RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-00659

	COUNSEL: YES
	
	HEARING REQUESTED: NO	

APPLICANT’S REQUEST

He be placed on the temporary disability retired list (TDRL) with 50 percent disability effective 4 Jun 09 and permanently retired with 30 percent disability effective 4 Jun 10.

APPLICANT’S CONTENTIONS

He was being processed for a Medical Evaluation Board (MEB) in Feb 09.  However, the process was stopped in May 09 because he was too close to his separation date of 4 Jun 09.  On 2 Dec 09, the Department of Veterans Affairs (DVA) awarded him with 20 percent disability for his degenerative disc disease of the back and 10 percent for ulcerative colitis (UC) for a combined disability rating of 30 percent effective 5 Jun 09.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former Air Force staff sergeant (E-5).

On 23 Feb 09, according to AF Form 469, Duty Limiting Condition Report, provided by the applicant, he was placed on mobility restrictions with code 37 (MEB processing) with a release date of 23 Aug 09.

On 12 Mar 09, according to AF Form 469, provided by the applicant, he was placed on duty and mobility restrictions with code 37 (MEB processing) with a release date of 23 Aug 09.

On 1 Jun 09, according to Medical Examination for Separation memorandum, the applicant’s medical records were reviewed in accordance with AFI 48-123, Medical Examinations and Standards, and it was determined he did not require a physical examination.

On 4 Jun 09, the applicant was discharged with an honorable character of service with narrative reason for separation of completion of required active service and credited with 9 years, 11 months and 12 days active service.

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

APPLICABLE AUTHORITY/GUIDANCE

The Department of Defense (DoD) and the Department of Veterans Affairs (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 Air Force 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 Air Force 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.

The military Disability Evaluation System (DES), established to maintain a fit and vital fighting force, can by law, under Title 10, United States Code (USC), only offer compensation for those service incurred diseases or injuries which specifically rendered a member unfit for continued service and were the cause for career termination; and, then only for the degree of impairment present at the time of separation and not based on future occurrences.  DoD Instruction (DoDI) 1332.32, Physical Disability Evaluation, reads “A Service member shall be considered unfit when the evidence establishes that the member, due to physical disability, is unable to reasonably perform the duties of his or her office, grade, rank or rating.”

AIR FORCE EVALUATION

The AFBCMR Medical Advisor finds insufficient evidence to support the applicant’s request to change the course of his discharge regarding retroactive placement on to the TDRL and subsequent medical retirement.  The eventual medical decisions were performed in accordance with DoDI criteria and in that decision process, the medical advisor supports the findings that the separation process was appropriate without evidence of error or rendered injustice.

Department of the Air Force Manual 48-123 refers to both Medical Standards Directory (MSD) and DoDI 6130.03, Medical Standards for Military Service: Retention, Vol 2 for specific medical conditions that are disqualifying for continued military service.  The MSD denotes UC as a disqualifying condition identified in line I25 of the directory.  Additionally, DoDI 6130.03 Vol 2 also denotes UC as a disqualifying condition as listed under 5.12, para f, and sub-para (2).  Therefore, at first glance, this diagnosis represents a condition that is disqualifying for continued military service.  However, under section 5.12 of DoDI 6130.03 Vol 2, it clearly states the following: “When considering the conditions listed in this paragraph, the condition must persist despite appropriate treatment and impair function to preclude satisfactory performance of required military duties of the member’s office, grade, rank, or rating. Conditions in this paragraph do not meet retention standards if associated with the inability to maintain normal weight or nutrition, require repeated procedures or surgery, or if the condition requires immune-modulating or immunosuppressant medications.”

In this particular case, none of the criteria listed above were in effect and therefore, under such parameters and according to the DoDI, his diagnosis would not actually support a disqualifying condition or that of an unfit condition.  His condition did not persist despite appropriate treatment; for at his separation physical examination, just three days from his discharge (1 Jun 09), the applicant quoted, “feeling fine, no recent weight change.”

After a detailed review of all submitted and database held medical records, the medical advisor saw no definitive evidence that would support counsel’s reported violations that the applicant did not receive mandatory examinations or timely processing.  The applicant did receive a proper pre-separation physical examination and was properly evaluated, as determined by the appointed medical provider (1 Jun 09).

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 9 Dec 21 for comment (Exhibit D), and the applicant replied on 4 Feb 22.  In his response and through counsel, the applicant again contended he should not have been penalized for the unreasonable delays in his disability processing.  His orders should have been extended to complete the MEB and Physical Evaluation Board (PEB) process if the MEB determined it was appropriate.  The determination of physical unfitness is the role of the PEB.

The applicant’s complete response is at Exhibit E.

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 AFBCMR Medical Advisor and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  Specifically, the Board finds insufficient evidence that the applicant’s medical conditions at the time of his separation were unfitting nor did they warrant referral to an MEB.  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-2021-00659 in Executive Session on 15 Dec 21 and 21 Mar 22:

Panel Chair
Panel Member
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 3 Mar 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, AFBCMR Medical Advisor, dated 6 Dec 21.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 9 Dec 21.
Exhibit E:	Applicant’s Response, dated 4 Feb 21.

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 for Docket Number BC-2021-00659.