RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER: BC-2007-03201
            INDEX CODE:  110.02
            COUNSEL:  NONE
            HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

His discharge be changed to reflect a medical  retirement  with  50  percent
disability due to sleep apnea.
_________________________________________________________________

APPLICANT CONTENDS THAT:

When he met  the  Medical  Evaluation  Board  (MEB)  they  agreed  that  his
condition existed but claimed it did not affect his civilian life.

Since he has been discharged, he has had three jobs.  He was fired from  two
of the jobs for not being able to make it to work on time.

When he travels,  he  must  “lug”  around  his  continuous  positive  airway
pressure (CPAP) machine or suffer the next day.  He is unable to go  camping
or wakeup without headaches, and is tired all day.

The MEB was completely wrong in stating that his condition would not  affect
his civilian life.

When he was rated by the Department of Veteran’s Affairs  (DVA),  his  total
combined rating was 80 percent and this includes other injuries he  suffered
but were not considered by the MEB.

His Air Force appointed attorney told him there was no other option  as  the
medical board was the final authority.  Recently, he discovered  the  AFBCMR
has the ability to change the  result.   Had  he  known  about  this  avenue
earlier he would have submitted his request.

The applicant's complete submission is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant entered the Regular Air Force on 14 Oct 88.  He served  for  a
period of 12 years, 1 month, and 7 days.

On 12 Dec 00, the applicant underwent a MEB due to Obstructive  Sleep  Apnea
(OSA).  The applicant’s case was subsequently referred through the  Military
Disability Evaluation System for determination of his fitness to serve.

Both the Informal Physical  Evaluation  Board  (IPEB)  and  Formal  Physical
Evaluation Board (FPEB) found the applicant unfit and recommended  discharge
with severance pay with a zero (0) percent disability rating.

The applicant’s case was subsequently referred to the Secretary of  the  Air
Force Personnel Council (SAFPC) for an additional review,  but  resulted  in
the same “zero percent” ruling by the previous boards.

The applicant was discharged on 20 Nov 00 with an honorable discharge.

_________________________________________________________________

BCMR MEDICAL CONSULTANT’S EVALUATION:

The BCMR Medical Consultant recommends denial.   The  applicant’s  commander
expressed the opinion that the applicant’s OSA had impaired his  ability  to
perform normal day-to-day duties.  However, this assessment was  incongruent
with the applicant’s consistently superior performance reports  dating  from
the early 90’s until  his  date  of  discharge  in  00.   Additionally,  the
applicant’s inability to deploy  and  the  requirement  to  utilize  a  CPAP
machine were not measures for the severity of his  medical  condition  under
the Department of Defense (DoD) disability rating guidance for  OSA  at  the
time of the applicant’s discharge.

In explaining the zero percent disability rating awarded to  the  applicant,
the BCMR Medical Consultant directs the Board’s attention to the  disability
rating  criteria  for  OSA,  as  outlined  in   DoD   Instruction   1332.39,
Application   of   the   Veterans   Administration   Schedule   for   Rating
Disabilities.  Specifically, the  distinct  variance  from  rating  criteria
outlined by the DVA, ratings for OSA were  based  upon  the  impact  of  the
applicant’s medical condition had upon his level of “industrial  impairment”
relative to civilian  earning  capacity  at  the  time;  and  utilizing  the
following disability rating scheme of  mild  (zero  percent),  definite  (30
percent), considerable (50 percent), and total (100  percent).   Thus,  when
collectively considering the aforementioned disability rating  criteria  and
the objective evidence of the applicant’s  long-standing  demonstrated  duty
performance, all Boards agreed that his level of impairment  was  consistent
with a mild determination of severity.

The BCMR Medical Consultant acknowledges the applicant’s original letter  to
SAFPC, citing the three jobs that he reportedly lost allegedly  due  to  his
medical disorder.  However, using the “snap-shot in time” assessment of  the
applicant’s medical condition, the BCMR Medical Consultant also  opines  his
industrial impairment was appropriately considered mild in severity.

The Military Disability Evaluation System is chartered  to  maintain  a  fit
and vital force and, although all service connected medical  conditions  are
considered in the fitness determination  by  a  Physical  Evaluation  Board,
compensation is awarded  only  to  those  conditions  which  resulted  in  a
shortened military career; and only to the degree  of  severity  present  at
the  time  of  final  disposition.  In  the  case  under  review,  only  the
applicant’s OSA presented an impediment to the performance of  his  military
duties.  On the other hand, operating under a different set of  laws  (Title
38, U.S.C.), the DVA is authorized to offer compensation  for  all  service-
connected medical  conditions,  such  as  the  applicant’s  back  condition,
without  regard  to  the  demonstrated  impact  upon  the  service  member’s
retainability.   Additionally,  the  DVA  is   empowered   to   periodically
reevaluate veterans for the  purpose  of  adjusting  the  disability  rating
award, should the applicant’s level of impairment vary over time.

Although the National Defense Authorization  Act  of  2008  now  limits  the
utilization of disability rating guidelines other than those provided  under
the Veterans Administration Schedule  for  Rating  Disabilities,  e.g.,  DoD
Instruction 1332.39, there is no retroactive application of this law.

The preponderance of evidence of the  record  shows  that  the  actions  and
disposition of this case were proper  and  equitable  reflecting  compliance
with existing Air Force directives that implement the  law.   Therefore,  no
change in the applicant’s disability rating is recommended.

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

_________________________________________________________________

APPLICANT'S REVIEW OF BCMR MEDICAL CONSULTANT’S EVALUATION:

A copy of the BCMR Medical Consultant’s  evaluation  was  forwarded  to  the
applicant on 27 Feb 08 for review and comment within 30  days  (Exhibit  D).
As of this date, this office has not received a 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.   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  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.

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 issues 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-2007-03201
in Executive Session on 7 May 08, under the provisions of AFI 36-2603:

      Mr. Thomas S. Markiewicz, Chair
      Ms. Lea Gallogly, Member
      Ms. Glenda H. Scheiner, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 25 Sep 07.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, BCMR Medical Consultant,
                dated 27 Feb 08.
    Exhibit D.  Letter, SAF/MRBR, dated 28 Feb 08.



                                   THOMAS S. MARKIEWICZ
                                   Chair