RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS. IN THE MATTER OF: DOCKET NUMBER: BC-2015-01013 XXXXXXXXXX COUNSEL: NONE AKA XXXXXXXXXX HEARING DESIRED: NO APPLICANT REQUESTS THAT: His severance pay be reinstated. APPLICANT CONTENDS THAT: He was placed on the Temporary Disability Retired List (TDRL) in July 1995 and was told that he would be permanently retired after his disability was reevaluated. Instead, he was discharged with severance pay and had no recourse but to accept the decision. After his disability increased to 100 percent, the Department of Veterans Affairs (DVA) told him that the severance pay he received would be recouped because he was not entitled to Concurrent Receipt Disability Payment (CRDP). Following years of inquiries, he now understands why he is not entitled to CRDP. However, his severance pay should never have been recouped. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: According to the applicant’s DD Form 13, Statement of Service, he enlisted in the Air Force Reserve on 18 October 1974. According to AF Form 356, Findings and Recommended Disposition of USAF Physical Evaluation Board, dated 4 May 1995, the Informal Physical Evaluation Board (IPEB) found the applicant unfit based on a diagnosis of “Mechanical Low Back Pain with Spondylolysis and Grade I Spondylolisthesis L5-S1 associated with psychological factors affecting Physical Disease. Definite Social and Industrial Impairment,” and recommended placement of the TDRL. According to the applicant’s AF Form 1180, Action on Informal Physical Evaluation Board Findings and Recommended Disposition, dated 18 May 1995, he agreed with the findings of the IPEB. Special Order ACD-1585 dated 16 June 1995, placed the applicant on the TDRL effective 7 July 1995, with a physical disability rating of 30 percent. According to the applicant’s AF Form 356, Findings and Recommended Disposition of USAF Physical Evaluation Board, dated 8 November 1996, the IPEB found the applicant unfit based on a diagnosis of “Mechanical Low Back Pain and Grade I Spondylolisthesis L5- S1 associated with psychological factors affecting Physical Condition Mild Social and Industrial Impairment,” and recommended discharge with severance pay with a 10 percent disability rating. According to the Action on the Findings and Recommended Disposition of the USAF Physical Evaluation Board (TDRL), dated 10 December 1996, the applicant concurred with the recommended findings of the IPEB. According to Special Order ACD-0354 dated 17 December 1996, the applicant was removed from the TDRL and discharged by reason of physical disability and entitled to severance pay. He was credited with 17 years, 5 months and 28 days service for basic pay and 13 years, 6 months and 1 day service for severance pay. According to DoD 7000.14-R, Financial Management Regulation, Volume 7A, Chapter 35 (Separation Payments) the DVA deducts disability severance compensation from any DVA compensation for the same disability to which the member or member’s dependents become entitled under any law administered by the DVA. There are two exceptions: (a) No deduction will be made in the case of disability severance pay received by a member for a disability incurred in the line of duty in a combat zone or incurred during performance of duty in combat-related operations (as designated by the SecDef); or (b) No deduction will be made from any death compensation to which a member’s dependents become entitled after the member’s death. According to the Defense Finance and Accounting Service (DFAS), CRDP allows military retirees to receive both military retired pay and DVA compensation. One must be eligible for retired pay to qualify for CRDP. The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force office of primary responsibility (OPR), DFAS and the BCMR Medical Consultant, which are attached at Exhibits C-E. AIR FORCE EVALUATION: AFPC/DPFD recommends denial indicating there is no evidence of an error or an injustice. The applicant was found unfit for continued military service through the Disability Evaluation System (DES) and recommended for placement on the TDRL with a 30 percent disability rating. He concurred with the recommendation and was medically retired for reason of physical disability effective 6 July 1995 [sic]. The applicant underwent reevaluation in October 1996 and the IPEB recommended the applicant be removed from TDRL and discharged with severance pay with a 10 percent disability rating. He concurred with the recommendation on 10 December 1996, and was subsequently removed from the TDRL and discharged effective 17 December 1996. He served 17 years, 5 months and 28 days at the time of his release from the Air Force. While the applicant contends he was counseled he would receive permanent disability retirement, the documents he was provided from the IPEB and his orders clearly indicate discharge with severance pay. It should be noted the applicant did not exercise his right to appeal the IPEB decision at the time of recommendation for placement on the TDRL or at the time of recommendation for discharge with severance pay. A complete copy of the AFPC/DPFD evaluation is at Exhibit C. DFAS does not make a recommendation, but offers the following commentary regarding the applicant’s separation pay. On 7 July 1995, the applicant was placed on TDRL. On 17 January 1997, DFAS received Special Order No. ACD-0354 indicating