RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2016-00886 

   						COUNSEL:  NONE

HEARING DESIRED:  NO 

APPLICANT REQUESTS:

His medical separation be changed to a medical retirement. 

APPLICANT CONTENDS:

He was separated with a 20 percent disability rating.  In a post-separation reevaluation, the Department of Veterans Affairs (DVA) rated him with 70 percent service-connected disabilities.

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

STATEMENT OF FACTS:

The applicant served in the grade of captain. 

On 25 Jul 13, an MEB reviewed the applicant’s lower back pain problems and recommended his case be referred to an Informal Physical Evaluation Board (IPEB). 

On 24 Sep 13, the Department of Veterans Affairs (DVA) rated his disability at 10 percent. 

On 26 Sep 13, an IPEB found the applicant unfit for further military service due to chronic lower back pain, and recommended he be discharged with severance pay (DWSP) with a 10 percent disability rating. 

On 14 Nov 13, a Formal PEB (FPEB) upheld the IPEB recommendation of DWSP, accepting the DVA disability rating of 10 percent.  The applicant concurred with the FPEB finding on 18 Nov 13.  

On 28 Jan 14, the applicant was furnished an honorable discharge, with a narrative reason for discharge of “Discharge with Severance Pay (DWSP),” and was credited with 10 years, 11 months and 20 days of total active service.  

The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit C.    

AIR FORCE EVALUATIONS:

The AFPC Disability Office recommends denial, indicating there is no evidence of an error or an injustice.  In accordance with Title 10, United States Code (USC), Physical Evaluation Boards must determine if a member’s condition(s) renders them unfit for continued military service relating to their office, grade, rank or rating.  The fact a person may have other medical conditions does not mean the condition(s) is/are necessarily unfitting for continued military service.  To be unfitting, the condition(s) must be such that it alone precludes the member from fulfilling their military duties. 

At the time of the applicant’s medical board there was no such evidence provided.  He was found unfit solely for his low back condition.  In addition, disability processing is based on a “snapshot in time” and does not take into account any exacerbations or progressions of a disability that may have occurred following the service member’s release from active duty and is not subject to rating change after the service member has separated.  On the post board DVA rating the applicant provided, dated 22 Jun 15, page 5, shows the boardable condition; lower back continues at 10 percent, hence no change is warranted in the prior PEB findings.

Recommend denial of the applicant’s request.  There is no indication an error or injustice.    

A complete copy of the AFPC Disability Office evaluation is at Exhibit C.

The AFBCMR Medical Consultant recommends denial, indicating there is no evidence of an error or an injustice.   The applicant experienced a near eight year history of chronic low back condition, attributed to an L5 pars intervertebral abnormality.  An MEB was conducted for the sole medical condition, chronic low back pain.  The MEB narrative summary did not reveal other conditions that warranted inclusion in the MEB process; nor did the applicant claim additional conditions and he declined an impartial review of his case. 

None of the applicant’s Post-Deployment Questionnaires in the supplied service treatment record indicated overt signs of an impending mental impairment disclosed at the time; although he admitted exposure to dead bodies during a deployment to Afghanistan on one of his documents.  Importantly, no evidence was found he was disqualified for worldwide duty due to a mental disorder.  The applicant also asserted, “Most of the awarded PTSD I suffer is from the close attacks during my deployments, but my records states PTSD (non-combat).”  None of this information has been identified in the supplied record to confirm existence of a potentially disqualifying medical condition that warranted inclusion in the MEB/PEB process; as would otherwise be identified by introduction of additional AF Forms 469.  Despite introduction of the aforementioned other issues, the IPEB found the applicant unfit only for his chronic back pain; while awaiting the disability rating assignment under authority of the DVA.  The DVA ultimately assigned a 10 percent rating for the applicant’s back condition.  The applicant appealed to the FPEB to be returned to duty.  The applicant’s senior leadership had previously recommended retention with an Assignment Limitation Code.  Several colleagues also recommended the applicant’s retention in individual letters to disability authorities.  The FPEB also found the applicant unfit with no change in the 10 percent disability rating.  In a rating decision issued on 13 Sep 13, the DVA assigned a combined rating of 20 percent, which included the 10 percent rating the Military Department did NOT find unfitting.  Subsequent to the aforementioned assessments and determinations, the DVA listed in a series of medical conditions on cover letter dated 22 Jun 15, for which the applicant was awarded service connection and a 30 percent rating for PTSD (also claimed as Adjustment Disorder with Anxiety), effective 29 Jan 14.

