultant recommends denial of the request for a medical retirement. The applicant has not met the burden of proof of error or injustice to warrant the desired change and the request has also not been timely filed. The Medical Consultant adopts the discussion of DPFD. The military DES, established to maintain a fit and vital fighting force, can by law under 10 U.S.C., only offer compensation for those service incurred diseases or injuries which specifically rendered a member unfit for continued active service and were the cause for career termination; and then only for the degree of impairment present at the “snapshot” time of separation and not based on post-service progression of disease or injury. Members are placed on the TDRL when their medical condition rates at least 30 percent and the condition has not yet been stabilized. Following a reasonable period in TDRL status [12 to 18 months], reexaminations are conducted to determine if the condition has improved, worsened or remained the same. Based upon the clinical assessment of the neurologist in Jan 98, the IPEB concluded the applicant’s medical condition was sufficiently stabilized and implicitly improved to warrant removal from the TDRL status; and to then rate any existing residual impairments. The IPEB only found the residual weakness of the applicant’s right hand unfitting and rated it at 10 percent under the Veterans Affairs Schedule for Rating Disabilities (VASRD) code 8599-8516. Any other service- connected medical conditions that were not related to the initial reason for TDRL placement or its treatment, cannot be later included in the TDRL rating computation; without regard to its severity at the time of the TDRL review. A complete copy of the Medical Consultant’s evaluation is at Exhibit D. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 20 Jan 15 for review and comment within 30 days (Exhibit E). As of this date, no response has been received by this office. FINDINGS AND CONCLUSIONS OF THE BOARD: 1. After careful consideration of the applicant’s request and the available evidence of record, we find the application untimely. Applicant did not file within three years after the alleged error or injustice was discovered as required by Title 10, United States Code, Section 1552 and Air Force Instruction 36-2603. It has been almost 17 years since the applicant’s discharge and the unreasonable delay has caused prejudice to the Air Force as relevant records have been destroyed or are no longer available. The applicant has not shown a plausible reason for the delay in filing, and we are not persuaded that the record raises issues of error or injustice which require resolution on the merits. Thus, we cannot conclude it would be in the interest of justice to excuse the applicant’s failure to file in a timely manner. 2. 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 DETERMINES THAT: The application was not timely filed and it would not be in the interest of justice to waive the untimeliness. It is the decision of the Board, therefore, to reject the application as untimely. The following members of the Board considered AFBCMR Docket Number BC-2014-02246 in Executive Session on 17 Mar 15 under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 1 Jun 14. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, AFPC/DPFD, dated 24 Jul 14. Exhibit D. Memorandum, BCMR Medical Consultant, dated 15 Jan 15. Exhibit E. Letter, SAF/MRBR, dated 20 Jan 15.