RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-01111 COUNSEL: HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: His 20 percent disability rating for medical separation due to diabetes mellitus be changed to a 40 percent rating and a medical retirement. _________________________________________________________________ APPLICANT CONTENDS THAT: The board acknowledged a 40 percent rating but denied the rating based on 60 percent criteria. In support of his request, the applicant submits a copy of a Department of Veterans Affairs Rating and a copy of SAF/MRBP memorandum. The applicant’s complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant enlisted in the Regular Air Force on 30 November 1994. A Medical Evaluation Board (MEB) convened on 4 June 2009 and referred the applicant's case to an Informal Physical Evaluation Board (IPEB) with a diagnosis of diabetes type I. On 18 August 2009, the IPEB found him unfit for further military service and recommended discharge with severance pay with a disability rating of 20%. The applicant did not agree with the findings and recommended disposition of the IPEB and requested a formal hearing. On 23 November 2009, the FPEB found him unfit for further military service based on a diagnosis of diabetes mellitus type I, poor control. The FPEB further recommended discharge with severance pay with a disability rating of 20%. He appealed the FPEB decision to SAF/PC who concurred with the findings and recommendation of the FPEB and directed discharge with severance pay effective 28 September 2010. He served 15 years, 9 months, and 29 days on active duty. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSD recommends denial. DPSD states the Department of Defense and the Department of Veterans Affairs (DVA) disability evaluation systems operate under separate laws. Under Title 10, USC, Physical Evaluation Boards must determine if a member’s condition renders them unfit for continued military service relating to their office, grade, rank or rating. The fact that a person may have a medical condition does not mean that the condition is unfitting for continued military service. To be unfitting, the condition must be such that it alone precludes the member from fulfilling their military duties. If the board renders a finding of unfit, the law provides appropriate compensation due to the premature termination of their career. Further, it must be noted the USAF disability boards must rate disabilities based on the member’s condition at the time of evaluation; in essence a snapshot of their condition at that time. It is the charge of the DVA to pick up where the AF must, by law, leave off. Under Title 38, the DVA may rate any service- connected condition based upon future employability or reevaluate based on changes in the severity of a condition. This often results in different ratings by the two agencies. The preponderance of evidence reflects that no error or injustice occurred during the disability process or with the rating applied at the time of the boards. The DPSD complete evaluation is at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Counsel for the applicant states the FPEB failed to properly rate the applicant in accordance with law and regulations, failed to apply the correct evidentiary standard to its rating determination, and denied him a full and fair hearing. In addition, the SAFPC failed to address the issues raised in his rebuttal as required by Federal law. The advisory opinion did not address any of the substantive arguments raised in the application for correction of military records nor the arguments raised in the SAFPC rebuttal. The applicant’s diabetes met the requirements of a 40% rating and he should have been awarded that rating and permanently retired. The Counsel’s response is at Exhibit E. _________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file. 3. Insufficient relevant evidence has been presented to demonstrate the existence of an error or an injustice. We took notice of the applicant's complete submission in judging the merits of the case and the Board majority does not find that it supports a determination that his disability was improperly rated at the time of his discharge with severance pay. We note the contentions of the applicant and his counsel that his diabetes met the requirements of a 40 percent rating and the applicant should be permanently retired. However, as indicated by the SAFPC who upheld the FPEB decision “Notably missing from the submitted record is documentation of specific glucose readings and disabling hypoglycemic events that differentiate the cautions and regulations given by the endocrinologist from those that would be given to all diabetics taking insulin, a critical difference between the 20 and 40 percent disability rating of the VASRD.” In view of the above and absent persuasive evidence the applicant was denied rights to which entitled, appropriate regulations were not followed, or appropriate standards were not applied, we agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application. _________________________________________________________________ RECOMMENDATION OF THE BOARD: The majority of the panel finds insufficient evidence of error or injustice and recommends the application be denied. _________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2011-01111 in Executive Session on 29 November 2011, under the provisions of AFI 36-2603: By a majority vote, the Board recommended denial of the application. XXX voted to grant the applicant’s request and provided a minority report. The following documentary evidence pertaining to AFBCMR Docket Number BC-2011-01111 was considered: Exhibit A. DD Form 149, dated 8 March 2011, w/atchs. Exhibit B. Applicant’s Master Personnel Records. Exhibit C. Letter, AFPC/DPSD dated 19 April 2011. Exhibit D. Letter, SAF/MRBR, dated 20 May 2011. Exhibit E. Letter, Counsel, dated 19 June 2011. Exhibit F. Minority Report, dated 17 January 2012.