RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2016-03530 

						COUNSEL:  NONE

HEARING DESIRED:  NO

APPLICANT REQUESTS THAT:

His record be corrected to reflect a medical retirement.  

APPLICANT CONTENDS THAT:

His discharge with severance pay instead of a medical retirement was an error.  He was found non-deployable and unfit for duty because of a medical condition.  He had 21 years of total service at that time and should have received a medical retirement.

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

STATEMENT OF FACTS:

The applicant initially entered the Regular Air Force on 17 Dec 82.

On 15 May 85, the applicant was furnished an honorable discharge, transferred to the Air Force Reserve and was credited with 2 years, 4 months, and 28 days of active service. 

On 16 May 85, the applicant entered the VA Air National Guard. 

On 2 Jul 02, the applicant’s commander requested a medical evaluation because of his concern of the applicant’s ability to perform the duties required of his primary AFSC (Security Police) with his current medical condition.  

On 3 Dec 02, a Medical Evaluation Board (MEB) recommended the applicant be referred to a Physical Evaluation Board (PEB).  

On 11 Dec 02, the applicant was issued AF Form 356, Findings and Recommended Disposition of USAF Physical Evaluation Board (PEB) (Informal) (IPEB): Member is unfit and recommended discharge with severance pay and a disability rating of 20 percent.     

On 25 Mar 16, the Department of Veterans Affairs (DVA) awarded him a 100 percent disability rating.    

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

AIR FORCE EVALUATION:

AFPC/DPFDD recommends denial, indicating there is no evidence of an error or an injustice.  The applicant was referred to the Informal Physical Evaluation Board (IPEB) for Physical Disability processing in Dec 02.  He was found unfit by the IPEB, with a recommendation of Discharge With Severance Pay (DWSP) with a combined compensable disability rating of 20 percent.  The applicant non-concurred and requested an appearance before the Formal Physical Evaluation Board (FPEB).  The FPEB upheld the DWSP findings, and the applicant concurred.  IAW U.S.C. Title 10 Chapter 61, Section 1208, the applicant would not qualify for a medical retirement based on 21 years of total service. Furthermore, he opted out of his satisfactory service retirement under 10 U.S.C 12732, and requested to be separated under 10 U.S.C. Chapter 61, Section 1203; as shown in his attached ISLRS election.  The applicant was separated effective 27 May 03 with 16.65 years of Active Service, and 5996 Retirement Points.  

A complete copy of the AFPC/DPFDD evaluation is at Exhibit C.

The AFBCMR Medical Advisor recommends denial, indicating there is no evidence of an error or an injustice.  The Medical Advisor concurs with the recommendation of AFPC/DPFDD to deny the applicant’s petition to supplant his medical separation with a medical retirement.  In order to have received a medical retirement, the unfitting medical condition(s) must reach at least a 30 percent disability rating threshold.  The applicant’s Type II Diabetes was rated at 20 percent by both the Military Department, under the Legacy Disability Evaluation System, and the DVA.  Although the applicant asserts he had achieved 21 years of service, he is advised that only an individual with 20 or more active years of service can be retired with less than a 30 percent disability rating.  However, this does not apply to individuals with 20 or more satisfactory years of service who receive less than a 30 percent disability rating

The applicant seeks a higher disability rating and a medical retirement, citing the 100 percent rating he has since received from the DVA.  However, this does not justify a like decision by the Military Department; particularly years after separation.  Operating under Title 10, United States Code (U.S.C.), the Military Department only assigns disability ratings to the medical condition(s) that caused career termination; and then only to the degree of impairment present at the “snapshot” time of final military disposition, and not based upon future progression of disease or injury.  On the other hand, operating under a different set of laws [Title 38, U.S.C.], the DVA is authorized to assign compensation ratings for all medical conditions determined service-incurred [not just those found unfitting]; without regard to its proven or demonstrated impact upon a member’s retainability or fitness to serve.  This is the reason why an individual may be discharged due to one condition, yet receive compensation ratings from the DVA for one or more additional medical conditions that were service-connected, but were not militarily unfitting at the time of discharge.  Moreover, the DVA is empowered to adjust the disability rating awards as the level of impairment or severity of a given medical condition may vary [improve or worsen] over the lifetime of the veteran; hence the 100 percent combined rating he currently holds.  The applicant has not met the burden of proof to warrant the desired change of the record; notwithstanding the fact that the 10 U.S.C., Section 12731 retirement option he was offered in 2003, but apparently declined, would have given him retired pay upon reaching the age of 60.

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

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 30 Oct 17 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.  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 AFPC/DPFDD and the AFBCMR Medical Advisor, and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice.  Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief.

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-2016-03530 in Executive Session on 21 Mar 18 under the provisions of AFI 36-2603, Air Force Board for Correction of Military Records:

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 26 Aug 16, w/atch(s).
	Exhibit B.  Excerpts from Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPFDD, dated 16 Oct 17, w/atch.
	Exhibit D.  Memorandum, AFBCMR Med Advisor, 26 Oct 17
	Exhibit E.  Letter, AFBCMR, dated 30 Oct 17.
	
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.