RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-01813 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: Her honorable discharge be changed to a disability discharge. ________________________________________________________________ APPLICANT CONTENDS THAT: The Department of Veterans Affairs (DVA) has rated her at 30 percent for her service connected disabilities. Her injuries were the direct result of a deployment to Iraq. She conducted 20 battlefield circulation missions, logging nearly 3,000 miles through Iraq from Aug 07 through Feb 08. She was identified for separation during a reduction in force (RIF) board and decided to separate under the Force Management Program and received Voluntary Separation Pay. She is now being told that she must pay back her entire VSP before receiving VA compensation. She will not receive VA disability payments until 2037. Also, if she is medically retired, she will qualify for Combat Related Special Compensation (CRSC). In support of her request, the applicant provides copies of correspondence related to her DVA rating decision and copies of her temporary duty orders and a decoration certificate related to the noted deployment to Iraq. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: According to the applicant’s military personnel records, she served in the Regular Air Force in the grade of captain (O-3). On 22 Jun 10, the applicant was honorably discharged due to force shaping and transferred to the non-obligated/non- participating ready personnel section (NNRPS) of the Air Reserve Personnel Center. She received separation pay in the amount of $186,860.52 and was credited with 14 years and 7 days of total active service. According to information provided by the applicant, on 4 May 11, the DVA notified her of their decision to issue her a combined compensable disability rating of 30 percent for her cervical strain (claimed as back pain) and lumbar spine strain (claimed as back pain). The military service disability system, operating under Title 10, United States Code (USC), can only offer compensation for those service incurred diseases or injuries which specifically rendered a member unfit for continued active service and were the cause for career termination, and then only for the degree of impairment present at the "snap shot" time of separation and not based on future disease progression. Thus, the mere presence of a medical condition during military service does not automatically constitute a basis for a disability separation or retirement. On the other hand, the DVA disability system, operating under Title 38, USC, takes into account physical conditions that, although not unfitting at the time of separation, may later progress in severity and alter the individual’s lifestyle and future employability. With this in mind, Title 38, USC, provides the DVA authority to award compensation ratings for conditions that were not unfitting for military service at the time of separation. On 22 Nov 11, the applicant was voluntarily reassigned from NNRPS to an Air Force Reserve unit as a participating reserve member. The remaining relevant facts pertaining to this application are described in the letter prepared by the Air Force office of primary responsibility (OPR) which is attached at Exhibit C. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSOS recommends denial, indicating there is no evidence of an error or injustice. The applicant’s DD Form 214 accurately reflects the reason for her separation. She was separated from the Air Force on 22 Jun 10 under the provisions of the Calendar Year 2010 Officer Reduction in Force and was provided Voluntary Separation Pay (VSP) with an honorable discharge. She was issued a DD Form 214, which indicated she was separated due to Force Shaping – VSP. The DD Form 214 was properly completed. The applicant did acknowledge that if she later became eligible for disability compensation through the DVA, the DVA would withhold payments until the amount withheld equals her VSP payment. While the applicant was notified that Air Force policy mandates a medical examination in certain circumstances in accordance with AFI 48-123, Medical Examinations and Standards, the medical treatment facility determines whether such an examination is mandatory or optional. Based on the available records, it could not be determined if the applicant received a medical examination or whether such examination was deemed mandatory or optional. A complete copy of the AFPC/DPSOS evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to applicant on 9 Jan 12 for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit D). ________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has not 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 error or injustice. It appears the applicant believes the DVA's decision to award her a 30 percent disability rating for cervical strain and lumbar spine strain substantiates that she should have been discharged for physical disability rather than being discharged due to force shaping. However, after a thorough review of the evidence of record and the applicant’s complete submission, we are not persuaded that she should have been found unfit for continued military service and furnished a disability separation. In this respect, we note the military service disability system can only offer compensation for those service incurred diseases or injuries which specifically rendered a member unfit for continued military service and were the cause for career termination. However, other than her own assertions, the applicant has provided no evidence whatsoever that her medical conditions, while service related according to the DVA, rendered her unfit for continued military service. In fact, the applicant’s subsequent affiliation with an Air Force Reserve unit, an action predicated upon her fitness to serve, appears to indicate the contrary. We note the comments of the Air Force office of primary responsibility indicating they were unable to determine if the applicant received a medical examination or whether such examination was deemed mandatory or optional; however, based on the presumption of regularity in the conduct of governmental affairs, absent evidence to the contrary, we must assume the applicant was offered the appropriate medical examination at the time of her discharge in accordance with the provisions of AFI 48-123, Medical Examinations and Standards. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application. ________________________________________________________________ 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-2011-01813 in Executive Session on 22 Feb 12, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 9 May 11, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSOS, dated 6 Jan 12. Exhibit D. Letter, SAF/MRBR, dated 9 Jan 12.