RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: 01-03585
COUNSEL: NONE
HEARING DESIRED: YES
_________________________________________________________________
APPLICANT REQUESTS THAT:
Her disability percentage of 60% be increased to 100%.
_________________________________________________________________
THE APPLICANT CONTENDS THAT:
She was denied an opportunity to appeal the decision of the Formal Physical
Evaluation Board (FPEB) that convened on 17 October 2001.
The applicant states that on 18 October 2001 she indicated her intent to
submit an appeal to the Air Force Personnel Board (AFPB) via the formal
board. After a week of attempts to produce a written rebuttal, she
realized she was physically incapable of doing so and was authorized to
submit an audiocassette submission. However, since she was awaiting her
lawyer’s approval and given the current mail restrictions due to the
anthrax threats, her appeal package arrived a few days after her 1 November
2001 suspense for submitting her rebuttal. In addition, since her attorney
did not notify his staff that her rebuttal tape was on its way, his staff
submitted notification to the AFPB that no rebuttal was received. In view
of this, her case was processed under the FPEB decision to temporarily
retire her with a 60% disability rating. She is distraught that the Air
Force Personnel Center (AFPC) would not make an exception in her case since
there were obviously extenuating circumstances to her deadline not being
met.
Applicant’s complete submission, with attachments, is at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
On 19 April 2001, a Medical Evaluation Board (MEB) convened to determine
whether the applicant should be continued on active duty because of
persistent neurological and/or emotional conditions which, despite adequate
treatment, interfered with her effective performance of duties. Based on
the diagnoses of cervicalgia with radiculopathy, degenerative disc disease,
ulnar neuropathy, headache, depression, demylelination, and chronic pain
syndrome, they referred her to an Informal Physical Evaluation Board
(IPEB).
On 10 September 2001, an IPEB convened and determined that based on the
diagnoses of multiple sclerosis associated with cervicalgia with ulnar
radiculopathy, depression, and headaches of mixed etiology, VASRD 8018-
8105, she be permanently retired with a 50% disability rating. The IPEB
indicated that the applicant suffered from a variety of conditions which
were manifested by overlapping symptoms, any of which singularly would
probably not prevent her from performing duties commensurate with her
office, grade, rank, or rating, but jointly rendered her unfit for further
military duty. The applicant did not agree with the findings and
recommendations of the IPEB and demanded a formal hearing before a Formal
Physical Evaluation Board (FPEB).
On 17 October 2001, a FPEB convened and based on the diagnoses of multiple
sclerosis associated with cervicalgia with ulnar radiculopathy, depression,
and headaches of mixed etiology, VASRD 8018-8105, rated at 50%, and
fibromyalgia, VASRD 5025, rated at 20%, recommended she be temporarily
retired with a 60% disability rating. The FPEB noted that the current
compensable rating reflected great benefit of doubt given to the applicant
because the depressive symptoms so overlapped the other symptoms. The
applicant did not agree with the findings and recommendation of the FPEB
and indicated her desire to submit a rebuttal. The applicant had until 1
November 2001 to submit her rebuttal. On 2 November 2001, AFPC/DPPD
indicated that no rebuttal was received by close of business 1 November
2001.
Effective 25 December 2001, the applicant was placed on the Temporary
Disability Retired List (TDRL) with a compensable disability percentage of
60%. The applicant completed 18 years, 3 months, and 24 days of active
service.
_________________________________________________________________
AIR FORCE EVALUATIONS:
The BCMR Medical Consultant recommends granting her present request for
further consideration by the AFPB while she is receiving her current 60%
disability. The BCMR Medical Consultant states, in part, that there is no
question the applicant suffers from several debilitating illnesses, and it
is conceivable that her failure to submit her appeal to the FPEB in their
allotted time frame could have been contributed to by her physical
condition. The decision of the AFPB should determine whether or not she
continues on the TDRL at her present level or at some other disability
level.
The BCMR Medical Consultant evaluation is at Exhibit C.
AFPC/DPPD recommends the application be denied. AFPC/DPPD states, in part,
that they are unable to rationalize or justify why the applicant’s
disability records should be forwarded to the Secretary of the Air Force
Personnel Board (SAFPB) for final adjudication at this time since her
medical condition has been found unstable and she will require additional
re-evaluation prior to finalization of her case. The most logical and
appropriate action at this time is to keep her on the TDRL until her next
medical re-evaluation in March 2003. This will allow her medical condition
a period of stabilization at which time she will benefit from another
medical evaluation along with the advantage of another full disability
process (i.e., IPEB, FPEB, and SAFPC, if necessary). Based on the
timelines determined following her appearance before the FPEB, it appears
she was delinquent in meeting the established suspense date for providing
her rebuttal information.
