RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2016-02834

						COUNSEL:  NONE

						HEARING DESIRED:  YES 

APPLICANT REQUESTS THAT:

1. His Individual Unemployment (IU) status be retroactively established effective as of 22 Feb 11.  

2. His retired pay status change in 2014 from Combat-Related Special Compensation (CRSC) to Concurrent Retirement and Disability Payment (CRDP), be voided, and he receive the appropriate compensation commensurate with this change.

3. His knee injury suffered in a crash landing incident during combat training be classified as a combat related injury.

4. His Bilateral Senorineural Hearing Loss be classified as a combat-related medical condition.  

APPLICANT CONTENDS THAT:

Mistakes were made by the Department of Veterans Affairs (DVA) and the Air Force Personnel center (AFPC) regarding his CRSC status.  Both agencies discovered their errors, but the DFAS refuses to honor these mistakes and compensate him accordingly.  

His knee injury suffered in an aircraft crash landing at Eglin AFB, FL, was never recorded in his record.  This was due to the underlying atmosphere not to report or record medical issues for fear of grounding.  His hearing impairment in both ears originated in Vietnam, but the status changed to right ear only, hearing impairment. 

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

STATEMENT OF FACTS:

The applicant initially entered the Regular Air Force on 17 Jul 59.

On 31 Jul 89, the applicant was furnished an honorable discharge, retired effective 1 Aug 89, and was credited with 30 years and 14 days of active service, to include 3 years, 2 months, and 18 days of foreign service.   

According to documents submitted by the applicant, the following dates/actions regarding the matter in question took place:  

•	On 17 Jun 14, the DVA, St. Petersburg Regional Office, in responding to the applicant’s “Notice of Disagreement,” dated 10 Aug 12, found him entitled to IU, effective 22 Feb 11.  

•	On 21 Oct 14, AFPC/DPFDC partially approved his CRSC claim for a disability rating of 60 percent.  

•	On 28 Apr 15, DFAS advised the applicant’s Congressman regarding his inquiry pertaining to the applicant’s entitlement to CRSC instead of CRDP.  Their records showed the applicant was in receipt of CRSC in 2006, but during open season in 2011, he chose to switch to CRDP and has been receiving CRDP through 2015.  DFAS advised that they do not have the authority to change his military pay records without authorization from the AFBCMR.  

•	On 4 Jun 15, DFAS followed-up with the applicant’s Congressman opining they were not able to change the applicant’s election from CRDP to CRSC based on information from the CRSC/TDRL office.  Open Season elections can only be made by the member.

•	On 23 Sep 15, DFAS denied his request to change his entitlement from CRDP to CRSC.  They advised him he has the right to appeal their determination to the DOHA within 30 days of the date of their letter.  

•	On 16 Oct 15, the Branch Chief CRSC/TDRL wrote a memo for Record, admitting that he may have miscounseled the applicant when explaining the CRSC/CRDP process, resulting in him not completing a 2015 “open season” letter changing his CRDP to CRSC.  

•	On 19 Oct 15, he was granted an extension to 23 Nov 15, to submit his appeal to DOHA.  

On 14 Nov 16, AFBCMR advised the applicant they were aware he had an appeal pending with the Defense Office of Hearings and Appeals (DOHA) for the same issue as his DD Form 149 application, and that it would have to be resolved prior to filing any AFBCMR appeal concerning the same issue, if needed (Exhibit C).  

On 24 Jan 17, the applicant responded to AFBCMR by submitting DOHA’s 11 Jan 17 decision, disallowing his claim for CRSC retroactive to 23 Feb 11.  He refutes DOHA’s findings, and opines he has exhausted all administrative remedies, and believes it is now time for the AFBCMR to correct the issue (Exhibit D).  

The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the AFBCMR Medical Advisor, which is attached at Exhibit E.    

AIR FORCE EVALUATION:

AFBCMR Medical Advisor addresses only the applicant’s knee and hearing impairment issue in this advisory review.  First, addressing the applicant’s knee, a documented episode of care, dated 5 Jan 65, discloses that the applicant, a “co-pilot in an A1E,” was “on Range 52 when [his] A/C [aircraft] lost power,” with “gear up landing on soft dirt.”  The medical provider documented, “No injury.  Feels OK.  Lucid oriented x 3, calm, and cooperative.  The incomplete entry [missing page] does not disclose an examination of the upper and lower extremities, nor offers a window into a final diagnostic assessment or plan for treatment, if any.  No other service medical documentation is supplied addressing the applicant’s alleged knee injury or evidence of any residual impairment requiring follow-up care during his military service.
As a former Air Force flight surgeon, the AFBCMR Medical Advisor is familiar with the edict to “keep ’em flying,” among the Air Force flying medical community.  However, the treating physician in this case either provided a truthful assessment of the applicant’s clinical status in the record, e.g., “no injury” and “feels OK,” or was complicit in a serious breach of duty and flight safety if the applicant was truly injured in a manner requiring proper treatment and possible duties not including flying.  Subsequently, the applicant underwent total right knee joint replacement on 20 May 13.  As a result of the knee replacement, the DVA increased his 10 percent service-connected disability rating to 100 percent during post-operative convalescence and rehabilitation, but later reduced it to 30 percent disability rating.  The Medical Advisor found the evidence submitted insufficient to declare the applicant’s knee condition was a direct result of combat or was caused by an Instrumentality of War.  

