RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2016-04169

	COUNSEL: 

	HEARING: YES

APPLICANT’S REQUEST.  He be found unfit at a 40% compensable rate based on his medical history of seizures under the Department of Veteran’s Affairs Schedule for Rating Disabilities diagnostic codes 8002, 8010 and 8011.

APPLICANT’S CONTENTION.  The Air Force failed to consider the high probability for residual grand mal and petit seizures, and removed him from the Temporary Disabilities Retirement List (TDRL) without considering the recommendations of his examining physician. Additionally, he had an impaired ability to make decisions and did not receive assistance of counsel in making the decision to accept the findings of fit for duty.  The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS.  The applicant was discharged from the regular Air Force on 2 Nov 04 in the grade of staff sergeant.  On 3 Nov 04, he was placed on the TDRL in the retired pay grade of SSgt.  

AFPC/DPPD’s letter dated 29 Mar 06, states in part that the Secretary of the Air Force directed the applicant’s name be removed from the TDRL.  The letter stated the applicant is now physically fit and has options for reappointment or reenlistment under the provisions of 10 USC 1211.

On 4 Apr 06, the applicant was removed from the TDRL and discharged in the grade of SSgt without entitlement to Disability Severance Pay.  

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

AIR FORCE EVALUATION.  AFPC/DP3SP recommends granting the application indicating the Informal Physical Evaluation Board found the member fit for duty without following the recommendations of his examining physician.  The complete advisory is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION.  The Board sent a copy of the Air Force evaluation to the applicant on 22 Sep 17 for comment (Exhibit D), and the applicant replied on 17 Oct 17.  In his response, the applicant concurs with AFPC/DP3SP findings and recommendations, with the exception of the statement, “At the time that applicant was on TDRL, his seizure disorder was considered, and found to be under control.” At the time he was placed on the TDRL, he still experienced seizures and was treated with medication as indicated on the treatment record, dated Jan 05, provided with his review.  The applicant’s complete response is at Exhibit E.

THE BOARD CONCLUDES:

1. The application was 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 the victim of an error and injustice.  The Board concurs with AFPC/DPFDC and finds that a preponderance of the evidence substantiates the applicant’s contentions.  Therefore, the Board recommends the applicant’s records be corrected as indicated below.

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.

THE BOARD RECOMMENDS: 

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that on 4 Apr 06, he was not removed from the Temporary Disabilities Retirement List (TDRL) and discharged without severance pay; but on that date, he was permanently retired with a compensable percentage for physical disability of 40 percent; that the diagnosis in his case was residual grand mal and petit mal seizures Veteran’s Affairs Schedule for Rating Disabilities (VASRD) codes 8002 and 8010; that the degree of impairment was permanent; that the disability was not due to intentional misconduct or willful neglect; that the disability was not incurred during a period of unauthorized absence; and that the disability was not received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war. 

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 AFBCMR Docket Number BC-2016-04169 in Executive Session on 11 Apr 18:

, Panel Chair
, Panel Member
, Panel Member

All members voted to correct the record as recommended.  The panel considered the following:

Exhibit A: Applicant’s application, DD Form 149, dated 4 Oct 16, w/atchs.
Exhibit B: Documentary evidence, including excerpts from official records.
Exhibit C: Advisory opinion, AFPC/DPFDC, dated 4 Aug 17, w/atchs.
Exhibit D: Notification of Advisory, AFBCMR to applicant, dated 22 Sep 17.
Exhibit E: Applicant’s response to Exhibit D, dated 17 Oct 17.

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