Addressing the applicant’s expressed desire for a medical retirement, the military Disability Evaluation System (DES), established to maintain a fit and vital fighting force, can by law, under Title 10 USC only assign a compensation rating 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 time of separation and not based on future occurrences or progression of disease.  Department of Defense Instruction 1332.38, Physical Disability Evaluation, Enclosure 3, Part 3, Standards For Determining Unfitness Due To Physical Disability Or Medical Disqualification, paragraph E3.P3.2.1, reads: ”A Service member shall be considered unfit when the evidence establishes that the member, due to physical disability, is unable to reasonably perform the duties of his or her office, grade, rank, or rating (hereafter called duties) to include duties during a remaining period of Reserve obligation.”  Indeed, at the time of the applicant’s MEB/PEB action, he wanted to be retained and had been selected for promotion to Major; after receiving a “Definitely Promote” recommendation from the Commanding General 59th Medical Wing, based upon his superlative performance history.  On the other hand, operating under a different set of laws (Title 38, USC), 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, or the narrative reason for separation.  With this in mind, Title 38, U.S.C., 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 unfit for military service for one reason and yet sometime thereafter receive a compensation rating from the DVA one or more additional medical conditions that were service-connected, but not proven militarily unfitting at the time of release from military service.  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; as shown by the increased rating for headaches from 0 percent to 30 percent.

Insufficient evidence is presented to indicate any of the applicant’s medical conditions, other than chronic back pain, precluded him from reasonably performing the duties of his office, grade, rank, or rating.  While it may appear counterintuitive a condition rated at 30 percent would not have caused an interference with military service, the Medical Consultant found no objective evidence that established, or should have established, a cause and effect relationship between the termination the applicant’s service and any additional medical conditions beyond his back pain.

A complete copy of the AFBCMR Medical Consultant’s evaluation is at Exhibit D.

APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

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

ADDITIONAL AIR FORCE EVALUATION:

The AFBCMR Psychiatric Advisor recommends denial, indicating there is no evidence of an error or an injustice.  This psychiatric consultant thoroughly reviewed applicant’s records and concurs with the opinion and recommendation of the AFBCMR Medical Consultant.  It is fortunate the applicant sought help at the DVA and was subsequently diagnosed with PTSD for which he hopefully is receiving appropriate treatment.  However, this evidence does not invalidate the appropriateness of the military discharge disposition and the decisions of the Military Department did not represent an error or injustice. Recommend denial.  

A complete copy of the AFBCMR Psychiatric Advisor’s evaluation is at Exhibit F.

APPLICANT'S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATION:

A copy of the additional Air Force evaluation was forwarded to the applicant on 23 Jul 18 for review and comment within 30 days (Exhibit G).  As of this date, no response has been received by this office.

THE BOARD CONCLUDES:

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.  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 offices of primary responsibility (OPRs) 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.

THE BOARD DETERMINES:

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-2016-00886 in Executive Session on 5 Sep 18 under the provisions of AFI 36-2603:

Panel Chair  
Panel Member
Panel Member

The following documentary evidence pertaining to AFBCMR Docket Number BC-2016-00886 was considered:

	Exhibit A.  DD Form 149, dated 26 Feb 16, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
Exhibit C.  Memorandum, AFPC Disability Office, dated 15 Jun 16.
Exhibit D.  Letter, AFBCMR Medical Consultant, dated 16 Sep 16.
	Exhibit E.  Letter, AFBCMR, dated 16 Nov 16.
	Exhibit F.  Letter, AFBCMR Psychiatric Advisory, dated 12 Jun 18. 
	Exhibit G.  Letter, AFBCMR, dated 23 Jul 18.

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