The AFPC/DPPD evaluation is at Exhibit D.
_________________________________________________________________
APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS:
The applicant states, in essence that had she had a time card mentality or
been in the security forces career field where they are used to performing
12-hour shifts with limited resources, she would have earned a 20-year
retirement. However, the majority of her responsibilities were in protocol
which required her to work 60-hour weeks (up at 3:00 am and in bed by 1:00
am). She gave everything she had to the Air Force and never complained.
Furthermore, she never completed an AF Form 90, Assignment Selection
Preference, as all of her assignments were received via the telephone. She
never had a regular job in the Air Force. Her condition is such that she
does not know from day to day how she will feel.
In further support of her appeal, the applicant submits an audio submission
and copies of her phone bills.
Applicant’s complete response, with attachments, is at Exhibit F.
_________________________________________________________________
THE BOARD CONCLUDES THAT:
1. The applicant has exhausted all remedies provided by existing law or
regulations.
2. The application was timely filed.
3. Sufficient relevant evidence has been presented to demonstrate the
existence of an error or injustice to warrant correcting the applicant’s
records to reflect that she timely filed an appeal of the FPEB’s findings
and recommendations and her appeal was forwarded to the Air Force Personnel
Board (AFPB) for consideration. In this respect, we note that the
applicant did not agree with the recommendation of an FPEB to place her on
the TDRL, with a 60% disability rating, and indicated her desire to submit
a rebuttal. However, due to the delay in receiving her lawyer’s approval
of her response and given the current mail restrictions due to the anthrax
threats, her appeal package arrived late and was not considered. The BCMR
Medical Consultant states that there is no question the applicant suffers
from several debilitating illnesses, and it is conceivable that her failure
to submit her appeal to the FPEB in their allotted time frame could have
been contributed by her physical condition. As such, the BCMR Medical
Consultant recommends further consideration by the AFPB to determined
whether she continues on the TDRL at her present level or at some other
disability level. We agree. While the applicant requests that the
percentage of her disability be upgraded to 100%, in view of the comments
of the BCMR Medical Consultant, we recommend her response to the FPEB be
forwarded to the Air Force Personnel Board for consideration and the
results be forwarded to the Board prior to rendering a final decision on
her request.
4. The applicant's case is adequately documented and it has not been shown
that a personal appearance with or without counsel will materially add to
our understanding of the issue(s) involved. Therefore, the request for a
hearing is not favorably considered.
_________________________________________________________________
THE BOARD RECOMMENDS THAT:
The pertinent military records of the Department of the Air Force relating
to APPLICANT be corrected to show that the attached appeal to the findings
and recommendation of the Formal Physical Evaluation Board (FPEB) be
forwarded to the Air Force Personnel Board for consideration in accordance
with AFI 36-3212 and the findings of the AFPB be forwarded to the Air Force
Board for Correction of Military Records at the earliest practicable date
so that all necessary and appropriate actions may be completed.
_________________________________________________________________
The following members of the Board considered Docket Number 01-03585 in
Executive Session on 16 April 2002, under the provisions of AFI 36-2603:
Mr. Thomas S. Markiewicz, Vice Chair
Mr. George Franklin, Member
Mrs. Carolyn J. Watkins, Member
All members voted to correct the records, as recommended. The following
documentary evidence was considered:
Exhibit A. DD Form 149, dated 11 Dec 01, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, BCMR Medical Consultant, dated 16 Jan 02.
Exhibit D. Letter, AFPC/DPPD, dated 28 Feb 02.
Exhibit E. Letter, SAF/MRBR, dated 1 Mar 02.
Exhibit F. Applicant’s Response, undated, w/atchs.
THOMAS S. MARKIEWICZ
Vice Chair
AFBCMR 01-03585
MEMORANDUM FOR THE CHIEF OF STAFF
Having received and considered the recommendation of the Air Force
Board for Correction of Military Records and under the authority of Section
1552, Title 10, United States Code (70A Stat 116), it is directed that:
The pertinent military records of the Department of the Air Force
relating to APPLICANT, be corrected to show that the attached appeal to the
findings and recommendation of the Formal Physical Evaluation Board (FPEB)
be forwarded to the Air Force Personnel Board for consideration in
accordance with AFI 36-3212 and the findings of the AFPB be forwarded to
the Air Force Board for Correction of Military Records at the earliest
practicable date so that all necessary and appropriate actions may be
completed.
JOE G. LINEBERGER
Director
Air Force Review Boards Agency
Attachment
Audio Rebuttal Submission
AF | BCMR | CY2003 | BC-2001-03585A
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