RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-00782

XXXXXXXXXXXXXX	COUNSEL: NONE	 

  	HEARING REQUESTED: NO	

APPLICANT’S REQUEST

1. He be medically retired based on the findings of the Department of Veterans Affairs (DVA) and Social Security Disability Insurance (SSDI) that he is fully disabled due to the conditions established before his separation. 

2.  He be granted Combat Related Special Compensation (CRSC) for his injury that occurred during Basic Military Training (BMT), Basic Expeditionary Airmen Skills Training Week (BEAST Week) as a combat-related activity.  

APPLICANT’S CONTENTIONS

It has taken almost a decade to get the right doctors and the right diagnoses.  There was not enough done in the military to address the symptoms.  His symptoms exceeded that of an ankle injury but he could not get appointments with specialists.  No one could prepare him for the physical and mental torture he went through with the continual misdiagnosed conditions and his 8 year on-going battle. He asks for the right thing to be done.  A medical retirement will afford him TRICARE benefits.  His ability to earn money will forever be limited to what the Department of Defense (DoD), DVA and Social Security will provide.  With this in mind, he requests he be granted CRSC so he may receive a military pension alongside his D VA disability.  His injury was from twisting his ankle during BEAST Week, the environment meant to prepare one for the realities of war.  A perpetual war game of constant controlled mental, emotional and physical abuse.  Thus, meeting the criteria of CRSC under combat related activities, like war simulation.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former Air Force airman first class (E-3).

On 12 Jan 12, a medical evaluation board (MEB) was convened for his in the line of duty (ILOD) condition of right ankle sprain, with possible stress fracture and continued ankle pain.  

The MEB Commander’s Evaluation dated 24 Jan 12 states the applicant was injured while on a formation run at BMT.  His injury did not heal properly and continued to cause problems for the applicant.  He was placed in duties not to include flying (DNIF) status and was unable to attend his technical training and serve in his Air Force Specialty Code (AFSC).  His commander recommended he be separated.  The MEB referred his case to the informal physical evaluation board (IPEB).

On 15 Feb 12, the IPEB recommended the applicant be discharged with separation pay (DWSP) with a disability rating of 20 percent for his unfitting condition of right ankle pain due to sprain with talofibular ligament injury.  His condition was determined not to have been incurred during the performance of duty in combat-related operations as designated by the Secretary of Defense and not combat related.  

On 21 Feb 12, the applicant disagreed with the findings of the IPEB and requested a formal hearing.

On 9 Apr 12, the formal physical evaluation board (FPEB) recommended the applicant be DWSP for his unfitting condition of right ankle pain due to sprain with talofibular ligament injury. The FPEB noted the applicant contended his condition should be coded under the Veterans Administration Schedule for Rating Disabilities (VASRD) Code 5284, Foot Injury.  However, the FPEB concluded his condition was most appropriately coded as VASRD Code 5271, Limitation of Motion of Ankle, as his condition was clearly an ankle injury

On 11 Apr 12, the applicant agreed with the findings of the FPEB.  

On 18 Apr 12, the Secretary of the Air Force Personnel Council (SAFPC) directed the applicant be DWSP.  

On 9 Jul 12, the applicant was honorably discharged with a narrative reason of separation of “Disability, Severance Pay, Non-Combat Related.”

The DVA Rating Decision dated 13 Feb 13, shows he received a combined rating of 60 percent for his listed service connected conditions.  Service connection for status post right ankle Brostrom talofibular ligament repair, with residual sprain was granted with an evaluation of 10 percent, effective 10 Jul 12.  Service connection for status post right foot trauma was granted with an evaluation of 10 percent, effective 10 Jul 12.  On 3 Dec 14, the DVA increased his rating for right foot trauma to 20 percent, with an effective date of 26 Aug 14.  

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

APPLICABLE AUTHORITY/GUIDANCE

Public Law 107-314 established the CRSC program enacted by Congress on 2 Dec 02.  It provides compensation to certain retirees with combat-related disabilities that qualify under established criteria.  