the applicant was removed from the TDRL and discharged by reason of physical disability with entitlement to disability pay. DFAS is authorized to enforce the aforesaid military orders. However, they cannot change the information provided on those orders. According to the orders received, the applicant was no longer a military retiree. He was discharged by reason of physical disability and was entitled to disability severance pay. The DVA deducts disability severance compensation from any DVA compensation for the same disability to which the member or member's dependents become entitled under any law administered by the DVA (DoD 7000.14-R, Volume 7A, Chapter 35, Section 350506). A complete copy of the DFAS evaluation is at Exhibit D. The BCMR Medical Consultant recommends denial. Although the IPEB elected to remove the applicant from the TDRL and characterized his level of impairment as “mild,” resulting in a 10 percent disability rating, the evaluating psychiatrist characterized the applicant’s level of impairment as “definite” [same as when first placed on the TDRL] and recommended retaining him on the TDRL for continued rehabilitation. However, given the facts of the case, the evidence also supported the decision of the IPEB. The applicant accepted the recommended disposition of the IPEB and he was removed from the TDRL and discharged with entitlement to severance pay; since as a result of the disability rating deduction, he was no longer retirement eligible, but only entitled to severance pay. At the time of the applicant’s discharge Military Departments utilized criteria outlined in Department of Defense Instruction (DoDI) 1332.39, Application of the Veterans Administration Schedule for Rating Disabilities, in making rating determinations for mental disorders. The disability ratings were based upon the level of impairment in civilian social [or occupational] and industrial adaptability; which then corresponded with a given disability rating determination. For example a “mild” level of impairment warranted a 10 percent rating, a “definite” level of impairment warranted a 30 percent rating, “considerable” impairment warranted a 50 percent rating, “severe” impairment warranted a 70 percent rating, and “total” impairment warranted a 100 percent rating. Under paragraph E2.A1.5.1.4.5, a “mild” level of impairment was determined to be present when the member maintains an adequate job adjustment and maintains an adequate social adjustment. In the case of “definite” impairment, the individual does not demonstrate a significant requirement for hospitalization, displays some signs or symptoms of mental illness on examination, usually requires medication and/or frequent psychotherapy, may experience some job instability, and evidences borderline social adjustment. While one can argue whether or not the “mild” characterization of the applicant’s impairment by the IPEB was appropriate in 1996, one must note his supervisory employment capacity and his physical capabilities, and the assessment of the mental health provider who also opined the applicant was worldwide qualified for psychiatric purposes, which is suggestive there was no significant mental impairment that could interfere with military service or would preclude worldwide qualification at the time of TDRL re- evaluation; which could then lead an adjudicative body to conclude that his level of impairment in civilian social and industrial adaptability was indeed “mild.” Based upon the supplied evidence and the significant passage of time, the BCMR Medical Consultant did not find the evidence sufficient to permanently revise the findings of the IPEB which were previously accepted by the applicant in December 1996. A complete copy of the BCMR Medical Consultant’s evaluation is at Exhibit E. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: On 2 March 2016, copies of the Air Force evaluations were forwarded to the applicant for review and comment within 30 days (Exhibit F). As of this date, no response has been received by this office. FINDINGS AND CONCLUSIONS OF THE BOARD: Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. After a careful review of the applicant's contentions, documentation submitted in support of the request, and the available evidence of record, we are not convinced the applicant has provided sufficient evidence for us to conclude that he is the victim of an error or injustice. We also note the applicant did not file the 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 Correction of military records: claims incident thereto, and AFI 36-2603, Air Force Board for Correction of Military Records. Therefore, because we do not find it would be in the interest of justice to recommend granting relief, and the applicant has offered no plausible reason for the delay in filing the application, we cannot conclude it would be in the interest of justice to excuse the failure to timely file the application. Accordingly, we find the application untimely. 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-2015-01013 in Executive Session on 19 April 2016, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 10 March 2015, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, AFPC/DPFD, dated 16 December 2015. Exhibit D. Memorandum, DFAS, dated 26 January 2016. Exhibit E. Memorandum, BCMR Medical Consultant, dated 22 February 2016. Exhibit F. Letter, AFBCMR, dated 2 March 2016.