THIRD ADDENDUM
RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2007-03725
		COUNSEL:  XXXXXXXX
XXXXXXX	HEARING DESIRED:  YES

________________________________________________________________

APPLICANT REQUESTS THAT:

1.  He be reimbursed for his first move after his retirement 
date.

2.  His medical and dental expenses, including health insurance 
premiums, be reimbursed.

________________________________________________________________

STATEMENT OF FACTS:

The applicant submitted a similar request dated 9 Nov 07.  On 
15 Apr 10, the Board recommended that his records be corrected 
to show that:

	a.  On 30 Jun 06, he was found unfit to perform the duties 
of his office, rank, grade, or rating by reason of physical 
disability, incurred while he was entitled to receive basic pay; 
that the diagnoses in his case were Cervical Spine Pain, VASRD 
Code 5242, rated at 10 percent; Lumbar Spine Pain, VASRD Code 
5243, rated at 10 percent; and Ischial Bursitis, VASRD Code 
5019, rated at 10 percent; that the total combined 
comprehensible percentage was 30 percent; that the degree of 
impairment was permanent; that the disability was not due to 
intentional misconduct or willful neglect; that the disability 
was not incurred during a period of unauthorized absence; and 
that the disability was not received in the line of duty as a 
direct result of armed conflict or caused by an instrumentality 
of war.

	b.  On 1 Jul 06, he declined Survivor Benefit Plan (SBP) 
coverage.

	c.  He was released from active duty on 1 Jul 06 and was 
permanently retired by reason of physical disability, with a 
30 percent compensable disability rating, effective 2 Jul 06.

The Director, Air Force Review Boards Agency, agreed with the 
recommendation of the Board majority; however, he directed the 
applicant be granted a 60 percent compensable disability rating, 
rather than 30 percent, effective 2 Jul 06.

The applicant also requested reimbursement of medical expenses; 
however, this request was denied because the AFBCMR was 
empowered only to correct military records.  Determining the 
benefits and entitlements that are a consequence of such 
corrections is the responsibility of the offices of primary 
responsibility (in this case, TRICARE and the Defense Finance 
and Accounting Service (DFAS)) (Exhibit Z).

On 25 Feb 11, the applicant requested the Board reconsider its 
denial of his request for reimbursement of his medical/dental 
bills and health insurance premiums.  In addition, he requested:

	1)  He be enrolled in TRICARE coverage effective 2 Jul 06.

	2)  His medical retirement pay be tax exempt based on his 
combat-related injuries.

	3)  He be reimbursed for his first move after his 
retirement date .

On 5 Mar 12, the BCMR Medical Advisor recommended denial of the 
applicant’s request to designate his medical conditions as 
combat-related and/or caused by an instrumentality of war.

In a 13-page response, dated 2 Apr 12, the applicant disagreed 
with the BCMR Medical Advisor’s findings and states his record 
amply supports his disability as combat-related.

On 30 Apr 12, the Board reconsidered and denied the applicant’s 
request.  The Addendum to the ROP with the Board’s full 
rationale for its decision is at Exhibit AA.

On 21 Jun 12, the applicant again applied to the Board for 
reconsideration.  In this application he alleged that his 2 Apr 
12 letter with attachments was not listed among the evidence the 
Board considered on 30 Apr 12.  On 3 Dec 12, the Board 
reconsidered the applicant’s request and noted that while the 
documents were considered by the previous panel, they were 
inadvertently omitted from the list of Exhibits on the Addendum 
to the ROP dated 30 Apr 12.  Additionally, the Board denied his 
request that his injuries be determined to be combat-related and 
his request for reimbursement of his medical and dental 
expenses.  The Board did not find the applicant’s evidence and 
argument persuasive on the point of establishing his disability 
as combat-related.  On his request for reimbursement of his 
medical expenses, the Board again noted for the applicant that 
the Board’s previous grant making him a disability retiree did 
qualify him for medical benefits, but he would have to take 
steps of his own to collect on his entitlement.  (See Second 
Addendum at Exhibit BB, with attachments).

By letter, dated 23 Jan 13, the applicant again requested 
reconsideration, contending this time that while the Board had 
directed that he be reimbursed for his first move, he had not 
been paid.  With respect to reimbursement of his medical and 
dental bills, and health insurance premiums, he states that the 
Board’s first addendum to the Record of Proceedings contends 
that he failed to exhaust some remedy in connection with this 
portion of his application.  However, the second addendum to the 
Record of Proceedings made no mention of any failure to exhaust 
any remedy and he is unsure of why the Board abandoned that 
portion of its earlier rationale.  Further, he notes that the 
second addendum seems to suggest that relief was denied because 
he declined Medicare Part B coverage on 10 Dec 10 and 1 Jun 12, 
and that Part B enrollment is required to be eligible for 
Medicare disability benefits and feels that neither is a basis 
to deny relief (Exhibit CC).  

On 25 Mar 13, the AFBCMR staff examined his request and 
determined that it did not meet the criteria for reconsideration 
by the Board (Exhibit DD, with attachments).

On 7 May 13, the United States Court of Federal Claims (CoFC) 
remanded the case to the Board and directed the Board address 
all of the issues raised in plaintiff’s request for 
reconsideration of the AFBCMR's Second Addendum to its Record of 
Proceedings (Exhibit EE).

