RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2019-04125

	COUNSEL: NONE
	
	HEARING REQUESTED: NO

APPLICANT’S REQUEST

His discharge with severance pay be changed to a medical retirement.

APPLICANT’S CONTENTIONS

He strongly disagrees with the results of the Temporary Disability Retired List (TDRL) re-evaluation.  He was medically discharged solely for his medical condition [Traumatic Brain Injury (TBI)], which is not consistent with other service-connected injuries as found by the Department of Veterans Affairs (DVA).  He had other medical conditions that he believes should have been considered at the time of his discharge.  Currently, the DVA has rated him with a 90% disability rating.  His service-connected medical condition is not improving.  He would be unemployable without workplace accommodations and has a VA caregiver taking care of him.

In January 2008, Congress passed the Dignified Treatment of Wounded Warriors Act.  Part of the Act included the Physical Disability Board of Review (PDBR) to ensure fairness and accuracy of past TDRL ratings.  He feels that his permanent disabilities suffered while serving on active duty were under evaluated and his 10% disability rating meets the intent of the PDBR’s criteria utilizing the Wounded Warriors Act.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a retired Air National Guard (ANG) master sergeant.

On 19 Aug 09, per AF Form 356 (Finding and Recommended Disposition of USAF Physical Evaluation Board), the Informal Physical Evaluation Board (IPEB) determined the applicant was unfit for continued service for having a Traumatic Brain Injury (TBI).  On 27 Aug 09, the applicant concurred with the IPEB’s findings.  

On 28 Nov 09, per Special Order No. ACD-02176, dated 24 Sep 09, the applicant was placed on the TDRL with a 40% disability rating.

On 7 Jun 11, per AF Form 356, the IPEB recommended the applicant be removed from the TDRL and Discharge with Severance Pay (DWSP) with a compensable percentage for physical disability of 10%.  On 21 Jun 11, the applicant concurred with the IPEB’s findings and recommendations.

On 17 Jul 11, per Special Order No. ACD-2618, dated 27 Jun 11, the applicant was removed from the TDRL and discharged with severance pay.

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

APPLICABLE AUTHORITY

The Department of Defense (DoD) and the DVA disability evaluation systems operate under two separate laws.  Under Title 10, United States Code, 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.  The fact that a person may have a medical condition does not mean the condition is unfitting for continued military service.  To be unfitting, the condition must be such that it alone precludes the member from fulfilling their military duties.  If the board renders a finding of unfit, the law provides appropriate compensation due to the premature termination of their career.  Further, it must be noted the AF 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.  It is the charge of the DVA to pick up where the AF must, by law, leave off.  Under Title 38, the DVA may rate any service-connected condition based upon future employability or reevaluate based on changes in the severity of a condition.  This often results in different ratings by the two agencies.

AIR FORCE EVALUATION

AFPC/DPFDC recommends denying the application.  There is no evidence of an error or injustice that occurred during the processing of his case.  On 15 Feb 11, the applicant was re-evaluated and removed from the TDRL based on a real time TDRL examination.  At any time, the DVA can increase or decrease a disability rating based on a re-evaluation or appeal.  The applicant provided a copy of his VA rating, dated 17 Aug 13, which was clearly completed after the TDRL re-evaluation was finalized.  

The complete advisory opinion is at Exhibit C.

The BCMR Psychiatric Advisor recommends denying the application.  The applicant believes the TDRL re-evaluation should be adjusted to reflect his current DVA service-connected disability rating.  However, the applicant’s final rating for TBI was based on neuropsychological evaluation performed by a DoD psychologist in February 2011.  The results of the evaluation demonstrated minimal cognitive deficits.  In fact, his cognitive abilities fell in the high average range.  Furthermore, the evaluating neuropsychologist opined that the applicant was World Wide Qualified (WWQ) and recommended he be returned to duty.  In April 2011, he underwent another neurocognitive evaluation at the VA.  Although, it is unclear if the IPEB has reviewed the VA report, it mostly echoed the previous DoD findings.  The only noticeable difference is the applicant’s self-report of disinhibition/compulsive behaviors.  According to the applicant’s two cognitive problems were real; however, they were very mild and he continued to function at the high level.   Given the recommendation of the neuropsychologist and the applicant’s impairment, the IPEB decision to not return him to duty is unclear.  

The complete advisory opinion is at Exhibit D.

The BCMR Medical Advisor recommends denying the application.  Although the applicant was placed on a temporary profile to provide for rest and recovery, he was treated with nonsteroidal anti-inflammatory drugs (NSAIDS), and rehabilitative therapy, these conditions never led to prolong duty and mobility restrictions.  Therefore, his medical condition would not have deemed him as being unfit for duty.  Further, the singular presence of a medical condition or medical symptoms does not in itself indicate that a particular condition is unfitting for duty.  Additionally, the history of a condition or symptoms that previously affect the applicant’s duty status does not necessarily indicate that the condition is unfitting.  There was no evidence found to show the service-connected condition affected his ability to satisfactorily execute his duties.  

The complete advisory opinion is at Exhibit E.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 18 Nov 19 for comment (Exhibit F), but has received no response.

FINDINGS AND CONCLUSION

1.  The application was 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 AFPC/DPFDC, the BCMR Psychiatric Advisor, and 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).  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-2019-04125 in Executive Session on 17 Jun 20:

, 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 14 Aug 19.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DPFDC, dated 19 Sep 19.
Exhibit D:	Advisory opinion, BCMR Psychiatric Advisor, dated 24 Oct 19.
Exhibit E:	Advisory opinion, BCMR Medical Advisor, dated 4 Nov 19.
Exhibit F:	Notification of advisories, dated 18 Nov 19.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings related to Docket Number BC-2019-04125, as required by AFI 36-2603, paragraph 4.11.9.