RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  02-01087
            INDEX NUMBER:  108.00
      XXXXXXXXXXXXXX   COUNSEL:  None

      XXX-XX-XXXX      HEARING DESIRED:  No

__________________________________________________________________

APPLICANT REQUESTS THAT:

His Air Force disability rating of 60% be changed to 100%  to  agree
with the 100% rating he has been awarded by Department  of  Veterans
Affairs (DVA) and to allow him to withdraw from the Survivor Benefit
Plan (SBP).

__________________________________________________________________

APPLICANT CONTENDS THAT:

The reasons the applicant believes the records to  be  in  error  or
unjust and the evidence submitted in support of the  appeal  are  at
Exhibit A.

__________________________________________________________________

STATEMENT OF FACTS:

The relevant facts pertaining to this  application,  extracted  from
the applicant’s military records, are contained in  the  memorandums
prepared by the appropriate  offices  of  the  Air  Force  found  at
Exhibit C, D, and E.

__________________________________________________________________

AIR FORCE EVALUATION:

The BCMR Medical Consultant recommends  denial  of  the  applicant’s
request.

The applicant developed increasing problems  with  asthma  while  on
active  duty  that  ultimately  resulted  in  permanent   disability
retirement in 1966 with a disability rating of 60%.   The  applicant
believes this rating is incorrect because the VA, in 2000, evaluated
his disability at 100%.

The  differences  in  the  two  ratings  can  be  explained  by  the
differences between Title 10, U.S.C.,  which  is  the  statute  that
charges the Service Secretaries with maintaining  a  fit  and  vital
force, and Title 38, U.S.C., which is the statute that  governs  the
DVA compensation system.  When an  individual  is  found  unfit  for
military service, the Service Secretaries are  required  by  law  to
rate the condition based upon the degree of disability at  the  time
of permanent disposition.  No change in military disability  ratings
can occur  after  permanent  disposition  under  the  rules  of  the
military disability system, even though  the  condition  may  become
better or worse.  However, Title 38, U.S.C.  authorizes  the  VA  to
increase or decrease  the  VA  compensation  ratings  based  on  the
individual’s condition during anytime they are evaluated.

Evidence of record establishes beyond all reasonable doubt that  the
applicant was properly evaluated  and  rated  at  the  time  of  his
permanent disability retirement.

The complete evaluation is at Exhibit C.

AFPC/DPPD recommended denial of the applicant’s request.

It appears that the applicant’s  request  for  an  increase  in  his
disability  rating  is  primarily  supported  from  his  DVA  rating
decision.  It is essential that he understand the difference between
Titles 10 and 38 of the U.S.C.  Having completed  their  examination
of the files, they found no reason to reflect  an  increase  in  his
original  disability  rating.   It  was  also  determined  that  the
applicant was treated  fairly  throughout  the  military  disability
evaluation  process,  that  he  was  properly  rated  under  federal
disability guidelines, and that he was  afforded  a  full  and  fair
hearing as required under military disability laws and policy.

The complete evaluation is at Exhibit D.

AFPC/DPPTR addressed the issue of the  applicant’s  payment  of  SBP
premiums.   They  recommend  denial  of  the   applicant’s   request
regarding this issue.

Public Law (PL) 105-261 authorized the paid up provision for members
who have paid into both the SBP and the Retired Serviceman’s  Family
Protection  Plan  (RSFPP)  for  360  months  and  attained  age  70.
However, the effective date is not until 1 Oct 08.

PL 96-402, 9 Oct 80, permits members who have been rated 100 percent
disabled by the DVA for five continuous years immediately  following
retirement, or ten consecutive years  if  rated  100  percent  after
retirement, to withdraw from SBP.

PL 105-85 (18 Nov 97) authorized members, who were retired more than
two years as of 17 May 98, a one-year window during which they could
arbitrarily disenroll from the SBP.

Even though the paid-up provision was signed into law, it  will  not
become effective until 1 Oct 08.  Unless the applicant  maintains  a
100 percent VA rating for ten continuous years, he is ineligible  to
withdraw from the plan  under  PL  96-402.   The  applicant  had  an
opportunity to disenroll from the SBP under PL 105-85, but there  is
no evidence he submitted a request during the permitted time period.
The complete evaluation is at Exhibit E.

__________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant responded to the Air Force evaluations.  The applicant
indicated that he desired to request an extension of time  to  build
and document his case.  The applicant was advised by  letter  on  30
Sep 02 that an extension of time could not be granted;  however,  he
could request that his case be temporarily withdrawn.  The applicant
was advised to respond within 20 days if he desired to withdraw  his
case or it would be processed.  To date, a  response  has  not  been
received.

In his response to the Air Force evaluations, the applicant provided
a list of reasons of why the decision on his  disability  should  be
reconsidered.  He indicated that he has medical evidence and  doctor
reports that he was not properly evaluated in the Air Force for  his
subgastrectomy, vagotomy, hiatal hernia and depression.

The applicant’s complete response is at Exhibit G.

__________________________________________________________________

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 opinions and recommendations of  the  Air
Force offices of primary responsibility and adopt their 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 compelling basis  to  recommend
granting the relief sought in this application.

_________________________________________________________________

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 02-01087
in Executive Session on 23 January 2003, under the provisions of AFI
36-2603:

      Ms. Cathlynn Sparks, Panel Chair
      Mr. John E. B. Smith, Member
      Mr. Joseph A. Roj, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 21 Mar 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, BCMR Medical Consultant,
                dated 18 Jul 02.
    Exhibit D.  Memorandum, AFPC/DPPD, dated 7 Aug 02.
    Exhibit E.  Memorandum, AFPC/DPPTR, dated 21 Aug 02.
    Exhibit F.  Letter, SAF/MIBR, dated 23 Aug 02.
    Exhibit G.  Letter, Applicant, dated 18 Aug 02.




                                   CATHLYNN SPARKS
                                   Panel Chair