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AF | BCMR | CY2004 | BC-2003-01666
Original file (BC-2003-01666.doc) Auto-classification: Denied

                            RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER: BC-2003-01666
            INDEX NUMBER: 100.00

            COUNSEL:  NONE

            HEARING DESIRED:  NO


_________________________________________________________________

APPLICANT REQUESTS THAT:

Her disability discharge be changed to a disability retirement.

_________________________________________________________________

THE APPLICANT CONTENDS THAT:

Since the Department of Veterans Affairs (DVA) has awarded  her  a  combined
compensable disability  rating  of  70%,  she  should  have  been  medically
retired, rather than discharged with severance pay.

At the time she was considered by the Medical Evaluation  Board  (MEB),  her
medical records consisted of three  volumes  covering  all  of  her  medical
treatment during her eight years of service.

The Department of Veterans Affairs (DVA) originally awarded her  a  combined
disability rating of 30%, effective the day after her  discharge.   The  DVA
increased her disability rating to 40%, effective  18  September  2000,  and
increased it to 70% on 20 November 2000.

In support of the appeal,  applicant  submits  her  personal  statement  and
copies of the DVA rating decisions.

Applicant’s complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant entered active duty in the Air Force on 6 February  1991.   In
1999, she was referred to an MEB that determined she was  incapacitated  for
further military service because of chronic low  back  pain,  endometriosis,
ovarian cyst, and right hydronephrosis  felt  associated  with  the  ovarian
cyst.  It was recommended that  she  appear  before  a  Physical  Evaluation
Board (PEB).  On 18 August 1999, an Informal PEB (IPEB) determined  she  was
unfit and that her disability might be permanent.  She  was  diagnosed  with
chronic  low  back  syndrome  mechanical.    The   IPEB   also   found   her
endometriosis  and  temporomandibular  joint  dysfunction  pain   could   be
unfitting but were not currently compensable  or  ratable.   The  disability
was rated at 10%.  She concurred with  the  IPEB  findings  and  waived  her
right to a Formal PEB.  On 31 August 1999, the Secretary of  the  Air  Force
directed  she  be  separated  with  disability  severance  pay.    She   was
subsequently discharged on 8 November 1999 under the authority  of  AFI  36-
3212 (Disability, Severance Pay) after completing 8 years, 9 months,  and  3
days of active service.

On 1 December 1999, the DVA awarded her  a  combined  disability  rating  of
30%, for hydronephrosis, back strain, endometriosis, and sinusitis.   During
the period 1 June  through  31  August  2000,  her  rating  was  temporarily
increased to 100% for convalescence from surgery to remove her right  ovary.
 During the month of September 2002, her rating  was  temporarily  increased
to 100%  for  convalescence  from  laparoscopic  surgery  for  her  service-
connected hysterectomy and bilateral salpingo-oophorectomy, with history  of
endometriosis.  The DVA increased her disability rating to 70% on 1  October
2002.

_________________________________________________________________

AIR FORCE EVALUATION:

The BCMR  Medical  Consultant  recommends  the  application  be  denied  and
states, in part, that the IPEB noted that although none of  the  applicant’s
individual conditions were unfitting,  together  they  interfered  with  her
ability to serve.

The BCMR Medical Consultant also states the reason she could be found  unfit
for duty by the Air Force  at  a  certain  disability  level  and  later  be
granted  a  higher  service-connected  disability  by  the   DVA   lies   in
understanding the differences between Title 10, U.S.C. and Title 38,  U.S.C.
  Under  Title  10,  U.S.C.,  the  Service  Secretaries  are  charged   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  member  is
unfit,  the  disability  rating  percentage  is  based  upon  the   member’s
condition at the time of permanent disposition.  Title 38,  U.S.C.,  governs
the DVA compensation system and allows for awarding of compensation  ratings
for conditions that are not unfitting for military service.

The BCMR Medical Consultant’s evaluation is at Exhibit C.
_________________________________________________________________




APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

A complete copy of the Air Force evaluation was forwarded to  the  applicant
on 19 December 2003 for review and response within 30 days.  However, as  of
this date, this office has received no response.
_________________________________________________________________

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.  After thoroughly reviewing  the  evidence
of record and noting the applicant’s contentions, we are not persuaded  that
she should be permanently retired by  reason  of  physical  disability.   We
have reviewed her DVA rating decisions and find  no  evidence  she  was  not
properly rated at the time of  her  separation  from  the  Air  Force.   She
concurred with the IPEB findings and recommendation that she  be  discharged
with severance pay, with a 10% rating, and waived  her  right  to  a  Formal
PEB.  On 31 August 1999, the Secretary of the Air Force  directed  that  she
be separated with disability severance pay.  It  appears  she  believes  the
DVA's decision to award  her  an  overall  combined  compensable  disability
rating of 70% substantiates that  her  conditions  should  have  been  rated
higher by the Air Force.  However, the DVA  has  rated  her  for  conditions
that were not unfitting for continued military service,  to  include  a  50%
rating for the removal of her uterus, both  tubes,  and  ovaries  after  her
discharge.  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 based on the degree of severity at the time  of  separation.   In
the applicant's case, the Air Force determined that  a  rating  of  10%  was
appropriate.  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  BC-2003-01666
in Executive Session on 21 January 2004, under the  provisions  of  AFI  36-
2603:

                       Ms. Brenda L. Romine, Panel Chair
                       Mr. James A. Wolffe, Member
                       Ms. Rita J. Maldonado, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 7 May 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, BCMR Medical Consultant, dated 8 Dec 03.
    Exhibit D.  Letter, SAF/MRBR, dated 19 Dec 03.



                                   BRENDA L. ROMINE
                                   Panel Chair

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