RECORD OF PROCEEDINGS

IN THE MATTER OF				DOCKET NUMBER: BC-2017-03978

XXXXXXXXXXXXXX				COUNSEL: NONE

							HEARING: NO 

APPLICANT REQUESTS THAT:

His records be corrected to reflect the following:

a.  A higher disability rating for his back;

b.  Medically retired as a E-6, technical sergeant.

APPLICANT CONTENDS THAT:

He was injured while attending recruiting school at Lackland AFB, in 2011, when he bent over to tie his shoes and hurt his back.  He had decompression surgery in 2012 which did not resolve his pain.  His Physical Evaluation Board (PEB) process was mishandled and he was not given pertinent information.  While going through the MEB process he was not made aware of the details of the process.  Furthermore, while being evaluated for “forward flexion” of his back he was not given guidance and pushed himself beyond intense pain, obtaining a better range of motion that he should have had.  He was never evaluated for radiculopathy, nor was he given treatment for nerve pain prior to separation.  He was assigned a 10 percent rating for his back, and separated with severance pay.  The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

The applicant is a former Air Force technical sergeant.  

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

AIR FORCE EVALUATION:

AFPC/DPFDD recommends denying the application.  

In May 13, the applicant was referred to the Integrated Disability Evaluation System for Lumbago.  The Informal Physical Evaluation Board (IPEB) reviewed the applicant’s file and determine he was unfit to continue military service.  The applicant’s case was forwarded to the Department of Veterans Affairs (DVA) for application of the appropriate level of disability for his unfitting condition.  The IPEB applied the DVA’s rating and recommended discharge with severance pay, with a combined rating of 10 percent.  

The PEBs determine if a member’s condition renders them unfit for continued military service.  The fact that a member may have other medical conditions does not mean those conditions are necessarily unfitting.  To be unfitting the condition must be such that it alone precludes the member from fulfilling their military duties.  Upon review of the applicant’s case, the Boards found no evidence to indicate the applicant had any other unfitting conditions at the time his medical board was processed.

Furthermore, the PEBs determine unfitness and apply a disability rating best associated at the time of the disability processing.  That rating determines final disposition, and is not subject to change after the member has separated.  While the DVA may reevaluate the member over the years and increase or decrease the rating, those changes to do warrant a change to the rating awarded at the time of the member’s separation.  Based on the DVA rating, dated 26 Jul 13, the rating was correctly applied and no change in his disposition is warranted.

The complete advisory is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board sent a copy of the Air Force evaluation to the applicant on 13 Aug 18 for comment (Exhibit D), but has received no response. 

THE BOARD CONCLUDES:

1.  The application was not timely file.

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 finds that a preponderance of the evidence does not substantiate the applicant’s contentions.  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:  

The applicant be informed that 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-2017-03978 in Executive Session on 18 Sep 18:

	, Panel Chair
	, Panel Member
	, Panel Member

All members voted not to correct the record.  The panel considered the following:

Exhibit A:  Application, DD Form 149, w/atchs, dated 20 Aug 17.
Exhibit B:  Documentary evidence, including relevant excerpts from official records.
Exhibit C:  Advisory opinion, AFPC/DPFDD, dated 2 Jan 18.
Exhibit D:  Notification of Advisory, SAF/MRBC to applicant, dated 13 Aug 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.