RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-02425

XXXXXXXXX	COUNSEL: XXXXXXXXXX
	
	HEARING REQUESTED: NO

APPLICANT’S REQUEST

His removal from the Temporary Disability Retired List (TDRL) and Discharged with Severance Pay (DWSP) be changed to a permanent disability retirement.

APPLICANT’S CONTENTIONS

He should have been medically retired with a disability compensation rating of 40 percent consistent with his Department of Veterans Affairs (DVA) disability rating for his Type I, Insulin-dependent Diabetes.  He currently uses a full-time insulin pump, requires dietary restrictions, and has significant restrictions in his life (home and work activities).  Furthermore, he has a regulatory right to an in-person appearance at a Formal Physical Evaluation Board (FPEB).  AFI 36-3212, Physical Evaluation for Retention, Retirement, and Separation, states, if a service member requests an FPEB hearing, he or she may appear either in person, telephonically, or by video teleconference.  The memorandum signed the Chief of the Physical Disability Division effectively suspending all in-person hearings for the duration of the Secretary of Defense's stop movement policy.  The applicant understood then and agrees now, the USAF has the authority to allow for telephonic or video teleconferences; however, telephonic appearance requires an affirmative election by the Airman; the President of the FPEB cannot suspend a respondent’s right to an in-person hearing.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former Air Force second lieutenant (O-1).

On 4 Oct 17, AF IMT 618, Medical Board Report, indicates the applicant was referred to the Informal Physical Evaluation Board (IPEB) for Type I Diabetes, Mellitus without complications.

On 9 Oct 17, the applicant submitted a letter and evidence to the IPEB to convey his desire to be found fit for duty.

On 24 Oct 17, the DVA proposed a disability rating for his Category I unfitting medical condition of Diabetes Mellitus, Type I at 20 percent.  

On 27 Oct 17, 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 with a disability compensation rating of 20 percent with a recommendation of “DWSP.”  

On 15 Nov 17, 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 8 Jan 18, the applicant’s counsel submitted evidence to the FPEB requesting the applicant be found fit and returned to duty.

On 9 Jan 18, 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 with a disability compensation rating of 20 percent with a recommendation of “DWSP.”  The board noted a letter from endocrinology, dated 16 Feb 17, which stated the applicant was advised to avoid strenuous occupational and recreational activities as they can adversely affect blood sugar…careful adjustment of insulin and frequent monitoring of blood sugar during activity must occur.

On 22 Jan 18, AF Form 1180, indicates the applicant disagreed with the findings of the board and requested his case be referred to SAFPC for review and final decision.  The applicant also requested a one-time reconsideration of his disability rating for his unfit condition.

On 14 Mar 18, the applicant’s counsel submitted evidence to SAFPC requesting the applicant be found fit and returned to duty.

On 7 May 18, Memorandum from SAF/MRBP indicates the applicant’s case was reviewed by the Personnel Board of SAFPC and upheld the previous Boards’ decisions of DWSP at 20 percent finding the applicant’s condition renders him ineligible to deploy and, because of the inherent risks associated with his condition in any environment, he is unfit for continued military service.  

On 11 May 18, the applicant’s counsel requested a one-time rating reconsideration of proposed disability evaluation system (DES) rating decision.

On 31 May 18, the DVA proposed a disability rating for his Category I unfitting medical condition of Diabetes Mellitus, Type I at 40 percent.  

On 9 Jul 18, AF Form 356, SAFPC 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 with a disability compensation rating of 40 percent with a recommendation of “Temporary Retirement – Reevaluate in six months.”  
Dated 13 Jul 18, Special Order XXXXX, indicates the applicant was placed on the TDRL in the grade of first lieutenant with a compensable percentage for physical disability of 40 percent, effective 29 Oct 18.

On 27 Jan 20, 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 with a disability compensation rating of 20 percent with a recommendation of “TDRL to DWSP.”  The board noted that although the applicant is restricted from participating in overly strenuous activities such as running long distances greater than five miles and swimming greater than 1 kilometer, these activities are not occupationally or lifestyle limiting, and they well exceed the minimum physical fitness requirements to meet deployment criteria and Air Force fitness standards.  However, the applicant still requires injectable medications that require frequent or special handling that cannot be assured in austere environments.

On 16 Feb 20, Attachment 1, the Action on the Findings and Recommended Disposition of the USAF Physical Evaluation Board, indicates the applicant did not concur with the recommended findings and requested an appearance before the FPEB at JBSA, Randolph AFB, TX.

On 17 Mar 20, the applicant’s counsel requested a rescheduling of the applicant’s 9 Apr 20 hearing date since in-person hearings were restricted due to COVID-19.  On 24 Mar 20, the request was approved with a new hearing date to be determined.

On 14 Jul and 16 Aug 20, the applicant’s counsel submitted petitions to the Board requesting the applicant’s disability rating, consistent with the DVA, be changed to 40 percent and he be medically retired.

On 4 Aug 20, AF Form 356, indicates the applicant was found unfit due to his medical condition of Diabetes Mellitus, Type I with a disability compensation rating of 20 percent with a recommendation of “TDRL to DWSP.”  The board noted the applicant’s condition is stable and remains unfitting for continued military service.  In addition, the applicant’s condition is best characterized as, “requiring one or more daily injections of insulin and restricted diet…” which is consistent with a disability rating of 20 percent under diagnostic code 7913, per the Veterans Administrations Schedule for Rating Disabilities (VASRD).

