RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2015-00188 COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: Her retirement disability rating be increased from 30 percent to 50 percent. APPLICANT CONTENDS THAT: She has remained under care for a psychiatric condition since her discharge from the Air Force with continued episodes of severe impairment. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The applicant, with 4 years, 6 month and 1 day of prior service, reenlisted in the Regular Air Force on 5 November 1984. On 9 October 1987, the applicant was seen by a Medical Evaluation Board (MEB) and her case was referred to an Informal Physical Evaluation Board (IPEB) with a diagnosis of Depressive Disorder. On 22 October 1987, the IPEB evaluated the applicant’s case and found her unfit because of physical disability, and recommended temporary retirement with compensable percentage for physical disability of 30 percent. On 22 November 1987, the applicant retired in the grade of staff sergeant under the provisions AFR 35-4 (Placement on the Temporary Disability Retired List (TDRL), Physical Disability). She served 7 years, 6 months and 19 days on active duty. On 23 November 1987, the applicant was placed on the TDRL with a combined compensable physical disability rating of 50 percent. In May 1990, the applicant was reevaluated and was continued on the TDRL, again with a 50 percent disability rating. On 24 January 1992, the applicant was evaluated by the Formal PEB which found her unfitting condition to be – Dysthymic – chronic. They found her unfit for duty and recommended permanent retirement with a disability rating of 30 percent. The applicant was removed from the TDRL with a compensable percentage of 30 percent for physical disability and permanently retired effective 15 February 1992. The remaining relevant facts pertaining to this application are contained in the memorandums prepared by the Air Force offices of primary responsibility (OPRs), which are attached at Exhibits C and D. AIR FORCE EVALUATION: AFPC/DPFD recommends denial indicating the applicant is receiving retired pay at the percentage awarded at the time of her removal from the TDRL and permanent retirement. The preponderance of evidence reflects that no error or injustice occurred during the disability or discharge process. A service member being processed through the DES who has been determined to have an unfitting condition that has not yet stabilized is placed on the TDRL for a period not to exceed five years. The purpose of the TDRL is to allow time for the condition to stabilize as a result of treatment and time. The disability percentage assigned at the time of placement on the TDRL is based on the severity of the condition at that time. Once the condition is determined stable, the percentage may change and the final recommendation can be permanent retirement, discharge with severance pay or fit for duty. In the applicant’s case, it was determined that her condition had improved enough to warrant a lesser disability rating, but the rating was high enough to meet the requirements for a permanent disability retirement vice discharge. The applicant may be confusing the percentage awarded by the Department of Veterans Affairs (DVA) with the percentage awarded by the Air Force at the time of her placement in a permanent retired status. As background, the DVA disability evaluation systems operate under separate laws. Under Title 10, USC, Chapter 61, Physical Evaluation Boards must determine if a member’s condition renders them unfit for continued military service relating to their office, grade, rank or rating. It must be noted the USAF disability boards must rate disabilities based on the member’s condition at the time of evaluation, in essence a snapshot of their condition at that time, while the DVA rating may fluctuate as a condition changes. A complete copy of the AFPC/DPFD evaluation is at Exhibit C. The AFBCMR Psychiatric Advisor recommends denial. The Psychiatric Advisor wonders about the applicant’s incentive to petition the disability decision from the 1990s, considering that she had a rebuttal in 1992 with the subsequent increase of her disability rating to 30 percent. Regardless of the underlying motives, in the interest of the justice this 25 year old case has been reviewed despite the passage of its statue of the limitation. Since no new information has been added to this file and all the factual records have been previously presented to the MEB, this advisor has directed her attention to a possible error or injustice of the final PEB decision. The applicant had served in the Air Force since 1981 and she had stellar performance evaluations until the time of her discharge in 1987. It appears that she started decompensating following the suicide of her father in 1985 and had been hospitalized in 1985 and 1987. During the 1987 hospitalization she was initiated on a trial of Lithium, which reportedly was beneficial, but unfortunately it also required referral to the MEB. In October of 1987 she was given 30 percent disability