RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-01923

XXXXXXXXXX	COUNSEL: NONE
	
	HEARING REQUESTED: NOT INDICATED

APPLICANT’S REQUEST

His record be corrected to show that he was medically retired or medically discharged.

APPLICANT’S CONTENTIONS

In 1987, he had a head injury and broke his nose leading to a concussion.  Upon returning from Saudi Arabia, his A1C level was over 300 but it was not addressed.  The Department of Veteran Affairs (DVA) informed him he needed a complete knee replacement which should have been done while he was in service.  His lower spine needs to be fused.  Additionally, he was showing signs of Irritable Bowel Syndrome (IBS) and the hospital thought he had appendicitis but it was IBS.  All of these issues are enough to prove that he should have been medically retired.  

In support of his request , the applicant submits a personal statement, copies of a progress note dated 1 Jan 19, his DD Form 214, Certificate of Release or Discharge from Active Duty and his DVA Rating Decision dated 15 Jan 19.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

On 30 Apr 95, the applicant was honorably discharged in the grade of sergeant (E-4) after serving 9 years, 1 month and 17 days on active duty.  His narrative reason for separation is “Early Release Program – Special Separation Benefit.”

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

AIR FORCE EVALUATION

The Medical Advisor recommends denying the application.  There is no evidence the applicant was ever medically seen for any of the self-reported conditions, ever placed on a duty limiting condition profile for a physical condition, nor has there been any documentation provided to show that he had a potentially unfitting medical condition that would or should have been referred to the Medical Evaluation Board (MEB).  Although the applicant did provide the DVA summary of benefits it remains paramount to brief the difference between the military and DVA disability evaluation.  For awareness sake, the military’s Disability Evaluation System, established to maintain a fit and vital fighting force, can by law, under Title 10, United States Code (U.S.C.), only offer compensation for those service incurred diseases or injuries which specifically rendered a member unfit for continued active service and were the cause for career termination; and then only for the degree of impairment present at the “snapshot” time of separation and not based on future progression of injury or illness.  On the other hand, operating under a different set of laws (Title 38, U.S.C.), with a different purpose, the DVA is authorized to offer compensation for any medical condition determined service incurred, without regard to and independent of its demonstrated or proven impact upon a service member’s retainability, fitness to serve, or the length of time since date of discharge.  The applicant may choose to submit new evidence especially his medical treatment records from all sources, both military and civilian, for a reconsideration of his case.

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 19 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 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 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-2021-01923 in Executive Session on 23 Feb 22:

, 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 15 May 19.
Exhibit B:  Relevant excerpt from Military Human Resource Record
Exhibit C:	Advisory Opinion, Medical Advisor, dated 13 Jan 22.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 22 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.