RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: 01-02822
COUNSEL: DAV
HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS THAT:
He be medically retired.
_________________________________________________________________
THE APPLICANT CONTENDS THAT:
He should have been medically retired from the Air Force since the
Department of Veterans Affairs (DVA) has awarded him a compensable
disability rating of 40%.
The applicant states that he was never examined by XXXXX, although his name
appears on all of his compensation reviews. His discharge medical records
indicated that he may have a heart murmur; however, no tests were ever
taken. Four years ago tests revealed that he has pericardial disease,
aortic valve disorder, and refraction disorder. He also had kidney tests
performed seven years ago which revealed acute glomeruhonephritis, also a
symptom reported during his discharge processing.
Applicant’s complete submission, with attachments, is at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
On 30 July 1980, the applicant enlisted in the Regular Air Force. He was
progressively promoted to the grade of sergeant (E-4).
A Medical Evaluation Board (MEB) convened on 4 April 1985 for the purpose
of determining the applicant’s fitness for continued service. Based on the
diagnosis of Discoid Lupus, the MEB recommended he be returned to duty.
The applicant did not agree with the recommendations and findings of the
MEB and requested consideration by an Informal Physical Evaluation Board
(IPEB).
On 20 August 1985, an IPEB convened and determined that based on the
diagnosis of Discoid Lupus - exogenous obesity, which was not unfitting, he
should be returned to duty.
The applicant underwent a separation physical on 22 January 1988 and was
found qualified for continued service.
On 28 March 1988, the applicant was honorably discharged under the
provisions of AFR 39-10 (Expiration Term of Service (ETS)) and was issued a
Reenlistment Eligibility (RE) code of 3D. He completed a total of 7 years,
7 months, and 12 days of active service.
On 22 August 2000, the DVA awarded the applicant a combined compensable
disability rating of 40% (i.e., 30% - Lupus Erythematousus, 10% - Psoriasis
Vulgaris, and 0% - Hearing Loss Left Ear).
Applicant’s Performance Profile follows:
PERIOD ENDING OVERALL EVALUATION
29 Jul 81 9
29 Jul 82 9
29 Jul 83 9
29 Jul 84 w/Letter of Eval (LOR) 9
26 Nov 84 9
26 Nov 85 w/LOE 9
26 Nov 86 9
26 Nov 87 9
_________________________________________________________________
AIR FORCE EVALUATIONS:
The BCMR Medical Consultant recommends the application be denied. The BCMR
Medical Consultant states, in part, that during the applicant’s years of
service, he was treated for the conditions for which he now receives DVA
compensation. However, these conditions did not progress to the point of
rendering him unfit for duty and his ETS discharge was appropriate without
consideration in the disability evaluation system. When first evaluated by
the DVA in November 1988, he was allowed a 0% rating because his conditions
were not considered incapacitating. Only later, was he awarded
compensation which totals 40%.
The BCMR Medical Consultant states that the reason why the applicant could
be declared fit for duty or discharge by the Air Force and later granted a
service-connected disability by the DVA lies in understanding the
differences between Title 10, USC and Title 38, USC. Title 10 USC is the
federal statute that charges the service secretaries with maintaining a fit
and vital force. For an individual to be considered unfit for military
service, there must be a medical condition so severe that it prevents
performance of any work commensurate with rank and experience. Once this
determination is made, namely that the individual is unfit, disability
rating percentage is based upon the member’s condition at the time of
permanent disposition, and not upon possible future events. In the
applicant’s case, his conditions did not render him unfit for continued
military service and ETS separation was appropriately recommended.
Congress, very wisely, recognized that a person can acquire physical
conditions that, although not unfitting at the time of separation, may
later progress in severity and alter the individual’s lifestyle and future
employability. With this in mind, Title 38, USC which governs the DVA
compensation system was written to allow awarding compensation ratings for
conditions that are not unfitting for military service. This is the reason
why an individual can be considered fit for duty, and yet soon thereafter
receive a compensation rating from the DVA for a service-connected, but
militarily non-unfitting condition.
The BCMR Medical Consultant evaluation is at Exhibit C.
AFPC/DPPD recommends the application be denied. AFPC/DPPD states, in part,
that a review of the applicant’s records indicate he was reasonably capable
of performing his military duties right up until the time of his voluntary
discharge. This is confirmed in his performance reports and the review of
his medical records in accordance with AFR 160-43 just prior to his
separation.
The AFPC/DPPD evaluation is at Exhibit D.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:
Complete copies of the Air Force evaluations were forwarded to the
applicant on 15 February 2002, for review and response. 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 probable error or injustice warranting the applicant's
permanent retirement by reason of physical disability. We note that on 20
August 1985, an Informal Physical Evaluation Board (IPEB) determined that
based on the diagnosis of Discoid Lupus - exogenous obesity, which was not
unfitting, the applicant should be returned to duty. Furthermore, he
underwent a separation physical on 22 January 1988 and was found qualified
for continued service. It appears the applicant believes the Department of
Veterans Affairs (DVA) decision to award him a combined compensable
disability rating of 40% (i.e., 30% - Lupus Erythematousus, 10% - Psoriasis
Vulgaris, and 0% - Hearing Loss Left Ear), substantiates that his condition
should have been rated higher by the Air Force. However, we note that
although the Air Force is required to rate disabilities in accordance with
the DVA Schedule for Rating Disabilities, the DVA operates under a totally
separate system with a different statutory basis. In this respect, we note
that the DVA rates for any and all service-connected conditions, to the
degree they interfere with future employability, without consideration of
fitness. Whereas, the Air Force rates a member's disability at the time of
separation. In the applicant's case, the Air Force considered his
conditions but did not find them unfitting. Therefore, in the absence of
evidence to the contrary, we find no compelling basis to recommend granting
his request for a medical retirement.
_________________________________________________________________
THE BOARD DETERMINES THAT:
The applicant be notified that the evidence presented did not demonstrate
the existence of material error or injustice; that the application was
denied without a personal appearance; and that 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 Docket Number 01-02822 in
Executive Session on 19 March 2002, under the provisions of AFI 36-2603:
Mr. Frederick R. Beaman, III, Panel Chair
Mr. Clarence D. Long, III, Member
Ms. Carolyn B. Willis, Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 24 Sep 01, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, BCMR Medical Consultant, dated 17 Jan 02.
Exhibit D. Letter, AFPC/DPPD, dated 7 Feb 02.
Exhibit E. Letter, SAF/MRBR, dated 15 Feb 02.
FREDERICK R. BEAMAN, III
Panel Chair
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