Notwithstanding the recommendation above, the Medical Advisor opines the evidence submitted suggests that the applicant did suffer from bilateral hearing loss on 29 Jan 13, and that it was more likely than not, still combat-related, as determined in 2006 by the CRSC authority.  Absent evidence of external factors unrelated to the original finding and cause, it stands to reason that the combat-related designation should, again, be applied to the bilateral sensorineural hearing loss.  Since, however, the audiogram of 29 Jan 13, was ruled “not adequate for rating purpose,” he recommends that the applicant obtain a more current or more recent audiogram with a definitive diagnostic assessment by an audiologist, to identify any significant threshold shift or other pathology since that time; for the purpose of any subsequent appeals to the DVA or other agencies of the government as necessary.

A complete copy of the AFBCMR Medical Advisor evaluation is at Exhibit E.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant refutes virtually every point made by the AFBCMR Medical Advisor and argues he took a shallow approach addressing his issues, and he was dismayed by the AFBCMR Medical Advisor’s inept conclusions.  In support of his response, the applicant reiterates his A1E aircraft crash landing and the medical examination following the accident.  He argues that he had no right knee issues before the crash landing, and he has had numerous and increasing issues since that accident.  He does agree with the AFBCMR Medical Advisor’s evaluation that his 6 Jan 13 audiogram was “inadequate for rating purposes.” 

A complete copy of the applicant’s rebuttal is at Exhibit G.  

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.  Specifically, we agree with the opinion and recommendation of the AFBCMR Medical Consultant that the evidence submitted is insufficient to declare the applicant’s knee condition was a direct result of combat or was caused by an Instrumentality of War.  Regarding the applicant’s bilateral hearing loss, we agree with the AFBMCR Medical Consultant that the applicant should obtain a current audiogram with a definitive diagnostic assessment by an audiologist, for subsequent appeals to the DVA or other agencies of the government as necessary.  Without such assessment by the DVA, the Board found it would be outside the Board’s purview to provide a CRSC finding for a condition not currently rated by the DVA.  Additionally, regarding the applicant’s requested relief for his Individual Unemployment (IU) status be retroactively established effective as of 22 Feb 11; Section 1414 of 10 U.S.C., requires an annual open season for retirees who are potentially eligible for both CRDP and CRSC (IU eligible).  The applicant qualifies for both, and records revealed that he was in receipt of CRSC from 2006 through 2011, when he voluntarily elected CRDP during the 2012 open season.  However, the DoD Financial Management Regulations, Volume 7B, Chapter 64, states that changes in the amount of a member’s entitlement to either CRDP or CRSC, which occur after the close of an annual open season period, shall not be the basis to alter a current election prior to the next annual open season.  This includes changes in a member’s VA disability rating, which have a retroactive effective date prior to the date DFAS is notified of the change.  Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief relating pertaining to the applicant’s knee injury suffered in an aircraft crash landing, his bilateral hearing loss, and retroactive IU status to 2011.

4.  However, sufficient relevant evidence has been presented to demonstrate the existence of an injustice.  After a thorough review of the evidence of record and the applicant’s complete submission, to include his rebuttal; we believe the applicant is the victim of an error or injustice.  Specifically, we believe a preponderance of the evidence substantiates the applicant was erroneously counseled in 2014 by the Air Force CRSC/TDRL Branch Chief that he did not have to respond to the 2015 Open Season Election Letter to request a change from CRDP to CRSC.  This erroneous counseling resulted in the applicant’s entitlement remaining in CRDP (he elected CRDP in the 2012 Open Season and passively elected CRDP from 2013 through 2015), as Open Season elections can only be made by the member in accordance with United States Code and DoD guidance.  The Board found, had he not been miscounseled, the applicant would have elected CRSC during the 2015 Open Season.  Therefore, we recommend the applicant’s records be corrected as indicated below.  

5.  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 RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that he made a timely election in 2014 changing from Concurrent Retirement and Disability Payment (CRDP) to Combat-Related Special Compensation (CRSC) for the 2015 Open Season.   

The following members of the Board considered AFBCMR Docket Number BC-2016-02834 in Executive Session on 30 Nov 17 under the provisions of AFI 36-2603, Air Force Board for Correction of Military Records:

All members voted to correct the records as recommended.  The following documentary evidence pertaining to AFBCMR Docket Number BC-2016-02834 was considered:

	Exhibit A.  DD Form 149, dated 12 Jul 16, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, AFBCMR, dated 14 Nov 16.
	Exhibit D.  Letter, Applicant, dated 24 Jan 17, w/atchs.
	Exhibit E.  Memorandum, AFBCMR Medical Advisory, 
			  dated 23 Aug 17.
	Exhibit F.  Letter, AFBCMR, dated, 13 Sep 17.
	Exhibit G.  Applicant’s Rebuttal, dated 6 Oct 17, w/atchs.
	Exhibit MISC.  DoDFMR Volume 7B, Chapter 64 extract.

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, AFBCMR Docket Number BC-2016-02834.