RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2019-03964

XXXXXXXXXX	COUNSEL: NONE
	
	HEARING REQUESTED: NO

APPLICANT’S REQUEST

His medical discharge be changed to a medical retirement.

APPLICANT’S CONTENTIONS

The Air Force rated his medical condition of Pericarditis at 10 percent.  Three months later, the Department of Veterans Affairs (DVA) rated it at 30 percent.  He believes the Air Force should have rated it at 30 percent based on the DVA findings. 

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

On 25 Mar 98, the applicant enlisted in the Regular Air Force.

Per AF Form 356, Findings and Recommended Disposition of USAF Physical Evaluation Board, dated 22 Jun 10, the Board found his medical condition prevented him from reasonably performing the duties of his office, grade, rank, or rating or fulfilling deployment responsibilities.  Therefore, the Formal Physical Evaluation Board found him unfit and recommended discharge with severance pay with a 10 percent disability rating.

On 12 Jul 11, the Secretary of the Air Force directed the applicant be discharged with severance pay.

On 30 Nov 11, the applicant was discharged in the grade of staff sergeant (E-5) after serving 13 years, 8 months and 6 days of active duty.  His narrative reason for separation is “Disability, Severance Pay, Non Combat.” 

Per DVA Rating Decision dated 9 Mar 12, the applicant was granted service connection for Pericarditis with a 30 percent disability rating effective 1 Dec 11

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

AIR FORCE EVALUATION

The BCMR Medical Advisor states the evidence does not demonstrate an error or injustice.  According to the disability rating criteria for Pericarditis, for a workload greater than 7 METS (metabolic equivalents), but not greater than 10 METS, resulting in dyspnea, fatigue, angina, dizziness, or syncope, or when continuous medication is required, a 10% disability rating is assigned.  On the other hand, a 30 percent disability is warranted with a workload greater than 5 METS, but not greater than 7 METS.  Since the applicant achieved 10 METS on testing, before experiencing symptoms, this fits the criteria for the 10 percent disability rating assigned by previous boards.  Findings during post-service medical examinations may differ from evidence documented during military service.  Moreover, the VA examiner utilized a non-objective estimation of the applicant’s post-service function based on subjective responses during an interview.  The Military Department, operating under Title 10, United States Code, based its findings and decisions upon the objective evidence present at the “snapshot” time of military disposition; and not based upon post-service assessments or progression of disease or injury.  The DVA is empowered to further adjust disability ratings, as the level of impairment from a given service-connected medical condition may vary [improve or worsen] over the lifetime of the veteran.

The complete advisory opinion is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 13 Nov 19 for comment (Exhibit D), but has received no response.

FINDINGS AND CONCLUSION

1.  The application was not timely filed.

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

3.  After reviewing all Exhibits, the Board concludes the applicant is not the victim of an error or injustice.  The Board concurs with the rationale and recommendation of the BCMR Medical Advisor and finds 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 of discovering the alleged error or injustice, as required by Section 1552 of Title 10, United States Code, and Air Force Instruction 36-2603, Air Force Board for Correction of Military Records (AFBCMR).  While the applicant asserts a date of discovery within the three-year limit, the Board does not find the assertion supported by a preponderance of the evidence.  The Board does not find it in the interest of justice to waive the three-year filing requirement.  Therefore, the Board finds the application untimely and recommends against correcting the applicant’s records.

RECOMMENDATION

The Board recommends informing the applicant the application was not timely filed; it would not be in the interest of justice to excuse the delay; and the Board will reconsider the application only upon receipt of relevant evidence not already presented.
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-2019-03964 in Executive Session on 20 May 2020.

, Panel Chair
, Panel Member
, Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 1 Aug 19.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, Medical Advisor, dated 24 Oct 19, w/atchs.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 13 Nov 19.

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