RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2015-01174 COUNSEL: NONE HEARING DESIRED: YES APPLICANT REQUESTS THAT: His general, under honorable conditions, discharge be upgraded to honorable and his narrative reason for separation be changed from misconduct to medical retirement. APPLICANT CONTENDS THAT: His First Sergeant had it out for him since he was injured and unable to use his arm due to it being in a full arm cast. Even though the First Sergeant knew he had a crippling arm injury, he told the office discharging him to record the reason as misconduct. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: On 27 Mar 01, the applicant entered the Regular Air Force. Based on the limited documents available regarding his discharge, the following limited information is provided: On 14 Mar 02, he received an Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully entering the name of Osama Bin Laden for Space Available travel and for attempting to steal three meals from the in-flight kitchen valuing $10.80. As punishment, he received 30 days extra duty and reduction in grade to Airman (Amn)/E-2. On 15 Mar 02 after consulting Counsel, he waived his right to court-martial and to submit a written statement. However, he requested an appearance before his commander. Based on a follow up appointment with the Behavioral Medicine Services, on 5 Apr 02, the applicant was diagnosed him with Axis I, Adjustment Disorder with Depressed Mood V62.2 Occupational Problem, Axis II: 799.9 Dx Deferred, Axis III: (see OPR), Axis IV: likely discharge from military; Axis V: GAF=65 (current). According to DD Form 2697, Report of Medical Assessment, dated 9 Apr 02, he indicated that his right arm was very painful and indicted that he would seek Department of Veterans Affairs disability. On 1 May 02, the applicant received a general discharge with a narrative reason for separation as misconduct. He was credited with 1 year, 2 months, and 4 days of active service. The remaining relevant facts pertaining to this application are described in the letters prepared by the Air Force offices of primary responsibility which are included at Exhibits C and D. AIR FORCE EVALUATION: AFPC/DPSOR recommends disapproval indicating it has been 13 years since the applicant’s discharge and he has not filed a timely petition. The length of time has caused documentation to become absent from the record causing potential prejudice to the Air Force. Based on the presumption of regularity, the discharge was consistent with the procedural and substantive requirements of the discharge instruction and was within the discretion of the discharge authority. A complete copy of the AFPC/DPSOR evaluation is at Exhibit C. The BCMR Medical Consultant recommends denial and indicates the applicant has not met the burden of proof to change the record. The military Disability Evaluation System (DES) 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 time of separation and not based on future progression of disease or injury. In the applicant’s case, although he has been assigned disability compensation for right upper extremity medical conditions, no evidence is presented to indicate that his scaphoid fracture at the time was so severe as to disqualify him from worldwide duty to the extent or duration that warranted referral for Medical Evaluation Board/Physical Evaluation Board (MEB/PEB) processing. Had he undergone an MEB and was concurrently eligible for a medical separation for his wrist ailment, noting he was already the subject of an administrative discharge, the final basis for discharge would be determined by the Secretary of the Air Force Personnel Counsel (SAFPC) as a “dual-action” case review. Operating under a different set of laws (Title 38, U.S.C.) with a different purpose, the Department of Veterans Affairs (DVA) is authorized to offer compensation for any medical condition determined service-incurred, without regard to [and independent of] its demonstrated or proven impact upon as a service member’s retainability, fitness to serve, or the narrative reason for separation. This is the reason why an individual can be released from military service for one reason and yet sometime thereafter receive a compensation rating from the DVA one or more medical conditions that were service-connected, but not proven militarily unfitting at the time of release from military service. The DVA is also empowered to conduct periodic re- evaluations for the purpose of adjusting the disability rating awards (increase or decrease) as the level of impairment from a given service connected medical condition may vary (improve or worsen, affecting future employability) over the lifetime of the veteran; as demonstrated in the applicant’s most recent disability rating determinations. A complete copy of the BCMR Medical Consultant evaluation is at Exhibit D. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluations were forwarded to the applicant on 30 Oct 15 for review and comment within 30 days (Exhibit E). 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 applicant was not timely filed. While the applicant claims a date of discovery of less than three years ago, in our view, the reasonable date of discovery of the alleged error or injustice was more than three years ago and the application is therefore untimely; 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. We took notice of the applicant’s complete submission in judging the merits of the case; however, we are not persuaded by the evidence submitted in this appeal that a change in the record is warranted. Therefore, we agree with the opinion and recommendation of the Air Force OPR and the BCMR Medical Consultant and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice. In the absence of evidence to the contrary, we find no basis to recommend granting the requested relief. 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 documentary evidence pertaining to AFBCMR Docket Number BC-2015-01174 was considered: Exhibit A. DD Form 149, dated 11 MAY 15. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, AFPC/DPSOR, dated 14 JUL 15. Exhibit D. Memorandum, AFBCMR Medical Consultant, dated 23 Oct 15. Exhibit E. Letter, SAF/MRBR, dated 30 Oct 15.