RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-01461 COUNSEL: NONE HEARING DESIRED: YES ___________________________________________________________________ APPLICANT REQUESTS THAT: His records be corrected to show he was awarded a disability retirement rather than being separated with “Disability, Severance Pay.” ___________________________________________________________________ APPLICANT CONTENDS THAT: He was not rated with the correct medical disability rating when he separated from the Air Force in 2004. The Medical Evaluation Board (MEB) rated his medical disabilities at 20 percent; however, the Department of Veterans Affairs (DVA) rated his medical disabilities at 60 percent. The DVA rating was based on the same medical disabilities as were rated by the MEB, but the rating differs by 40 percent. He recently found out that the MEB should have used the same rating scale as the DVA. In support of his request, the applicant provides a copy his AF Form 618, Medical Board Report, a copy of his DD Form 214, Certificate of Release or Discharge from Active Duty, a copy of his MEB summary, and a copy of his DVA rating. His complete submission, with attachments, is at Exhibit A. ___________________________________________________________________ STATEMENT OF FACTS: The applicant enlisted into the Regular Air Force on 21 Nov 00 and was progressively promoted to the grade of senior airman (E-3), having assumed that grade effective and with a date of rank of 21 Mar 03. At the end of 2002, the applicant reported abdominal pain which reflected a musculosketal etiology. In May 03, the applicant reported that he could not sleep and was fatigued. He was recommended for a sleep study. In Dec 03, the sleep study was completed which confirmed he had mild obstructive sleep apnea (OSA) as well as narcolepsy. On 21 Jan 04, the applicant’s case was referred to the Informal Physical Evaluation Board (IPEB). The IPEB found him unfit for further military service and recommended separation with severance pay with a 20 disability rating. On 17 Feb 04, the applicant accepted the unfit finding and a 20 percent disability rating determination. The applicant was honorably discharged on 2 Apr 04. His narrative reason for separation on his DD Form 214 reflects “Disability, Severance Pay.” He served 3 years, 4 months, and 12 days on active duty. ___________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSD recommends denial. DPSD addresses how the Department of Defense (DoD), operating under Title 10, United States Code (U.S.C.), only provides disability compensation for the medical condition(s) which is (are) the cause for career termination, and then only for the degree of impairment present at the time of final military disposition. It must be noted the Air Force disability boards must rate disabilities based on the member’s condition at the time of evaluation; in essence a snapshot of their condition at the time. It is then the charge of the DVA to pick up where the Air Force leaves off. The DVA is authorized to offer compensation for any illness or injury determined service-incurred or aggravated, without regard to its demonstrated impact upon a service member’s retainability, fitness to serve, or underlying reason for separation. In this case, the preponderance of evidence reflects that no error or injustice occurred during the applicant’s disability processing. The DPSD complete evaluation is at Exhibit C. The BCMR Medical Consultant recommends approval. The Medical Consultant states the National Defense Authorization Act of 2008 prohibited the use of any Service or DoD policies that resulted in a lower disability rating. Services are now required to utilize the Veterans Administration Schedule for Rating Disabilities (VASRD) in making its disability rating determinations. The applicant was found unfit for further military service due to OSA in 2004. His medical condition necessitated the use of a continuous positive airway pressure (CPAP) device; therefore, he should now receive a 50 percent disability rating for OSA and 20 percent disability rating for narcolepsy, for a combined rating of 60 percent, which qualifies him for a medical retirement. The Medical Consultant acknowledges that under today’s standards the applicant might have been considered for retention on active duty based upon his otherwise demonstrated ability to perform military service. However, since the applicant was found unfit under standards at the time of separation, the Medical Consultant opines that he should receive disability ratings for each condition. The BCMR Medical Consultant evaluation is at Exhibit D. ___________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 14 Sep 10 for review and comment within 30 days. As of this date, this office has received no response. ___________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file. 3. Sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice warranting corrective action. In this respect, after a thorough review of the evidence of record it appears the applicant’s medical condition was rated properly at the time of his separation. However, since his separation, the NDAA of 2008 subsequently prohibited the use of any policies that resulted in a lower disability rating than that authorized in the VASRD. Accordingly, the Board majority agrees with the assessment of the BCMR Medical Consultant and recommends the applicant’s records be corrected to reflect that he was medically retired from the Air Force by reason of a physical disability rather than “Disability, Severance Pay.” Accordingly, it is the Board majority’s opinion that his records should 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 issue involved. Therefore, the request for a hearing is not favorably considered. ___________________________________________________________________ THE BOARD RECOMMENDS THAT: A majority of the panel finds sufficient evidence of error or injustice and recommends the application be approved. The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that: a. On 2 Apr 04, he was found unfit to perform the duties of his office, rank, grade, or rating by reason of physical disability, incurred while he was entitled to receive basic pay; that the diagnosis in his case was Obstructive Sleep Apnea, VASRD Code 6847, rated at 50 percent and narcolepsy, VASRD Code 8108, rated at 20 percent, for a combined compensable rating of 60 percent; 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. b. On 2 Apr 04, he elected child only coverage under the Survivor Benefit Plan (SBP) based on full retired pay. c. On 3 Apr 04, he was retired by reason of physical disability under the provisions of AFI 36-3212. ___________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2010-01461 in Executive Session on 2 Nov 10, under the provisions of AFI 36-2603: By a majority vote, the Board voted to correct the records, as recommended. XXX voted to deny the applicant’s request and did not desire to submit a minority report. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 22 Mar 10, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSD, dated 21 May 10. Exhibit D. Letter, BCMR Medical Consultant, dated 10 Sep 10. Exhibit E. Letter, SAF/MRBR, dated 14 Sep 10.