RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-01624

	COUNSEL: NONE

	HEARING REQUESTED: YES	

APPLICANT’S REQUEST

Her disability separation be corrected to a disability retirement.

APPLICANT’S CONTENTIONS

Her quality of life has continued to decline.  She did not want to separate from service but her injuries were affecting her physical training and promotion eligibilities.  She lost her line number to staff sergeant (E-5).  As an airman, she did not fully comprehend the Medical Evaluation Board (MEB) process.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a disability discharged Air Force senior airman (E-4). 

On 5 Nov 10, the MEB referred the applicant to an Informal Physical Evaluation Board (IPEB) for bilateral knee pain.

On 3 Jan 11, the IPEB found the applicant’s bilateral knee pain unfitting with 20 percent compensable disability rating and recommended discharge with severance pay (DWSP).

On 7 Jan 11, the applicant concurred with the IPEB findings and recommended disposition, waived her right to a formal hearing of the case, and did not request a one-time rating reconsideration of the disability rating.  On the same date, the Secretary of the Air Force directed the applicant be separated from active service for physical disability with severance pay.

On 23 Apr 11, the applicant was honorably discharged with narrative reason for separation of, “Disability, Severance Pay, Non-Combat,” and credited with 5 years, 10 months and 10 days of active service.

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.  Based on the documentation provided by the applicant and analysis of the facts, there is no indication an error or injustice occurred at the time the Physical Evaluation Board (PEB) processed her disability case.  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.  The PEB then applies the rating best associated with the level of disability at the time of disability processing (a snapshot in time).  That rating determines the final disposition (discharge with severance pay, placement on the temporary disability retired list, or permanent retirement) and is not subject to change after the service member has separated.  Under the DVA system (Title 38, U.S.C), the member may be evaluated over the years and their rating may be increased or decreased based on changes in the member’s medical condition at the current time.  However, a higher rating by the DVA “based on new and/or current exams conducted after discharge from service” does not warrant a change in the total compensable rating awarded at the time of the member’s separation.

An updated Department of Veterans Affairs (DVA) rating after separation from the Air Force does not warrant change to the original PEB disposition.  Furthermore, the applicant’s current DVA ratings still would not support upgrade to a disability retirement under the Disability Evaluation System (DES).  The applicant was DWSP on 23 Apr 11.   According to her DVA records the original DVA rating decision was completed on 30 Aug 11 which determined that her bilateral knee pain was not service connected and not subject to disability compensation.  The DVA did not service connect these conditions until 18 Apr 13 after several appeals, retroactive to her separation from the Air Force.  The applicant’s most recent DVA rating decision is dated 12 Nov 20 and it is noted that the diagnosis for her bilateral knee conditions were re-diagnosed to chondromalacia, osteoarthritis, and quadriceps tendinopathy of the left and right knee but continued the original 10 percent rating for each knee.

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 22 Nov 21 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.  Specifically, the Board finds no evidence that warrants a change to the applicant’s compensable disability rating assigned by the IPEB.  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.

4.  The applicant has not shown a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved.

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-2021-01624 in Executive Session on 15 Dec 21 and 23 Dec 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, w/atchs, dated 4 Mar 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, AFPC/DPFDD, dated 7 Jul 21.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 22 Nov 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.