RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-04450 COUNSEL: NONE HEARING DESIRED: YES _________________________________________________________________ APPLICANT REQUESTS THAT: 1. His DD Form 214, Certificate of Release or Discharge from Active Duty, be corrected to reflect $121,600 severance pay rather than $142,329.36. (Administratively Corrected) 2. His 20 percent disability rating received at the time of his separation, be changed to a 75 percent disability rating in accordance with the Congressional Order to review any service member’s generated disability rating of 20 percent or less who were separated as medically unfit since 11 September 2001. _________________________________________________________________ APPLICANT CONTENDS THAT: His Air Force appointed disability lawyer did not provide adequate representation and did not study his case to present a coherent presentation. His current Department of Veterans Affairs (DVA) disability rating is 90 percent. In support of his appeal, the applicant provides copies of a Request for Special Separation Pay Information memorandum, his DVA Rating Decision, and medical records. The applicant’s complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant is a former member of the Air Force Reserve who served as a helicopter pilot in the grade of captain (O-3). On 19 May 2005, the applicant was evaluated by a Medical Evaluation Board (MEB) and based on the diagnosis of Myofascial Pain Syndrome, referred him to an Informal Physical Evaluation Board (IPEB). On 11 July 2005, the IPEB reviewed the case and recommended discharge with severance pay with a disability rating of 20 percent. On 28 July 2005, the applicant non-concurred with the findings and requested a formal hearing with counsel. The Formal Physical Evaluation Board (FPEB) hearing was scheduled for 1 September 2005. His appointed attorney met with the applicant and wrote up an FPEB contention slip in lieu of filing for consideration at the hearing. The applicant wanted to change the Veteran’s Administration Schedule for Rating Disabilities (VASRD) code from Myofascial Pain Syndrome to Fibromyalgia, with a 40 percent rating, and to add under Category I the following unfitting conditions for compensation and rating: 1) Tenosynovitis – VASRD 5024, with bilateral factor for 20 percent rating, and 2) Irritable Bowel Syndrome – VASRD 7319 for a 10 percent disability rating; for a combined disability rating of 50 percent and permanent retirement. Due to an administrative error, the applicant’s medical records did not arrive in time for the scheduled hearing; therefore the FPEB was cancelled. Once the medical records were received, the options were to reschedule a new hearing date or have his hearing held in absentia and he be represented by counsel. On 6 September 2005, the applicant elected to waive his request for a formal hearing and accept the recommended disposition of the IPEB. On 9 September 2005, the Secretary of the Air Force directed the applicant be separated from active service. On 22 November 2005, the applicant was honorably discharged with severance pay and a 20 percent disability rating. He served 13 years, 10 months, and 22 days on active duty. The DVA awarded him 50 percent for muscle tension headaches, 30 percent for Irritable Bowel/Colon Syndrome, and 20 percent for Carpal Tunnel Syndrome Left; for a 90 percent combined rating. As noted on his DD Form 149, the DVA has not rated him for Post Traumatic Stress Syndrome, Cervical Dystonia or Sciatica. The remaining relevant facts, extracted from the applicant military service records, are contained in the evaluations prepared by the Air force offices of primary responsibility at Exhibits C and D. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSD (USAF Physical Disability Division) recommends denial. DPSD states the preponderance of evidence reflects that no error or injustice occurred during the disability process or with the rating applied at the time of the applicant’s disability evaluation. DPSD indicates that service-connected medical conditions incurred, but not found unfitting while still on active duty, are not compensated under Title 10, United States Code (USC); however, under Title 38, USC, the DVA may compensate veterans for these conditions. The DVA is chartered to provide continual medical care for veterans once they leave active duty. Under Title 38, USC, the DVA may increase or decrease a member’s disability rating based on the seriousness of the medical condition throughout his or her life. The complete DPSD evaluation is at Exhibit C. AFPC/JA recommends denial. JA indicates they agree with the DPSD evaluation. JA states that generally, an applicant must file a request for relief within three years after the alleged error or injustice was discovered or, with due diligence, should have been discovered. The applicant waited almost six years to file his present appeal. He argues that he did not “discover” the error or injustice until 21 October 2008, when he was told he could challenge the disability decisions by a member of the Wounded Warrior Program. However, the applicant possessed all the information necessary to pursue his claim long before the statue of limitations expired, and he offers no meaningful explanation for why he waited almost six years to address these contentions to the AFBCMR. Ignorance of the process in the context of a failure to inquire