RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2016-03996

XXXXXXXXXX	COUNSEL: NONE

	HEARING: NO

APPLICANT REQUESTS THAT:

His DD Form 214, Certificate of Release or Discharge from Active Duty, Block 28, be corrected to reflect Disability Retirement versus Disability With Severance Pay (DWSP).

APPLICANT CONTENDS THAT:

He was discharged with a 10 percent disability severance for Bilateral Pes Planus and Degenerative Arthritis of Cuneiform and Navicular Bones, right foot, which should have been rated higher and he should have been awarded a disability retirement to include a rating for Irritable Bowel Syndrome, Sarcoidosis and Patellar Tendonitis.  The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

On 17 Nov 95, the Informal Physical Evaluation Board (IPEB) concluded that the applicant’s Bilateral Pes Planus and Degenerative Arthritis of Cuneiform and Navicular bones, right foot Existed Prior to Service (EPTS) with Service Aggravation and awarded the applicant a 10 percent disability rating with a recommended disposition, DWSP.

On 5 Dec 95, the applicant concurred with the findings and recommended disposition of the Physical Evaluation Board (PEB).

On 26 Jan 96, the applicant was furnished an honorable discharge and credited with 5 years, 6 months and 24 days of active service.

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisories at Exhibit’s C and D.

AIR FORCE EVALUATION:

AFPC/DPFDD recommends denying the application.  The applicant was referred to the Disability Evaluation System (DES) in Nov 95.  The IPEB reviewed his case file and determined he was unfit for continued military service for Bilateral Pes Planus and Degenerative Arthritis of Cuneiform and Navicular Bone Right Foot.  The IPEB recommended DWSP with a combined compensable disability rating of 10 percent.  The applicant concurred with the IPEB findings and was separated effective 24 Jan 96 with 5 years, 6 months and 24 days of service.  There is no indication an error or injustice occurred at the time the PEB processed the applicant’s disability case.  The complete advisory is at Exhibit C.

The AFRBA Medical Advisor recommends denying the application.  Under Title 10, United States Code (U.S.C), 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 that a person may have other medical conditions does not mean that the condition(s) is/are necessarily unfitting for continued military service at the time of the medical board processing.  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 PEB in 96, there was no evidence presented to indicate the applicant was further unfit and the applicant agreed with the findings at the time.  In addition, the Air Force and the VA disability systems operate under separate laws.  Under the Air Force system (Title 10, [U.S.C.]), Physical Evaluation Boards must determine whether an airman’s medical condition renders them unfit for duty and apply the rating provided by the VA at the time of disability processing (a snapshot in time).  That rating determines the final disposition (discharge with severance pay, placement on the temporary disability retired list, permanent retirement) and is not subject to change after the service member has separated.  Under the VA system (Title 38, U.S.C), the member may be reevaluated over the years and their rating may be increased or decreased in rating by the VA after separation from the service but does not warrant a change in the total compensable rating awarded at the time of the member’s separation.  For information, the DVA increased the Pes Planus Bilateral Feet condition (the only unfitting condition) from 10 to 30 percent; 14 years following the applicant’s separation from the US Air Force.  There was no impropriety in the disability process and, in this instance, it is not within the AFRBA’s scope of authority to change a disability rating.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board sent a copy of the Air Force evaluation to the applicant on 24 Aug 18 for comment (Exhibit E), and the applicant replied on 02 Oct 18.  In his response, the applicant contends his AF Form 618, Medical Board Report and AF Form 1185, Statement of Record Data had dates altered causing a disservice to him and the disability ratings received should have been higher. The applicant’s complete response is at Exhibit F.

THE BOARD CONCLUDES THAT:

1.  The application was not timely filed.

2.  The applicant exhausted all available avenues of non-judicial relief before applying to the Board.

3.   After thoroughly reviewing all Exhibits, it is the Board’s opinion that the applicant is not the victim of an error or injustice.  The Board concurs with the rationale and recommendations of AFPC/DPFDD and the AFRBA Medical Advisor and finds that a preponderance of the evidence does not substantiate the applicant’s contentions.  Furthermore, the Board also notes 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, and Air Force Instruction 36-2603, Air Force Board for Correction of Military Records (AFBCMR).  While the applicant asserts a date of discovery less than three years before the Board’s receipt of the application, the Board does not find the assertion reasonable.  The Board finds the application untimely and concludes it would not be in the interest of justice to excuse the delay.  Therefore, the Board recommends against correcting the applicant’s records.

THE BOARD RECOMMENDS THAT:

The applicant be informed the application was not timely filed; it would not be in the interest of justice to excuse the delay; and the application will only be reconsidered upon receipt of relevant evidence not already considered by the Board.

CERTIFICATION:

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2016-03996 in Executive Session on 03 Oct 18:

, Panel Chair
, Member
, Member

The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 27 Sep 16.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DPFDD, w/atchs, dated 24 Apr 17.
Exhibit D:	Advisory opinion, AFRBA Medical, dated 25 Jun 18.
Exhibit E:	Notification of Advisory, SAF/MRBC to applicant, dated 23 Aug 18.
Exhibit F:	 Applicant’s Response, w/atchs, dated 01 Oct 18.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings required by AFI 36-2603, paragraph 4.11.9.