RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-02379

  						COUNSEL:  YES

						HEARING DESIRED:  YES 

APPLICANT REQUESTS THAT:

Through counsel, the following corrections to his record be made:
a.	The AF Form 356, Findings and Recommended Disposition of USAF Physical Evaluation Board, dated 18 Jun 14, Lines 9F and 10E be changed to read his disability was a direct result of a combat-related injury due to hazardous conditions.
b.	The Category II conditions listed on the AF Form 356, should be placed and rated as Category I, “Unfitting Conditions.”  
c.	The Special Order ACD-02563 be corrected to show his injuries are combat-related.  
d.	The Special Order ACD-02563 be corrected to show his dependent to read “Daughter” versus “Son” (administratively corrected). 
e.	List the Veterans Affairs Schedule for Rating Disabilities (VASRD) code for each impairment listed on the AF Form 356, Category I, and rate each.  

APPLICANT CONTENDS THAT:

The Air Force failed to rate each of his disabilities that contributed to his inability to perform his duties, his disabilities are a direct result of a combat-related injury due to hazardous conditions, and his AF Form 356 needs to appropriately reflect this and a correction to his dependent.  

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

STATEMENT OF FACTS:

The applicant initially entered the Regular Air Force on 17 Jun 98.  

On 14 May 13, the applicant was placed on duty and mobility restrictions.

On 3 Jul 13, the applicant’s commander wrote to the Medical Evaluation Board (MEB) stating the applicant was limited in his ability to lift heavy objects due to his back pain; however, his Post-Traumatic Stress Disorder (PTSD) related issues do not significantly affect his duty performance. 

On 8 Oct 13, the MEB convened and recommended the applicant’s case be referred to the Informal Physical Evaluation Board (IPEB) for chronic lower back pain.  

On 21 Oct 12 [sic], the applicant rebutted the MEB decision.  

On 18 Nov 13, the IPEB found the applicant unfit and recommended a discharge with severance pay and a disability rating of 10 percent for his lower back injury which was not considered to be combat-related.  His Category II conditions, major depressive disorder, right elbow, right knee, plantar fasciitis, and tinnitus, were not unfitting for duty.  

On 10 Mar 14, the applicant disagreed with the IPEB findings.

On 21 Mar 14, the Formal Physical Evaluation Board (FPEB) found the applicant unfit and recommended a permanent retirement with a disability rating of 40 percent for his lower back injury and major depressive disorder.  Neither were considered combat-related and his Category II conditions were not unfitting for duty.  

On 21 Mar 14, through counsel, the applicant agreed with the FPEB findings; however, requested a one-time reconsideration of his disability rating.  

On 3 May 14, the Department of Veterans Affairs (DVA), Providence Regional Office, provided the applicant with a proposed rating decision with a 50 percent combined rating for his unfitting disabilities.

On 8 May 14, the DVA revised their proposed rating decision to a 60 percent combined rating for his unfitting disabilities.

On 18 Jun 14, the FPEB found the applicant unfit and recommended a permanent retirement with a disability rating of 60 percent for his lower back injury and major depressive disorder.  Neither were considered combat-related and his Category II conditions were not unfitting for duty.  

On 30 June 14, the Secretary of the Air Force Personnel Counsel (SAF/PC), under the authority delegated by the Secretary of the Air Force, directed the applicant be permanently retired.  

Effective 29 Oct 14, the applicant was permanently disability retired with a compensable percentage for physical disability of 60 percent and was credited with 16 years, 4 months, and 12 days of active service.   

The remaining relevant facts pertaining to this application are contained in the memoranda prepared by the Air Force offices of primary responsibility (OPR) and are attached at Exhibits C and D.  

AIR FORCE EVALUATION:

AFPC/DPFD recommends denial indicating there is no evidence of an error or an injustice during the applicant’s disability process or at the time of separation and no evidence in the record the applicant’s disabilities were a direct result of a combat-related injury due to hazardous conditions.  DoDI 1332.39, Ch 6.1.1-7, states, “The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, Military Service.  Unlike the DVA, the Military Departments must first determine whether a Service member is fit to reasonably perform the duties of the member’s office, grade, rank, or rating.  Once a Service member is determined to be physically unfit for further Military Service, VASRD percentage ratings are applied to the unfitting condition(s).  Conditions that do not themselves render a Service member unfit for military service will not be considered for determining the compensable disability rating unless they contribute to the finding of unfitness.”  The applicant’s chronic lower back pain was the only condition referred to the MEB.  The FPEB subsequently included his major depressive disorder as unfitting; however, found the remaining Category II conditions not unfitting for duty.

A complete copy of the AFPC/DPFD evaluation, with attachments, is at Exhibit C.

The BCMR Psychiatric Advisor recommends denial indicating there is no evidence of an error or an injustice to warrant the desired change to the record.  The applicant’s mental health consultants wrote from 2012 through 2014, when the evidence for disability was being compiled, that he was improving and that the majority of his stress was related to his supervisory experience in Japan and therefore upon leaving Japan his stress would improve.  This was the evidence that the Air Force saw at the time.  The Compensation and Pension (C&P) evaluation done in 2013 was a single visit as compared to the numerous visits over two years where the primary cause of the applicant’s stress was his experience of conflict with his supervisor.  Furthermore, there was insufficient evidence to support his stress was combat-related.

A complete copy of the BCMR Psychiatric Advisor evaluation, with attachment, is at Exhibit D.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant’s counsel on 23 Aug 16 and on 5 Oct 16 for review and comment within 30 days (Exhibit E).  As of this date, no response has been received by this office.

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was timely filed.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice beyond the relief provided administratively.  We took notice of the applicant’s complete submission in judging the merits of the case; however, we agree with the opinion and recommendation 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 of injustice.  Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief.

4.  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 applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and 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 Docket Number BC-2015-02379 in Executive Session on 8 Nov 16 under the provisions of AFI 36-2603:

	, Panel Chair
	, Member
	, Member

The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-02379 was considered:

	Exhibit A.  DD Form 149, dated 3 Jun 15, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPFD, dated 27 Aug 15, w/atchs.
	Exhibit D.  Memorandum, BCMR Psychiatric Advisory, dated
		2 Aug 16, w/atch.
	Exhibit E.  Letter, AFBCMR, dated 23 Aug 16 and 5 Oct 16.

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.