RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2010-01540
INDEX CODE: 100.00
COUNSEL: NONE
HEARING DESIRED: NO
____________________________________________________________
APPLICANT REQUESTS THAT:
His diagnosis of Sleep Apnea with Constant Positive Airway
Pressure (CPAP) be reviewed and included in his record as an
unfitting condition.
____________________________________________________________
APPLICANT CONTENDS THAT:
His Sleep Apnea with CPAP was not included in the original
package that went before the Physical Evaluation Board
(PEB)/Medical Evaluation Board (MEB).
In support of his request, the applicant provides copies of
documents extracted from his civilian medical records.
The applicants complete submission, with attachments, is at
Exhibit A.
____________________________________________________________
STATEMENT OF FACTS:
On 13 Oct 94, the applicant contracted his initial
enlistment in the Regular Air Force. He was progressively
promoted to the grade of staff sergeant and was honorably
discharged on 4 Apr 01; and was commissioned in the Air
Force Reserves on 5 Apr 01.
While on active duty, the applicant was seen and treated for
a variety of medical conditions; however, he underwent an
MEB on 23 Sep 05 for bipolar disorder. The MEB referred his
case to the Informal Physical Evaluation Board (IPEB). On
12 Oct 05, the IPEB recommended discharge with entitlement
to severance pay and a 10 percent disability rating. The
applicant nonconcurred with the findings of the IPEB and
requested a hearing with counsel before the Formal Physical
Evaluation Board (FPEB). On 3 Nov 05, he waived his request
for an FPEB and accepted the findings of the IPEB.
He was honorably discharged on 1 Dec 05 with entitlement to
severance pay and a 10 percent disability rating. He was
credited with 11 years, 1 month and 19 days of active
service.
____________________________________________________________
AIR FORCE EVALUATION:
AFPC/DPPD recommends denial. DPPD notes the applicant
submitted documentation reflecting that he had a sleep study
done and was diagnosed with sleep apnea. He also provides a
copy of a memorandum from a lieutenant colonel stating that
the physical evaluation process would not be slowed to
include additional documentation. They further noted he
could have brought up the sleep apnea to the FPEB, but he
waived his rights to the FPEB. He also could have appealed
to the Secretary of the Air Force. He did not exercise his
options to appeal the decision of the IPEB.
DPPD also notes that the Department of Defense (DOD) and the
Department of Veterans Affairs (DVA) disability evaluation
systems operate under separate laws. It is the charge of
the DVA to pick up where the AF must leave off. Under Title
38, the DVA may rate any service-connected condition based
upon future employability or reevaluate based on changes in
the severity of a condition. This often results in
different ratings by the two agencies.
The complete APFC/DPPD evaluation is at Exhibit C.
____________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
The applicant does not recall waiving his option for an
FPEB, but believes if he did it was directly related to the
medications he was taking. He was also being influenced by
others in his life. He was never told he could fight the
decision on the ratings because his discharge was
inevitable. He did not bring up the sleep apnea because he
believed the military physician would object.
The applicants complete response, with attachments, is at
Exhibit D.
____________________________________________________________
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. The
applicant's complete submission, to include his rebuttal,
was thoroughly reviewed and his contentions were duly noted.
However, we do not find his assertions and the documentation
submitted in support of his appeal sufficiently persuasive
to override the rationale provided by AF office or primary
responsibility (OPR). The applicant has not provided any
evidence reflecting he was determined unfit due to his Sleep
Apnea. Therefore, in the absence of evidence to the
contrary, we agree with recommendation of the AF OPR and
adopt its rationale as the basis for our decision the
applicant has failed to sustain his burden proof of the
existence of either an error or an injustice. Accordingly,
we find no 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 an error or injustice; the
application was denied without a personal appearance; and
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-2010-01540 in Executive Session on 26 Oct 10,
under the provisions of AFI 36-2603:
, Panel Chair
, Member
, Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 26 Apr 10, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, AFPC/DPPD, dated 17 May 10.
Exhibit D. Letter, SAF/MRBR, dated 25 Jun 10.
Exhibit E. Letter, Applicant, dated 25 Jun 10, w/atchs.
Panel Chair
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