Per 10 U.S.C. § 1413a and the DoD Financial Management Regulation, Vol 7B, Chapter 6, when making combat-related determination, with regard to Armed Conflict, Hazardous Service, Simulation of War or an Instrument of War.  The DVA awards service connected disabilities based on their status.  While service connection for disabilities is required for initial eligibility for CRSC consideration, the CRSC program is designed to provide compensation for combat-related injuries and its standards are much more rigorous when determining if claimed disabilities qualify as combat related.  Eligible Air Force retirees should submit a DD Form 2860, Claim for Combat Related Special Compensation, to their Military Department, to the Air Force Personnel Center.  

AIR FORCE EVALUATION

The Medical Advisor recommends denial of medical retirement.  Due to the allegation not all evidence was considered in adjudicating his case, the Medical Advisor provides an exhaustive chronology of care.  

The applicant disagrees with the disability rating and choice of VASRD code used by the Military Department to rate his unfitting medical condition, analogized as a condition affecting ankle range of motion, versus a foot injury.  The IPEB and FPEB utilized VASRD code 5271, Marked-Limited Motion of Ankle, with 20 percent disability.  The applicant requests VASRD 5284, severe foot injury with 30 percent.  However, his injury under VASRD 5284 did not reach the threshold for assignment of a 30 percent disability, as also noted by the DVA, which assigned a separate rating of only 10 percent for his foot injury.  While the DVA issued two separate disability ratings for his foot and ankle conditions, being careful to avoid pyramiding disability ratings, the Military Department acted within its authority to find only his anterior talofibular ligament tear as unfitting, with the issuance of the highest disability rating commensurate with its impact upon his ankle range of motion.  Further, although his surgical procedure was in relative close proximity to his established date of discharge, it was not a justification to place him on the temporary disability retired list (TDRL), or for assignment of a rating following repair of his torn anterior talofibular ligament.

Under the rescinded DoDI 1332.39, Application of the Veterans Administration Schedule for Rating Disabilities, Military Departments had the authority for assignment of a 100 percent disability rating when an individual’s inability to sustain gainful employment was taken into consideration.  The applicant was granted benefits under SSDI but his clinical status as an employed active duty member at the time of disability processing did not manifest nor was projected to manifest as a medical condition that would permanently render him unemployable at the “snapshot” time of his discharge, notwithstanding the expected time for post-operative recovery and rehabilitation.  

With respect to his contention, he would qualify for CRSC, given he was injured during BEAST Week of BMT, DoDI 1332.18, Disability Evaluation System, reads, In the Performance of Duty Under Conditions Simulating War, generally disabilities from military training, such as war games, practice alerts, tactical exercises, airborne operations, leadership reaction courses, grenade and live fire weapons practice, bayonet training, hand to hand combat training, repelling and negotiation of combat confidence and obstacles may be considered under CRSC.  However, it does not include physical training activities, such as calisthenics and jogging or formation running and supervised activities.  

The applicant is also advised, under Title 10 United States Code (U.S.C.), the Military Department only offers compensation for conditions causing career termination, with the disability rating(s) based upon the level of impairment present at the “snapshot” time of final military disposition;’ and not based upon future progression of injury or disease, or onset of secondary service-connected medical conditions.  On the other hand, the DVA, operating under 38 U.S.C., is authorized to offer compensation for any and all medical conditions, determined service connected without regard to their proven demonstrated impact upon a former service member’s retainability or fitness to serve.  The DVA is also empowered to adjust disability ratings over the lifetime of the veteran.  

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 14 Jul 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 the BCMR Medical Advisor and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The applicant contends the Air Forced failed to appropriately address his symptoms and requests a medical retirement.  He further contends his ankle injury incurred in BMT qualified for CRSC.  However, the Board finds no evidence the applicant was improperly discharged with severance pay (DWSP).  Moreover, the applicant was afforded all due process and appeal rights and on 11 Apr 12, he concurred with the findings of the FPEB’s recommendation he be DWSP for his right ankle injury.    The applicant’s ankle injury during BMT also does not meet the criteria for CRSC per 10 U.S.C. § 1413a and the DoDFMR.  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-2021-00782 in Executive Session on 18 Aug 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 20 Sep 20.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, BCMR Medical Advisor, dated 9 Jul 21.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 14 Jul 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.