has been routinely rejected by the courts, and flies in the face of the “reasonable man” doctrine and, if carried to its logical conclusion, would render the three year provision for filing under Title 10, USC, Section 1552(b) virtually meaningless. The applicant’s delay has permitted memories to fade and relevant records to be destroyed or lost, preventing the government from defending itself from his allegations. Aside from the timeliness issue, the applicant’s claim also fails on the merits. He would have us believe that he relied exclusively and extensively on his counsel’s advice to make his final decision to waive the FPEB hearing and accept the IPEB results, but that is not so. Contrary to his claim, the applicant in his request to the AFBCMR, specifically points out that he did not trust his counsel, and that he didn’t think his attorney would provide an adequate representation of his interest in his absence. Therefore, the logical conclusion is that the decision the applicant made at that time were driven by his own personal interest and not by the counsel’s incompetent and incorrect advice or heavy handedness, as he wants us to believe. The fact the applicant may now regret his decision does not constitute an error or injustice that would justify allowing him to revisit that decision six years after it was tendered. Even if the applicant’s counsel had somehow been mistaken or negligent in his advice, there would be no grounds for correction because the IPEB decision appropriately focused on those unfitting medical conditions that referred the applicant into the Disability Evaluation System (DES). Although the applicant may have been treated for other medical issues while on active duty, the MEB did not refer them to the IPEB because they were not unfitting conditions affecting the applicant’s ability to perform the duties of his “office, grade, rank, or rating.” As such, contrary to his contentions, no evidence has been provided that would lead them to believe that the IPEB’s decision was made without taking all of the appropriate factors into consideration. The complete JA evaluation is at Exhibit D. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 29 February 2012 for review and comment within 30 days (Exhibit E). 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. Insufficient relevant evidence has been presented to demonstrate the existence of an error or an injustice in regard to the applicant’s request to increase his disability rating at the time of his separation from active duty. We note the Air Force office of primary responsibility has administratively corrected the applicant’s DD Form 214 to reflect the correct amount of severance pay he received; therefore, we will only address that portion of his request pertaining to his disability rating. After a thorough review of the record and the applicant's submission, we find no error or injustice in regard to his disability processing or the final rating applied. It appears the applicant believes that based on the decisions of the DVA to award him a combined compensable disability rating of 90 percfent, the final determination by the Air Force is in error or unjust. This may be based on an apparent misunderstanding of the two separate determinations made under the provisions of two different statutory bases. In this respect, we note the military DES, operating under Title 10, is established to maintain a fit and vital force and can compensate for unfitting conditions which render a member unfit and unable to perform their military duties, and then only to the degree of severity at the time of separation and not based on future possibilities. No change in disability ratings can occur after permanent disposition, even though the condition may become better or worse. Although the Air Force is required to rate disabilities in accordance with the VASRD, the DVA operates under a totally separate system with a different statutory basis. The DVA, operating under Title 38, rates for any and all service-connected conditions, to the degree they interfere with future employability, without regard to whether it was unfitting for continued military service. The DVA is also empowered to reevaluate veterans periodically for the purpose of changing their disability awards if their level of impairment varies over time. Thus, the two systems represent a continuum of medical care and disability compensation that starts with entry on to active duty and extends for the life of the veteran. In view of this and since the recommendations and opinions of the Air Force offices of primary responsibility are supported by the evidence of record, we adopt their rationale as the basis for our conclusion that 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 relief beyond that already administratively corrected. 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. Therefore, the request for a hearing is not favorably considered. _________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that 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-2011-04450 in Executive Session on 28 June 2012, under the provisions of AFI 36-2603: The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2011-04450: Exhibit A. DD Form 149, dated 13 Jun 11, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSD, dated 19 Dec 11. Exhibit D. Letter, AFPC/JA, dated 18 Jan 12. Exhibit E. Letter, SAF/MRBR, dated 29 Feb 12.