RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-01453

xxxxxxxxxxxxxxxx	COUNSEL: XXXXXXXXXXX

	HEARING REQUESTED: YES	

APPLICANT’S REQUEST

His medical separation with severance pay, 20 percent disability rating, be changed to a medical retirement with a 40 percent disability rating.

APPLICANT’S CONTENTIONS

He was discharged with severance pay (DWSP) with a medical disability rating of 20 percent.  He should have been rated at 40 percent per the Veterans Affairs Schedule for Rating Disabilities (VASRD) code 7913 and given a medical retirement.  The evidence available to the Physical Evaluation Board (PEB) showed his Diabetes Mellitus Type I required one or more daily injections of insulin, a restricted diet, and regulation of activities.  The Department of Veterans Affairs (DVA) rated his condition at 40 percent based on insulin, required regulation of activities and restricted diet.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

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

On 17 Feb 09, AF IMT 618, Medical Board Report, indicates the applicant was referred to the Informal Physical Evaluation Board (IPEB) for Diabetes Mellitus.

On 14 May 09, AF Form 356, Informal Findings and Recommended Disposition of USAF Physical Evaluation Board, indicates the applicant was found unfit due to his medical condition of Diabetes Mellitus, Type I, requiring insulin with a disability compensation rating of 20 percent with a recommendation of DWSP.  The Board noted while the PEB understands that the applicant requires significant lifestyle and diet modifications and even activity restriction, it finds no evidence that he has been advised to avoid all strenuous occupational and recreational activities, a requirement for the 40 percent rating.

On 5 Aug 09, AF Form 1180, Action on Physical Evaluation Board Findings and Recommended Disposition, indicates the applicant disagreed with the findings of the board and requested a formal hearing.

On 13 Oct 09, AF Form 356, Formal Findings and Recommended Disposition of USAF Physical Evaluation Board, indicates the applicant was found unfit due to his medical condition of Diabetes Mellitus, Type I, requiring insulin with a disability compensation rating of 20 percent with a recommendation of DWSP.  

On 14 Oct 09, AF Form 1180, indicates the applicant agreed with the findings and recommended disposition of the Formal PEB.

On 5 Nov 09, the Secretary of the Air Force directed the applicant be separated from active service for a physical disability with severance pay.

On 22 Feb 10, DD Form 214, Certificate of Release or Discharge from Active Duty, reflects the applicant was honorably discharged in the grade of senior airman (E-4) after serving 4 years, 2 months, and 24 days of active duty.  He was discharged, with a narrative reason for separation of “Disability, Severance Pay.”

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 finding no indication an error or injustice occurred at the time the PEB processed his disability case.  An updated DVA rating after separation does not warrant a change to the original PEB disposition.  In support of his claim, the applicant submitted a DVA Rating Decision dated 5 Nov 14.  As noted on the rating decision, the DVA increased his disability rating for his medical condition, Diabetes Mellitus Type I, from 20 percent to 40 percent effective 30 Jan 14, nearly four years after he separated from service.  However, the original DVA Rating Decision dated 19 Apr 10, shortly after separation assigned a 20 percent disability rating which validates the PEB’s decision based on the applicant’s condition at the time.  

On 13 Oct 09 the Formal PEB found the applicant unfitting for Diabetes Mellitus Type I,  Requiring Insulin with a 20 percent combined disability rating and recommended discharge with severance pay under the legacy Disability Evaluation System (DES).  During his FPEB hearing the applicant contended that he should be permanently retired at a rating of 40 percent.  However, the FPEB noted in Block 15, while the service member does have an AF Form 469, Duty Limiting Condition Report, reflecting no time exercises, no field rations and no permanent change of station (PCS), deployment, mobility or temporary duty (TDY), military medical providers have stated the applicant does not require physical limitations, that he can do his job, and all physical activities. While the FPEB understands the applicant requires significant lifestyle and diet modifications and even activity restriction, it finds no evidence that the applicant has been advised to avoid all strenuous occupational and recreational activities, a requirement for the 40 percent rating.

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 VA 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 VA “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.

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 Nov 21 for comment (Exhibit D), and the applicant replied on 6 Dec 21.  In his response, the applicant’s counsel states his disability discharge should be upgraded to a medical retirement with a 40 percent disability rating due to the applicant’s medical diagnosis of diabetes requiring insulin per VASRD code 7913.  The advisory opinion completely ignores the crux of the applicant’s argument.  The FPEB applied the wrong standard when adjudicating his case stating “while the FPEB understands the applicant requires significant lifestyle and diet modifications and even activity restriction, it finds no evidence that he has been advised to avoid all strenuous occupational and recreational activities, a requirement for the 40 percent rating.”  The 40 percent rating, which applied to the applicant at the time of the board, required one or more daily injections of insulin, restricted diet, and regulation of activities.  The only percentage that requires avoidance of strenuous occupational and recreational activities is 100 percent.  The applicant never argued that he should have been considered 100 percent disabled.

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 AFPC/DPFDD 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.

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-2021-01453 in Executive Session on 15 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 2 Mar 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, AFPC/DPFDD, w/atchs, dated 27 Aug 21.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 16 Nov 21.
Exhibit E:	Applicant’s Response, dated 6 Dec 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.