RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBER:  BC-2006-01040
                                             INDEX CODE:  108.02
      XXXXXXXXXXXXX                     COUNSEL:  NONE

                                             HEARING DESIRED:  YES


MANDATORY CASE COMPLETION DATE:  30 September 2007


________________________________________________________________

APPLICANT REQUESTS THAT:

His military  disability  rating  be  increased  to  coincide  with  ratings
adjudicated by the Department of Veterans Affairs (DVA).

________________________________________________________________

APPLICANT CONTENDS THAT:

He was initially separated with  a  50%  disability  rating  for  a  bipolar
condition.  The rating was subsequently reduced to 30%, and he believes  the
reduction was in error.

He was given poor advice by a lieutenant colonel who forcefully advised  him
not to appear before a Physical Evaluation Board (PEB) in 1985.  He was  not
taking his medication then, although he should  have  been  taking  it,  and
this was not helpful to his judgment.

The DVA rated his condition at 50% upon his initial claim in 1982,  and  has
never considered a reduction.  The DVA health care system has been his  only
mental health provider since leaving the Air Force, and he  transferred  his
care from the XXXXX VA Hospital to the XXXXX VA Hospital in 1986.   He  went
through a period where the doctors were not clear how to diagnose  him.   He
was finally re-prescribed lithium in 1987, and it  has  been  necessary  for
him to take this medication ever since.  He became increasingly  aware  that
his final Temporary Disability Retired List (TDRL) exam and lowering of  his
combined rating were harmful to him in 1987,  when  he  began  to  take  his
medication regularly.

His VA medical records from 1983 to  1988  document  difficulties  with  his
employer and in his family interaction.  These  records  are  evidence  that
his mental health condition was serious enough to be continuously  rated  at
50% as the DVA has felt appropriate to do, and the Air Force  was  incorrect
in making the 30% reduction.

He was unaware the AFBCMR  could  potentially  grant  him  relief  from  the
decision rendered at his final separation.

In support of his appeal, he has submitted copies of treatment records  from
the DVA health care system from 1983–1987.

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

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STATEMENT OF FACTS:

Applicant entered the active Air Force on 4  November  1965  and  served  in
various specialties, including avionic sensor  systems  technician,  optical
sensors technician,  munitions  systems  technician,  and  security  forces.
After 16 years, 9 months, and 20 days, he was released from active duty  and
placed on the TDRL on 23 August 1982.   After  nearly  three  years  on  the
TDRL, and two years of stable disease characterized as in remission  off  of
medications, he was  removed  from  the  TDRL  effective  9 June  1985,  and
permanently disability retired  with  a  combined  rating  of  40%  (Bipolar
Disorder in remission  with  definite  social  and  industrial  adaptability
impairment rated at 30%, and mechanical low back pain rated at 10%).

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AIR FORCE EVALUATION:

The AFBCMR Medical Advisor recommends denial.  The fact that  applicant  has
been granted certain service connected disability ratings from the DVA  does
not entitle him to Air Force  disability  compensation,  or  change  in  his
existing military disability ratings.  The  Military  Disability  Evaluation
System (DES), established to maintain a fit and vital fighting  force,  can,
by law under Title 10, only offer compensation for  those  service  incurred
in-line-of-duty diseases or injuries which specifically  rendered  a  member
unfit for continued active service or were  the  cause  for  termination  of
their career, and then only for the degree  of  impairment  present  at  the
time  of  separation  and  not  based  on  future  possibilities.   Once  an
individual has been declared unfit, the Service Secretaries are required  by
law to rate the condition based upon the degree of disability  at  the  time
of  permanent  disposition,  and  not  on  future  events.   No  change   in
disability ratings can occur after permanent disposition,  even  though  the
condition may become better or worse.

The DVA operates under a different set of laws (Title 38)  and  specifically
addresses  long  term  medical  care,  social   support,   and   educational
assistance.  The DVA is chartered to offer  compensation  and  care  to  all
eligible veterans for any  service  connected  disease  or  injury,  without
regard to whether it was unfitting for continued military service.  The  DVA
is also empowered to reevaluate veterans periodically  for  the  purpose  of
changing their disability awards if their level of  impairment  varies  over
time.  Thus, the two systems represent  a  continuum  of  medical  care  and
disability compensation that starts with entry on active duty and  continues
for the life of the veteran.  By law, payment of VA disability  compensation
and military disability pay is prohibited.

