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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