RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-01352

XXXXXXXXXXXXXXX	COUNSEL: NONE

	HEARING REQUESTED: NO

APPLICANT’S REQUEST

His medical conditions (migraine headaches and cognitive disorder) be changed from Category II, Conditions that can be unfitting but are not currently compensable or ratable to Category I, Unfitting conditions which are compensable and ratable.

APPLICANT’S CONTENTIONS

His migraine headaches and cognitive disorder were listed as Category II conditions.  However, they should have been listed as Category I.  The Department of Veterans Affairs (DVA) listed these conditions as Category I.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former medically retired Air Force staff sergeant (SSgt).

On 9 Nov 12, the applicant was referred to the Informal Physical Evaluation Board (IPEB) for his medical condition of Ependymal Cyst. 

On 27 Nov 12, the applicant acknowledged that an impartial review was designed to provide him with an impartial review of his medical board findings and recommendations.  The applicant elected not to request an impartial review.

On 7 Mar 13, the DVA proposed a 60 percent disability rating for his unfitting medical condition of Ependymal Cyst.  The DVA also provided proposed disability ratings for his service connected migraine headaches (50 percent) and cognitive disorder (50 percent).  The DVA also provided disability ratings for several other service-connected disabilities with a combined rating of 100 percent.  

Per AF Form 356, Findings and Recommended Disposition of USAF Physical Evaluation Board, dated 7 Mar 13, the applicant was found unfit due to his medical condition of Ependymal Cyst with a disability compensation rating of 60 percent.  His migraine headaches, cognitive disorders and several other medical conditions were listed as Category II conditions.  The PEB noted that his Category II condition did not appear to affect his ability to perform his duties and were not unfitting for duty.

According to Special Order Number ACD-01998, dated 2 May 13, the applicant was permanently, disability retired with a compensable percentage for physical disability of 60 percent.

Per the applicant’s DD Form 214, Certificate of Release or Discharge from Active Duty, the applicant was discharged in the grade of SSgt after serving 15 years, 9 months and 3 days of active duty.  His narrative reason for separation is “Disability, Permanent.”

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. There is no indication an error or injustice occurred at the time the PEB processed his disability case.  Although the applicant received disability compensation from the DVA for 16 service-connected medical conditions, there is no evidence that these conditions were severe enough to significantly affect his ability to perform his duties and be classified unfitting for military service.  The Air Force and the DVA disability systems operate under separate laws.  Under the Air Force system (Title 10, United States Code [U.S.C.]), the PEB must determine whether an Airman’s medical condition renders them unfit for continued military service relating to their office, grade, rank or rating.  To be unfitting, the condition must be such that it alone precludes the member from fulfilling their military duties.  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.  

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 26 Aug 20 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 AFPC/DPFDD and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  As noted above, the Air Force and the DVA disability systems operate under separate laws.  Under Title 10, the AF PEB must determine whether an Airman’s medical condition renders them unfit for continued military service relating to their office, grade, rank or rating.  To be unfitting, the condition must be such that it alone precludes the member from fulfilling their military duties.  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.  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-2020-01352 in Executive Session on 7 Jan 21:

Panel Chair
Panel Member
Panel Member

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

Exhibit A:	Application, DD Form 149, dated 25 Feb 20.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DPFDD w/atchs, dated 19 Apr 20.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 26 Aug 20.

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.