RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-05770 COUNSEL: NONE HEARING DESIRED: YES APPLICANT REQUESTS THAT: His honorable discharge be changed to a medical retirement. APPLICANT CONTENDS THAT: While on active duty it was discovered he had a heart problem. He desires his records to show that he is 100 percent disabled. The applicant's complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: On 31 May 1991, the applicant was relieved from active duty and retired on 1 June 1991, in the grade of staff sergeant under the provisions of AFR 35-7 (Voluntary Retirement for Maximum Service Allowed by Air Force Policy). He served 20 years and 10 days of active service. The applicant provided a Department of Veterans Affairs Rating Decision dated 27 September 2012, stating that a clear and unmistakable error was found in the evaluation of atrial fibrillation, idiopathic dilated cardiomyopathy, moderately depressed left ventricular systolic function, and heart enlargement and a retroactive increased evaluation to 60 percent disabling was established from 10 April 2009. An evaluation of 100 percent was assigned from 24 July 2012. AIR FORCE EVALUATION: The AFBCMR Medical Consultant recommends denial. The AFBCMR Medical Consultant states the applicant has not provided service medical or administrative documentation, e.g., Physical Profile Serial Reports or AF Forms 422 (Notification of Air Force Member’s Qualification Status), medical summaries, and performance reports, to demonstrate that he was unable to reasonably perform the duties of his office, grade, rank, and rating at the time of his retirement due to a cardiovascular ailment. The military Disability Evaluation System (DES), established to maintain a fit and vital fighting force, can by law, under Title 10, United States Code (U.S.C.), 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” in time of release from military service, and not based on future occurrences. Department of Defense Instruction (DoDI) 1332.32, Physical Disability Evaluation [under revision and renumbering], Enclosure 3, Part 3, Standards For Determining Unfitness Due To Physical Disability Or Medical Disqualification, paragraph E3. P3.2.1, reads: “A Service member shall be considered unfit when the evidence establishes that the member, due to physical disability, is unable to reasonably perform the duties of his or her office, grade, rank, or rating (hereafter called duties) to include duties during a remaining period of Reserve obligation.” It could not be established that the applicant was unable to reasonably perform his military duties due to one or more medical conditions during his military service or at the time of his release from service. Moreover, under paragraph E3.P3.3.3, Adequate Performance Until Referral, “If the evidence establishes that the service member adequately performed his or her duties until the time the service member was referred for physical evaluation, the member may be considered fit for duty even though medical evidence indicates questionable physical ability to continue to perform duty.” Moreover, noting the applicant had achieved the maximum number of years of service allowed by Air Force policy, had he received a Medical Evaluation Board (MEB) anytime during the 12 months preceding his date of retirement, a Physical Evaluation Board could [and likely would] have found him fit and returned him to duty to proceed with his length of service retirement, under the rule referred to as Presumption of Fitness. The Medical Consultant concedes the an acute myocardial infarction or congestive heart failure are examples of conditions that could overcome the Presumption of Fitness; particularly if so severe as to cause symptoms of dyspnea or angina [during military service] after or during minimal exertion, e.g., 1 to 3 Metabolic Equivalents (METs). Although since leaving military service, the applicant has met criteria for progressively higher disability ratings, there is no service evidence that any aspect of the aforementioned medical issue was of such severity at the “snap shot” in time of his military service that would warrant processing through the military DES; and even so, that indicates he would have overcome the Presumption of Fitness. On the other hand, operating under a different set of laws, Title 38 U.S.C., with a different purpose, the Department of Veterans Affairs is authorized to offer compensation for any medical condition determined service incurred without regard to is proven impact upon member’s retainability, fitness to serve, narrative reason for release from service, or the length of time transpired since leaving military service. The DVA is also empowered to conduct periodic re-evaluations for the purpose of adjusting the disability rating [reduce or increase], as the level of impairment from a given medical condition may vary [improve or worsen] over the lifetime of the veteran. The Medical Consultant opines the applicant has not met the burden of proof of error or injustice that warrants the desired change of the record. The complete AFBCMR Medical Consultant’s evaluation is at Exhibit C. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: On 1 October 2014, a copy of the Air Force evaluation was forwarded to the applicant for review and response within 30 days (Exhibit D). As of this date, no response has been received by this office. 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 injustice. After a thorough review of the evidence of record and the applicant’s submission, we believe that relief is not warranted and the applicant has not provided any evidence which would lead us to believe otherwise. His contentions are duly noted; however, the detailed comments provided by the AFBCMR Medical Consultant adequately address these concerns. Therefore, we agree with the opinion and recommendation of the AFBCMR Medical Consultant and adopt his rationale as the basis for our conclusion that the applicant has failed to sustain his burden of proof that he has suffered either an error or an injustice. In the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application. 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 the evidence presented did not demonstrate the existence of an 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-2013-05770 in Executive Session on 6 November 2014, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 12 December 2014, w/atchs. Exhibit B. Available Master Personnel Records. Exhibit C. Letter, AFBCMR Medical Consultant, dated 16 June 2014. Exhibit D. Letter, SAF/MRBR, dated 1 October 2014.