RECORD OF PRPOCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-00557 COUNSEL: NONE HEARING DESIRED: YES _________________________________________________________________ APPLICANT REQUESTS THAT: His record be corrected to show he was retired by reason of “medical retirement” rated at 100 percent rather than “voluntary length of service.” _________________________________________________________________ APPLICANT CONTENDS THAT: The Department of Veterans Affairs (DVA) rated him at 90 percent and he will ultimately be rated at 100 percent. He was not aware of the possibility of being medically retired because he had been through a “Fast-Track” Medical Evaluation Board (MEB). He was not counseled on his options and now realizes that he could have gone through the medical retirement process. In support of his request, the applicant provides copies of his medical records, DD Form 214, Certificate of Release or Discharge from Active Duty; retirement orders, Department of Veterans Affairs (DVA) rating decision and various other documents associated with his request. The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: On 31 Oct 12, the applicant was retired in the grade of colonel. He served 25 years, 4 months and 26 days of active service. On 6 Dec 12, the DVA granted the applicant service-connection for numerous medical conditions with a 90 percent disability rating. The remaining relevant facts pertaining to this application are contained in the letter prepared by the appropriate office of the Air Force, which is attached at Exhibit B. _________________________________________________________________ AIR FORCE EVALUATION: The BCMR Medical Advisor recommends denial. The Medical Advisor states that “Fast-Track MEBs are conducted when a disqualifying medical condition exists under AFI 48-123, Medical Examinations and Standards, but the medical ailment may not sufficiently interfere with service to adversely affect retainability and the needs of the Air Force. In such cases, medical officials monitoring the MEB process (AFPC/DPANM, Medical Standards Division), are authorized to defer formal MEB processing and return an individual to duty without referral to a Physical Evaluation Board (PEB). The individual may be issued an Assignment Limitation Code-C (ALC-C) which may restrict assignment to certain locations, but otherwise permit retention with periodic assessments. The Medical Advisor opines that the Military Departments, operating under Title 10, United States Code (USC), can only offer compensation for an illness, disease, or injury that is the cause for career termination; and then only to the degree of impairment present at the “snap-shot” time of final military disposition. Whereas, operating under a different set of laws, Title 38, USC, the DVA is authorized to offer compensation for any medical condition determined service-incurred, without regard to its proven or demonstrated impact upon a service member’s retainability, fitness to serve, or narrative reason for release from military service. This is the reason why an individual may be released from military service for one reason, yet receive compensation ratings from the DVA for conditions that were service-connected, but not found militarily unfitting for continued military service. The Medical Advisor opines that under the topic Presumption of Fitness in accordance with (IAW) Department of Defense Instruction 1332.38, Physical Disability Evaluation “except for service members previously determined unfit and continued in a permanent limited duty status, service members who are pending retirement at the time they are referred for physical disability evaluation enter the Disability Evaluation System (DES) under a rebuttable presumption that they are physically fit. The DES compensates disabilities when they cause or contribute to career termination. Continued performance of duty until a service member is approved for length of service retirement creates a rebuttable presumption that a service member’s medical conditions have not caused career termination.” Finally, the Medical Advisor opines that even if the applicant is considered for a de facto MEB processing and referral to a PEB, the final action would be return to duty, under the Presumption of Fitness rules. The complete BCMR Medical Advisor evaluation is at Exhibit B. _________________________________________________________________ APPLICANT’S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATION: A copy of the BCMR Medical Advisor evaluation was forwarded to the applicant on 4 Apr 13, for review and comment within 30 days (Exhibit C). As of this date, this office has not received a response. _________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has 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 warranting changing his retirement for voluntary length of service to a medical retirement. We took notice of the applicant's complete submission in judging the merits of the case and do not find that it supports a determination that the applicant was improperly retired from active duty. The applicant has provided no evidence which would lead us to believe that at the time of his separation, a physical condition existed that was determined by competent medical authority to be a physical disability which specifically rendered him unfit for continued military service. Therefore, we agree with the recommendation of the BCMR Medical Consultant and adopt his opinion as our findings in this case. In view of the above and in the absence of evidence to the contrary, we find no basis to favorably consider the applicant’s request. 4. The applicant’s case has been 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-2013-00557 in Executive Session on 29 Oct 13, under the provisions of AFI 36-2603: Panel Chair Member Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 16 Jan 13, w/atchs. Exhibit B. Letter, BCMR Medical Advisor, dated 2 Apr 13. Exhibit C. Letter, SAF/MRBC, dated 4 Apr 13. 3 4 5