RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-04695 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: His records be corrected to show he was permanently retired for physical disability with a compensable disability rating of 30 percent rather than being discharged with severance pay (DWSP). _________________________________________________________________ APPLICANT CONTENDS THAT: The decision to remove him from the Temporary Disability Retired list (TDRL) and discharge him with severance pay was unjust. As a member of the TDRL, he was supposed to have been re-examined every 18 months but he never was. He was never informed that he had to report for a re-examination of his seizure disorder and has never been re-examined. Both the Department of Veterans Affairs (DVA) and Social Security Administration (SSA) have rated his condition at 80 percent and he is considered totally disabled. His condition has not improved. In support of his appeal, the applicant provides copies of a white paper from the Air Force Disability System web page describing the relationship between the disability system and the AFBCMR, a page from the schedule of ratings – neurological conditions which shows the different ratings for seizures and associated ratings, an information sheet on the TDRL, a diary of his seizure activity, several pertinent pages of information from his service medical record (SMR), and a copy of his 3 Mar 08 retiree account statement. The applicant’s complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: On 30 May 07, the applicant’s case was reviewed by the Informal Physical Evaluation Board (IPEB) which recommended his name be placed on the TDRL with a disability rating of 40 percent. The applicant concurred and was officially placed on the TDRL on 14 Aug 07. On 23 Jan 09, the applicant was notified of his periodic physical evaluation, scheduled to take place on 27 Feb 09. The applicant submitted progress notes from his civilian neurology outpatient clinic appointments called “Can-do” in lieu of having to attend his appointment. The IPEB accepted his “Can-do” progress notes and, on 28 May 09, reviewed the medical information therein and recommended he be removed from the TDRL and DWSP with a 10 percent disability rating. On 3 Jun 09, the IPEB’s findings, which included a statement that his condition had improved and noted that his last seizure had occurred in Nov 08, were mailed to the applicant with instructions to make his election, sign and date the paperwork, and return prior to 28 Jun 09. The applicant was notified that a non- response would indicate his agreement with the findings and recommendations of the IPEB and that his name would be removed from the TDRL. Nothing was received from the applicant and his name was removed from the TDRL and he was duly discharged with entitlement to severance pay, effective 7 Sep 09. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSD recommends denial as a preponderance of evidence reflects that no error or injustice occurred during the disability process. While the applicant contends he was not afforded an opportunity to undergo a TDRL re-evaluation examination for the medical condition for which he was retired, his records indicate that travel orders were issued on 23 Jan 09 notifying him of his periodic physical evaluation to be held on 27 Feb 09. These orders were mailed to the applicant. The applicant submitted “Can-do” paperwork dated 27 Jan 09 from his neurology outpatient clinic which the IPEB reviewed. The recommendation for discharge with severance pay with fact sheets was mailed to the applicant at the same address; however, no response was received, nor was the package returned as being undeliverable. DPSD’s complete evaluation is at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 24 Jan 12 for review and comment within 30 days. As of this date, no response has been received by this office. _________________________________________________________________ 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 error or injustice. We took notice of the applicant's complete submission in judging the merits of the case; however, 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 that 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. _________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application. _________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2011-04695 in Executive Session on 24 May 12, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 21 Nov 11, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSD, dated 21 Dec 11. Exhibit D. Letter, SAF/MRBR, dated 24 Jan 12. Panel Chair