ADDENDUM TO
RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2014-04405

						COUNSEL:  

						HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

Her records be corrected to reflect:

	a.  A narrative reason for separation of Disability, Permanent with the corresponding Separation program designator (SPD) code of SFJ. 

	b.  A reentry (RE) code of 2Q, which denotes “Personnel Medically Retired or Discharged.”  

	c.  She received a medical retirement.

RESUME OF CASE:

On 31 May 05, the applicant was referred to an Informal Physical Evaluation Board (IPEB).  The IPEB found the applicant unfit and recommended discharge.  On 20 Jun 05 the applicant concurred with the findings.  On 2 Aug 05, the applicant was honorably discharged without a disability rating. 

DoD Instruction (DoDI) 6040.44, states in part that the PDBR will reassess the accuracy and fairness of the combined disability ratings assigned former Service members who:

(1) Were separated, with a combined disability rating of 20 percent or less during the period beginning on 11 Sep 01, and ending on 31 Dec 09, due to unfitness for continued military service, resulting from a physical disability as described in chapter 61 of Reference (c); and

(2) Were not found to be eligible for retirement, including former Reserve Component Service members with 20 satisfactory years.

By application dated 14 October 2014, the applicant requested her records be corrected to show she received a medical retirement.  The applicant believed she was entitled to a medical disability retirement due to the asthma she developed while on active duty.  She contended that she did not have asthma prior to entering active duty.  The Medical Consultant reviewed this case and acknowledged that the Department of Veterans Affairs elected to assign service connection and a 60% disability rating for the applicant’s asthma.  The date of such a decision nor the rationale for the decision was not supplied for review and comment. The applicant was advised that the Department of Veterans Affairs is authorized under Title 38, United States Code, to make determinations of eligibility for compensation independent of findings by a Military Department.  Without justification, the Consultant opined, such findings did not automatically negate or make invalid the administrative findings of the Military Department.  As such, the Medical Consultant recommended denial of the applicant’s petition to supplant her discharge under Secretarial Authority with a medical retirement.  On 9 September 2015, after careful consideration of the applicant’s request and the available evidence of record, the Board rejected the application as untimely noting she 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.  The Board determined it would not be in the interest of justice to waive the untimeliness.  For an accounting of the facts and circumstances surrounding her requests, and the rationale for the earlier decision by the Board, see the Record of Proceedings, with Exhibits A through E, at Exhibit F.

By application dated 24 November 2015, the applicant requests her records be corrected to reflect a narrative reason for separation of “disability permanent” with the corresponding SPD code of SFJ, a reentry (RE) code of 2Q and a medical retirement.  She is appealing the earlier decision to deny her request as untimely because she was not aware of her rights and was uneducated on this topic.  She again contends she was diagnosed with asthma while on active duty, which resulted in her being discharged.  She was discharged for a disability that existed prior to service which was an injustice because, per military regulations, you cannot enlist with asthma.  Her file was incorrectly documented by the Informal Physical Evaluation Board (IPEB).  

The applicant’s complete submission, with attachments, is at Exhibit G.

By letter, dated 7 December 2016, counsel requests the applicant’s disability separation be re-evaluated by the Physical Disability Board Review (PDBR).  He states the Air Force committed a legal error when the PEB found the applicant’s asthma existed prior to service and did not properly evaluate the severity of the applicant’s medical conditions. 

Counsel’s complete submission, with attachments, is at Exhibit I. 

THE BOARD CONCLUDES THAT:

In an earlier finding, the Board determined the applicant did not file his application within three years after the alleged error or injustice was discovered, or should have been discovered, as required by Title 10, United States Code, Section 1552 and Air Force Instruction 36-2603.  Therefore, the Board found the application untimely.  After thoroughly reviewing the additional documentation submitted in support of her appeal and the evidence of record, we also find that this application is untimely and do not find it in the interest of justice to excuse the failure to timely file.  With respect to counsel’s requests to have the applicant’s disability separation re-evaluated by the Physical Disability Board Review (PDBR), in accordance with Title 10, U.S.C. Sections 1552 and 1554a; and DoDI 6040.44, individuals may seek review of the disability ratings awarded accommodating disability separation by the PDBR or by the BCMR, but may not seek the same relief by both.  Therefore, we find no basis to grant any of the relief sought in this application. 

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-2014-04405 in Executive Session on 26 July 2016 and 10 May 2017, under the provisions of AFI 36-2603:

	, Panel Chair
	, Member
	, Member

The following documentary evidence pertaining to AFBCMR Docket Number BC-2014-04405 was considered:

	Exhibit F.  Record of Proceedings, dated 15 Sep 15,
  w/Exhibits A - E.
	Exhibit G.  DD Form 149, dated 24 Nov 15, w/atchs.
	Exhibit H.  Letter, Counsel, dated 7 Dec 2016, w/atchs.

Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified that a quorum was present at the Board's review and deliberations, and that the foregoing is a true and complete record of the Board's proceedings in the above-entitled matter.