________________________________________________________________

THE BOARD CONCLUDES THAT:

Based on our earlier decision and the remand from the CoFC, 
after again reconsidering the applicant's appeal, it remains our 
opinion that no further correction to the record is warranted.  
Regarding his 23 Jan 13 letter, the applicant and counsel noted 
some confusion as to whether the Board, based on the Second 
Addendum to the Record of Proceedings, was abandoning its 
earlier determination that the applicant had not exhausted his 
administrative remedies.  In the aforementioned addendum as in 
this proceeding, the Board has simply tried to provide further 
explanation as to why the applicant was only granted partial 
relief.  As noted in the letter from the Executive Director, the 
applicant was successful in having his record partially 
corrected, and while it is apparent that he is still seeking 
monetary reimbursement for his expenses, there is no further 
action for the Board.  The applicant’s military record has been 
corrected, and if he seeks payment for this correction, he has 
been advised to seek assistance from the Defense Finance and 
Accounting Service (DFAS), which has authority to issue funds as 
a result of the Board’s corrective action.  Further, we submit 
the following to clarify the Board’s decision and explain the 
nature of the Board’s authority:  

	1.  In an earlier finding, the Board determined there was 
insufficient evidence to warrant corrective action in regard to 
the applicant’s request that his injuries be rated as combat-
related.  However, the applicant has not provided any additional 
information to our satisfaction to specifically substantiate his 
entitlement to the requested relief or to overturn our earlier 
decision.  In view of the above, we find no basis upon which to 
recommend favorable consideration of this portion of the 
application.

      2.  Concerning the applicant’s request for reimbursement of 
expenses he incurred during his first move, as noted in the 
earlier addendums, and according to a 30 Jan 12 letter from the 
Retirements Programs and Policy Section, Directorate of 
Personnel Services, Air Force Personnel Center (AFPC/DPSOR), 
that office administratively corrected his record to reflect 
that he was authorized a Home of Selection move on his amended 
retirement orders.  Since there is no other correction to the 
record required, we advise the applicant to contact the Air 
Force office of primary responsibility (the Air Force District 
of Washington Joint Personal Property Agency) in regards to 
household goods shipment or DFAS for reimbursement of travel 
expenses.  They should be able to assist the applicant with 
further resolution of this portion of his application.

	3.  Regarding the applicant’s request for reimbursement of 
his medical and dental expenses, based on the evidence of record 
and that provided through counsel, in Jun 10, the applicant’s 
record was corrected to reflect that he was disability retired, 
effective 2 Jul 06, with a disability rating of 60 percent.  The 
applicant now requests that he be reimbursed for his medical 
claims.  In an earlier rationale, the Board explained for the 
applicant the process of filing his claims through TRICARE; this 
explanation was not a basis for denial of his request, but 
rather an attempt to assist the applicant understand his next 
steps in obtaining the relief the Board had already granted him.  
TRICARE is the Department of Defense (DoD) contractor 
established to provide medical coverage for all retired military 
members.  The applicant should continue working with TRICARE to 
seek reimbursement of his medical expenses.  Further, the Board 
cannot enter an order to direct TRICARE (or DFAS for that 
matter) to pay the applicant a specific amount.  The Board is a 
creature of statute.  Under Title 10, Section 1552, the Board is 
empowered only to correct military records for the removal of 
error or injustice.  The Board has no authority to issue orders 
to enforce its own corrections.  On the other hand, Section 
1552(a)(4) of Title 10 states, “[e]xcept when procured by fraud, 
a correction under this section is final and conclusive on all 
officers of the United States.”  So, to the extent the Board has 
already granted relief to the applicant, other federal agencies 
have a duty to provide that relief.  While counsel notes his 
belief as to what determines “full and fitting relief” or 
“thorough and fitting relief,” based on his submission, TRICARE 
and DFAS are the only agencies that can properly calculate and 
execute any amounts that may be owed pursuant to the Board’s 
directive.  Regarding the applicant’s comments about being 
treated differently from others in a similar situation, the 
Board notes that all applicants receive relief from the Board in 
the form of a correction to their military records.  In view of 
the above, we find no basis upon which to take further action in 
the applicant’s case. 

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 DETERMINES THAT:

The applicant be notified that the evidence presented did not 
demonstrate the existence of material error or injustice for 
which the Board is able to grant relief beyond that already 
given; 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 AFBCMR Docket 
Number BC-2007-03725in Executive Session on 2 Jul 13, under the 
provisions of AFI 36-2603:


The following documentary evidence was considered:

     Exhibit Z.   Record of Proceedings, dated 10 Jun 10, w/atchs.
     Exhibit AA.  Addendum to Record of Proceedings, dated 21 May 12.
     Exhibit BB.  Second Addendum to Record of Proceedings, 
                  dated 28 Dec 12, w/atchs.
     Exhibit CC.  Letter, Applicant, dated 23 Jan 13, w/atchs.
     Exhibit DD.  Letter, AFBCMR, dated 25 Mar 13, w/atch.
     Exhibit EE.  Remand from United States Court of Federal Claims, 
                  dated 7 May 13, w/atch.




                                   Panel Chair

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