RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2017-03769

XXXXXXXXXX	COUNSEL: NONE

	HEARING: NO

APPLICANT REQUESTS THAT:

His DD Form 214, Certificate of Release or Discharge from Active Duty, be corrected to reflect a medical retirement.

APPLICANT CONTENDS THAT:

He should have been medically retired.  The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

On 28 Aug 09, the Informal Physical Evaluation Board (IPEB) diagnosis was low back pain due to disc herniation at L4-L5 with radicular symptoms with a compensable disability rating of 10 percent.

On 11 Sep 09, the applicant did not agree with the findings and recommended disposition of the IPEB and requested a formal hearing of his case. 

On 9 Dec 09, the applicant agreed with the findings and recommendations of the Formal Physical Evaluation Board (FPEB) of an unfitting condition of low back pain due to disc herniation at L4-L5 with radicular symptoms with a compensable disability rating of 10 percent.

On 25 Feb 10, the applicant was honorably discharged with a narrative reason for separation of disability with severance pay with a compensable disability rating of 10 percent in the grade of staff sergeant and was credited with 7 years, 3 months and 1 day of active service.

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisories at Exhibit C and Exhibit D.

AIR FORCE EVALUATION:

AFPC/DPFDD recommends denying the application.  The applicant was referred to the Integrated Disability Evaluation System (IDES) in Jul 09.  The IPEB reviewed his case file and determined the applicant was unfit for continued military service for low back pain due to Disc Herniation at L4-L5 with radicular symptoms; and recommended Discharge With Severance Pay (DWSP) with a combined compensable disability rating of 10 percent.  The applicant non-concurred and appealed to the FPEB.  The FPEB upheld the recommendation of DWSP at 10 percent and the applicant concurred.  The applicant was medically separated effective 25 Feb 10 with 7 years, 3 months and 1 day of active service.  A review of the applicant’s DD Form 149 request reveals no error or injustice occurred during the processing of his case.  The complete advisory is at Exhibit C.

AFRBA/BCMR Medical Advisor recommends denying the application.  At the time the applicant underwent consideration via the IDES, the applicant did not meet the criteria for medical retirement – combined compensable disability rating of 30 percent.  The threshold for obtaining a military medical retirement is that the unfitting conditions reach a 30 percent combined compensable disability rating.  The consideration of other medical conditions specified in a Department of Veteran Affairs (DVA) disability rating assessment does not necessarily determine whether or not a person qualifies for a military medical retirement.  The disposition of military medical retirement is based on the combined rating for conditions that medically disqualified a person from continued military service.  If an individual was separated with a disability rating of 10 percent for a condition and the rating was subsequently increased to 30 percent or more after separation, this again does not change the disposition with regard to a medical retirement.  There does not appear to be any error in the determination of the DVA disability rating.  

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board sent a copy of the Air Force evaluation to the applicant on 08 Feb 18 for comment (Exhibit E), but has received no response.

THE BOARD CONCLUDES THAT:

1.  The application was not timely filed.

2.  The applicant exhausted all available avenues of non-judicial relief before applying to the Board.

3.   After thoroughly reviewing all Exhibits, it is the Board’s opinion that the applicant is not the victim of an error or injustice.  The Board concurs with the rationale and recommendation of AFPC/DPFDD and MRB Medical and finds that a preponderance of the evidence does not substantiate the applicant’s contentions.  Furthermore, the Board also notes 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, Air Force Board for Correction of Military Records (AFBCMR).  While the applicant asserts a date of discovery less than three years before the Board’s receipt of the application, the Board does not find the assertion reasonable.  The Board finds the application untimely and concludes it would not be in the interest of justice to excuse the delay.  Therefore, the Board recommends against correcting the applicant’s records.

THE BOARD RECOMMENDS THAT:

The applicant be informed the application was not timely filed; it would not be in the interest of justice to excuse the delay; and the application will only be reconsidered upon receipt of relevant evidence not already considered by the Board.

CERTIFICATION:

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2017-03769 in Executive Session on 19 Sep 18:

, Panel Chair
, Panel Member
, Panel Member

The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 31 Jul 17.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DPFDD, w/atchs, dated 14 Dec 17.
Exhibit D:	Advisory opinion, MRB Medical, dated 31 Jul 18.
Exhibit E:	Notification of Advisory, SAF/MRBC to applicant, dated 08 Feb 18.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings required by AFI 36-2603, paragraph 4.11.9.