The military service disability systems, operating under Title 10,  and  the
DVA disability systems, operating under Title 38, are complementary  systems
not intended to be duplicative.   Operating  under  different  laws  with  a
different purpose, independent  decisions/determinations  made  by  the  DoD
under Title 10 and the DVA under Title 38 are not determinative  or  binding
on decisions made by the other.  The  mere  fact  that  the  DVA  may  grant
certain  service  connected  compensation   ratings   does   not   establish
eligibility for similar actions from the Air Force.

There is no evidence  to  support  a  higher  rating  at  the  time  of  his
permanent disability retirement from the Air Force.   The  preponderance  of
evidence of  his  service  medical  records  indicate  his  conditions  were
properly and fairly rated based on documented medical  evidence.   The  fact
the DVA did not lower his DVA service connected rating  when  his  condition
improved is not a basis for increasing his Air  Force  rating.   Action  and
disposition in this case are proper and reflect compliance  with  Air  Force
directives which implement the law.

The AFBCMR Medical Advisor evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant responded to the AFBCMR  Medical  Advisory  on  3  May  2007.   He
points out that the advisory made no mention of his statement  that  he  was
given poor advice by a lieutenant colonel, who forcefully  advised  him  not
to appear before the PEB in 1985, and believes that his presence at the  PEB
would very likely have resulted in an increased rating.  He was  not  taking
his medication at that  time,  and  there  is  no  doubt  his  judgment  was
impaired.

He understands the VA disability ratings are not  determinative  or  binding
on the Air Force.  However, he believes there is good  reason  for  the  two
ratings to be consistent inasmuch as  the  Air  Force  was  determining  his
fitness for continued military  service  and  the  VA  was  determining  his
fitness for civilian employment.  The  fact  that  he  was  not  taking  his
medication as recommended was indicative of  the  impairment  level  of  the
disease, and he had employment difficulties and was  earning  just  slightly
more than the minimum wage.

The  advisory  did  not  mention  the  VA  records  he  provided  with  this
application, and he believes these records reflect  that  his  judgment  was
impaired because he was not taking his medication as recommended.

He was  divorced  on  9-11-2007  (sic),  and  truly  believes  his  bi-polar
condition was a factor when deciding to finalize the end to the marriage.

Applicant’s complete response is at Exhibit D.

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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 opinion and recommendation of  the  Air  Force  office  of  primary
responsibility and adopt its rationale as the basis for our conclusion  that
the applicant has not been the victim of an error or  injustice.   There  is
no evidence to support  a  higher  rating  at  the  time  of  his  permanent
disability retirement from the Air Force, and the preponderance of  evidence
of his service medical records indicate his  conditions  were  properly  and
fairly rated based on documented medical evidence.  The  fact  the  DVA  did
not lower his DVA service connected rating when his  condition  improved  is
not a basis for increasing his Air Force  rating  as  the  military  service
disability system operates under Title 10  and  the  DVA  disability  system
operates under Title 38.  They are complementary systems not intended to  be
duplicative, and the fact that the DVA may grant certain  service  connected
compensation ratings does not  establish  eligibility  for  similar  actions
from the Air Force.  Therefore, in the absence of evidence to the  contrary,
we find no compelling basis to recommend granting the relief sought in  this
application.

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 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-2006-01040
in Executive Session on 13 June 2007, under the provisions of AFI 36-2603:

                       Mr. Michael V. Barbino, Panel Chair
                       Ms. Renee M. Collier, Member
                       Ms. Barbara R. Murray, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 30 Mar 06, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFBCMR Medical Advisor, dated 27 Mar 07.
    Exhibit D.  Letter, AFBCMR, dated 13 Apr 07.
    Exhibit E.  Letter, Applicant, dated 3 May 07.




                                   MICHAEL V. BARBINO
                                   Panel Chair