RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2006-03406
COUNSEL: NONE
HEARING DESIRED: NO
MANDATORY CASE COMPLETION DATE: 6 May 2008
_________________________________________________________________
APPLICANT REQUESTS THAT:
He be permanently retired by reason of physical disability, with all back
pay and allowances.
_________________________________________________________________
THE APPLICANT CONTENDS THAT:
His release, rather than permanent disability retirement, was an egregious
error since his condition was a direct result of his military service.
At the time of his discharge, he was told his disability made him unfit for
military service, but that it would not impact his opportunity for civilian
employment or his quality of life. However, this has not been the case and
the seizure disorder for which he was discharged remains uncontrolled with
medication. He has both gran and petit mal seizures on a frequent basis.
In 1993, the Department of Veterans Affairs (DVA) awarded him a compensable
disability rating of 100 percent. He is “housebound” and requires an
attendant to assist in his daily personal care.
Applicant’s complete submission, with attachments, is at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The applicant enlisted in the Regular Air Force and entered active duty on
28 March 1988.
A Medical Evaluation Board (MEB) convened on 20 February 1990, to determine
whether he should be continued on active duty due to the diagnosis of
conversion disorder, recurrent, with narcissistic and obsessive/compulsive
personality traits. The MEB referred him to an Informal Physical
Evaluation Board (IPEB).
On 7 June 1990, an IPEB convened and determined he was unfit and
recommended he be separated with severance pay, 10 percent. The applicant
agreed with the findings and recommendations of the IPEB.
On 1 August 1990, he was discharged under the provisions of AFR 35-4
(Disability - Entitled to Severance Pay). He completed a total of 2 years,
4 months, and 4 days of active duty service.
On 2 August 1990, the DVA awarded him a combined compensable disability
rating of 10 percent based on seizures. On 17 January 1992, the DVA
increased his rating to 60 percent. On 26 September 2005, the DVA
increased his rating to 100 percent because he continued to average at
least one major seizure per month over the last year.
_________________________________________________________________
AIR FORCE EVALUATIONS:
The BCMR Medical Consultant is of the opinion that no change in the records
is warranted, since a 10 percent rating was appropriate at the time of the
applicant’s separation. In this respect, he notes that according to the
Veterans Administration Schedule for Rating Disabilities (VASRD), for major
and minor epileptic seizures a 100 percent rating is recommended if the
individual averages at least one major seizure per month over the last
year; individuals with a confirmed diagnosis of epilepsy with a history of
seizures receive a 10 percent rating. It is generally acknowledged that
the number of seizures before the patient has achieved optimal control
would be irrelevant to the rating. As such, in the applicant’s case, since
he had no seizures between his last hospitalization in March 1990 and his
discharge on 1 August 1990, he was correctly assigned a 10 percent rating.
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. 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.
The BCMR Medical Consultant evaluation is at Exhibit C.
_________________________________________________________________
APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS:
A complete copy of the BCMR Medical Consultant’s opinion was forwarded to
the applicant on 16 August 2007, for review and comment within 30 days.
However, as of this date, no response has been received by this office.
_________________________________________________________________
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 a thorough review of the evidence
of record and applicant’s submission, we are not persuaded that the
applicant’s disability rating should be changed. We took notice of the
applicant's complete submission in judging the merits of the case; however,
we agree with the opinions and recommendation of the BCMR Medical
Consultant and adopt his 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 BC-2006-03406
in Executive Session on 18 September 2007, under the provisions of AFI 36-
2603:
Mr. Thomas S. Markiewicz, Chair
Mr. Patrick C. Daugherty, Member
Mr. Joseph D. Yount, Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 27 Oct 06, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, BCMR Medical Consultant, dated 9 Aug 07.
Exhibit D. Letter, SAF/MRBR, dated 16 Aug 07.
THOMAS S. MARKIEWICZ
Chair
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