rating for Depressive Disorder NOS and was placed on TDRL. The applicant had a difficult transition to the civilian life with multiple family stressors and during her reevaluation in 1990 she was retained on TDRL and her rating was increased to 50 percent for Atypical Depression. In November 1991, the IPEB determined that her condition had improved and granted the applicant 10 percent disability rating for Dysthymic Disorder. She challenged that decision and appealed to FPEB, who has increased her rating to 30 percent and permanently retired her. This final determination was based on the evaluation performed on 6 November 1991. The examiner documented that the applicant was gainfully employed at the Federal Facility. She admitted to getting depressed at times. She admitted to thoughts of suicide, but no suicide attempts. She demonstrated appropriate personal habits and grooming. Her insight and judgment were good. She recognized the nature of her psychological problems and was amenable to continue treatment. The applicant was seen a month after receiving her final ratings by her psychiatrist, who had documented that the applicant was in good spirits and decided to continue Prozac which she felt was helpful, but did not like taking it. Addressing the applicant’s desire to change her ratings based on the post-discharge course of her illness, 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 “snapshot” time of separation and not based on post-service progression of disease or injury. To the contrary, the Department of Veterans Affairs (DVA), operating under a different set of law, Title 38, U.S.C., is empowered to offer compensation for any medical condition with an established nexus with military service, without regard to its impact upon a member’s fitness to serve, the narrative reason for release from service, or the length time transpired since the date of discharge. The DVA may also conduct periodic reevaluations for the purpose of adjusting the disability rating awards as the level of impairment from a given medical condition may vary [improve or worsen] over the lifetime of the veteran. Interestingly enough DVA has offered applicant only 10 percent SC disability in 1988. Furthermore, under the 30 percent disability rating, the individual might require a chronic psychiatric care and occasional worsening of symptoms requiring hospitalizations. The symptoms are of chronic nature, but individual should be able to hold a job and maintain relationships at most times. Consequently, the applicant’s claim “I have remained under care for psychiatric condition ever since discharge with continued episodes of severe impairment” is not valid for increase in disability rating. The Psychiatric Advisor recognizes the sacrifices the applicant has made for this country and appreciates her service, but finds the decisions of the Military Department did not represent an error or injustice. A complete copy of the Psychiatric Advisor’s evaluation is at Exhibit D. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 4 April 2016 for review and comment within 30 days (Exhibit E). As of this date, no response has been received by this office. FINDINGS AND CONCLUSIONS OF THE BOARD: Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. After a careful review of the applicant's contentions, documentation submitted in support of the request, and the available evidence of record, we are not convinced the applicant has provided sufficient evidence for us to conclude that she is the victim of an error or injustice. We also note the applicant did not file the application within three years after the alleged error or injustice was discovered, or should have been discovered, as required by Title 10, United States Code, Section 1552 and Air Force Instruction 36-2603. While the applicant claims a date of discovery of less than three years prior to receipt of the application, we believe a reasonable date of discovery was more than three years prior to receipt of the application. Therefore, because we do not find it would be in the interest of justice to recommend granting relief, and the applicant has offered no plausible reason for the delay in filing the application, we cannot conclude it would be in the interest of justice to excuse the failure to timely file the application. Accordingly, we find the application untimely. THE BOARD DETERMINES THAT: The application was not timely filed and it would not be in the interest of justice to waive the untimeliness. It is the decision of the Board, therefore, to reject the application as untimely. The following members of the Board considered AFBCMR Docket Number BC-2015-00188 in Executive Session on 10 May 2016, under the provisions of AFI 36-2603: The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-00188 was considered: Exhibit A. DD Form 149, dated 6 January 2015, w/atchs. Exhibit B. Applicant’s Master Personnel Records. Exhibit C. Letter, AFPC/DPFD, dated 11 February 2015. Exhibit D. Letter, AFBCMR Psychiatric Advisor, dated 1 April 2016. Exhibit E. Letter, AFBCMR, dated 4 April 2016.