RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-01867

XXXXXXXXXXXXXXX	COUNSEL: NONE
	 
 	HEARING REQUESTED: NO 

APPLICANT’S REQUEST

His discharge with severance pay (DWSP) be upgraded to a disability retirement.  

APPLICANT’S CONTENTIONS

The Department of Veterans Affairs (DVA) changed the Veterans Affairs Schedule for Rating Disabilities (VASRD) code for his condition during the evaluation process and increased his rating to 40 percent, making him eligible for a medical retirement.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

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

On 11 Jul 19, the formal physical evaluation board (FPEB) recommended the applicant be DWSP with a compensable rating of 20 percent for his condition of right brachial plexopathy due to traumatic thoracic outlet syndrome; DVA rated as right thoracic outlet syndrome, brachial plexus disorder (dominant).  

On 17 Jul 19, the applicant agreed with the findings and recommended disposition of the FPEB.

On 24 Jul 19, the Office of the Secretary of the Air Force determined the applicant was physically unfit for continued military service and directed he be honorably DWSP per 10 U.S.C. § 1203.

On 27 Sep 19, the applicant was honorably discharged, with narrative reason for separation of “Disability, Severance Pay, Non-Combat, Related Integrated Disability Evaluation System (IDES).”  He was credited with 3 years, 8 months and 2 days of active duty service.  

The applicant provides DVA Rating decision dated 5 Feb 21, increasing his disability rating to 40 percent for his brachial plexus disorder (dominant), effective 28 Sep 19, with VASRD Code 8512.    The DVA received the applicant’s request for a higher-level review on 22 Sep 20.  The DVA received additional evidence after the record closed that was not considered as part of the decision.  

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

APPLICABLE AUTHORITY/GUIDANCE

DoDI 1332.18, Disability Evaluation System (DES) Manual: Integrated Disability Evaluation System (IDES), Volume 2, 3(a)(17), Correct the records, upon application by former Service members who successfully appeal disability ratings received in the IDES to DVA and the respective Military Department Board for Correction of Military Records (BCMR).  

AIR FORCE EVALUATION

AFPC/DPFDD recommends denial.  An updated DVA rating after separation from the Air Force does not warrant a change to the original PEB disposition.  The Air Force and the DVA disability systems operate under separate laws.  Under the Air Force system, 10 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.  The PEB then applies the rating best associated with the level of disability at the time of disability processing (a snapshot in time).  The rating determines the final disposition and is not subject to change after the member has separated.  Under the DVA system, 38 U.S.C., the member may be evaluated over the years and their rating may be increased or decreased based on the changes in their medical condition.  However, a higher rating by the DVA does not warrant a change in the total compensable rating awarded at the time of the member’s separation.  On 17 Jul 19, he concurred with the FPEB findings but did not request a DVA Rating Reconsideration Request as a last appeal effort through the IDES for increase to his disability rating.  

The complete advisory is at Exhibit C.  

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 20 Jan 22 for comment (Exhibit D), but has received no response.

The applicant’s complete response is at Exhibit E.

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 the victim of an error or injustice.  While the Board notes the recommendation of AFPC/DPFDD against correcting the record, the Board finds a preponderance of the evidence substantiates the applicant’s contentions.   In this respect, the Board notes on 5 Feb 21, the Department of Veterans Affairs (DVA) increased his disability rating to 40 percent for his brachial plexus disorder (dominant), effective 28 Sep 19, the date following his discharge from active duty.  The Board concludes that since the DVA rating decision for service connection was within one year of his discharge from military service, and the issue remained effectively open since that time, the applicant’s DWSP with a 20 percent was not a settled issue.  IN addition, the Board finds the further review of his disability rating was a continuation of the initial rating for the condition.  Therefore, the Board recommends correcting the applicant’s records as indicated below.  

RECOMMENDATION

The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show:

a.	On 11 Jul 19, he was found unfit to perform the duties of his office, rank, grade, or rating by reason of physical disability; incurred while he was entitled to receive basic pay; the diagnosis in his case was right brachial plexopathy due to traumatic thoracic outlet syndrome; rated by DVA as right thoracic outlet syndrome, brachial plexus disorder (dominant), that his condition was under VASRD code 8512, rated at 40 percent; that the degree of impairment was permanent; that the disability was not due to intentional misconduct or willful neglect; that the disability was not incurred during a period of unauthorized absence; and that the disability was not received as a direct result of armed conflict or caused by an instrumentality of war.  

b.	On 27 Sep 19, he was released from active duty by reason of physical disability, with a disability rating of 40 percent and permanently retired effective 28 Sep 19; instead of discharged, with severance pay on 27 Sep 19. 

c.	His election of the Survivor Benefit Plan (SBP) option will be corrected in accordance with his expressed preferences and/or as otherwise provided for by law or the Code of Federal Regulations.  

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-2021-01867 in Executive Session on 23 Feb 22:

 , Panel Chair
 , Panel Member
 , Panel Member

All members voted to correct the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 7 Apr 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, AFPC/DPFDD, dated 7 Jun 21.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 20 Jan 22.

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.