On 10 Aug 20, AF Form 1180, indicates the applicant disagreed with the findings of the board and requested his case be referred to SAFPC for review and final decision.  The applicant also requested a one-time reconsideration of his disability rating for his unfit condition.

Dated 8 Oct 20, SAFPC Memorandum indicates the applicant’s case for appeal to the Air Force Personnel Board (AFPB) was not considered.   The following was noted in the memorandum, in accordance with paragraph 5.4 of AFI 36-3212, Physical Evaluation for Retention, Retirement, and Separation, only appeals meeting at least one of the following criteria are referred to the AFPB for consideration: (1) new and compelling evidence not previously considered, (2) evidence to substantiate allegations of fraud, misrepresentation, or abuse of discretion during IDES process, or (3) allegations of misapplication of law or policy.  It was noted that the applicant’s appeal was thoroughly reviewed, but did not meet any of the above criteria.  While the board is not unsympathetic to the effect a diagnosis of diabetes can have on the applicant’s life there is no new medical evidence that supports an appeal of the FPEB decision.  Therefore, in accordance with paragraph 5.4.1.1.4, the previous PEB determination is final.

Dated 21 Oct 20, Special Order XXXXXX, indicates the applicant was removed from the TDRL and discharged in the grade of second lieutenant with entitlement to severance pay, effective 10 Nov 20.

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

AIR FORCE EVALUATION

AFPC/DPFDC recommends denying the applicant’s request for a permanent disability retirement.  After a full review from the IPEB of the TDRL re-evaluation, IPEB recommends disapproval of applicant’s request to change his rating for Diabetes Type 1 from 20 percent to 40 percent and concurs with the FPEB’s 4 Aug 20 recommendation.  A rating of 40 percent for Diabetes requires the following: “one or more daily injections of insulin, restricted diet, and regulation of activities.”  At the time of his FPEB hearing, the following was documented: “He is currently in his second year of training as an emergency physician.  He uses an insulin pump and a continuous glucose monitoring device to manage his condition.  He remains under very good control, as evidenced by his most recent hemoglobin A1C of 5.8 percent.  He is followed every six months by his endocrinologist who notes the applicant is doing “excellent,” with his condition well-controlled and without complications.”  There is no indication that a regulation of his activities was required at that time, and therefore the rating from the FPEB was correct.  The applicant also contends that he was entitled to an FPEB hearing in-person and that “there is no authority for the proposition they can mandate a telephonic hearing and deny in-person appearance.”  This argument is incorrect.  Due to the pandemic, in-person hearings were discontinued and a determination was made that telephonic FPEB hearings met the legal standard under DoDI 1332.18, Disability Evaluation System.  If the member believes his Diabetes has deteriorated since leaving the service, he may petition the DVA to request an increase in his rating in accordance with the VASRD Code 7913.

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 21 Jan 22 for comment (Exhibit D), and the applicant replied on 11 Feb 22.  In his response, the applicant’s counsel contends the advisory opinion states “There is no indication that a regulation of his activities was required at that time, and therefore the rating from the FPEB was correct.”  This statement is entirely unsupported.  The applicant testified at the hearing and demonstrated his activities are significantly restricted. The Department of Defense regulation cited by the Board covers both Type I and Type II Diabetes, where a person on insulin may not be on short-acting insulin and does not carry the same risk of hypoglycemia and thus may not have to regulate activities. This, however, does not apply to the applicant. He has limitations. The limitations occur at work (his ability to practice solo) and at home (his ability to engage in spontaneous activities).  

The second argument is equally erroneous.  It is stated the applicant contends “he was entitled to an in-person FPEB hearing.”  The statement is not the applicant’s argument.  He had a hearing.  Under applicable guidance, he had a right to an in-person hearing, and there is no authority for the proposition they can mandate a telephonic hearing and deny an in-person appearance.

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 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 found the applicant’s desired rating of 40 percent for Diabetes requires one or more daily injections of insulin, restricted diet, and regulation of activities. There was no indication that a regulation of his activities was required at the time of his boards, therefore, the rating of 20 percent is better fitted for his condition.  In regards to the applicant’s argument he was entitled to an in-person FPEB hearing and that there is no authority for the proposition they can mandate a telephonic hearing and deny in-person appearance is incorrect.  The memorandum signed the Chief of the Physical Disability Division effectively suspending all in-person hearings due to the pandemic for the duration of the Secretary of Defense's stop movement policy.  A determination was made that telephonic FPEB hearings met the legal standard under DoDI 1332.18, Disability Evaluation System.  Therefore, the Board recommends against correcting the applicant’s records.

RECOMMENDATION

The Board recommends informing the applicant the evidence did not demonstrate material error or injustice, 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-2021-02425 in Executive Session on 27 Apr 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/atch, dated 3 Jun 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, AFPC/DPFDC, w/atch, dated 17 Nov 21.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 21 Jan 22.
Exhibit E:	Applicant’s Response, dated 11 Feb 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.