RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2010-04590 

 

 COUNSEL: 

 

 HEARING DESIRED: NO 

 

_________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

The 20 percent disability rating he received for his diabetes be 
increased to 40 percent and he be medically retired with a 40 
percent disability rating. 

 

_________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

Due to him having to use insulin, following a restricted diet and 
regulating his activities; he meets the criteria for receiving a 
higher disability rating. 

 

The Formal Physical Evaluation Board (FPEB) failed to recognize 
the true nature of his disease process and limitations, and did 
not treat him the same as others similarly situated. 

 

In support of his request, the applicant provides documents 
extracted from his military personnel and medical records, a copy 
of Camacho v. Nicholson, and affidavits of support. 

 

The applicant's complete submission, with attachments, is at 
Exhibit A. 

 

_________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

The applicant is a former C-17 pilot who underwent a Medical 
Evaluation Board (MEB) on 27 Dec 05 for the diagnosis of Type I 
Diabetes Mellitus. 

 

On 27 Oct 05, the Informal Physical Evaluation Board (IPEB) found 
the applicant unfit for further military service and recommended 
his discharge with severance pay with a 20 percent disability 
rating. The applicant disagreed with the findings of the IPEB on 
3 Nov 05 and appealed to the Formal Physical Evaluation Board 
(FPEB) for permanent retirement with a combined disability rating 
of 60 percent. The FPEB found the applicant’s diabetes was 
unstable and recommended placement on the Temporary Disability 
Retired List (TDRL) with a 40 percent disability rating. The 
applicant disagreed with the findings of the FPEB and appealed to 


the Secretary of the Air Force Personnel Council (SAFPC). On 
20 Jun 06, SAFPC concurred with the findings of the FPEB and 
directed the applicant’s name be placed the TDRL with a 40 
percent disability rating. On 26 Jul 06, he was relieved from 
active duty and his name was placed on the TDRL on 27 Jul 06. He 
was credited with 4 years, 2 months, and 21 days of total active 
service. 

 

On 12 Aug 08, the applicant underwent a TDRL reevaluation; the 
IPEB again found him unfit, but determined his diabetes had 
stabilized and recommended the applicant be removed from the TDRL 
and discharged with severance pay with a 20 percent disability 
rating. The applicant appealed to the FPEB for retention or 
extension on the TDRL; and on 11 Dec 08, the FPEB concurred with 
the findings of the IPEB. The applicant then appealed to SAFPC. 
On 15 Apr 09, SAFPC concurred with the findings and 
recommendation of the IPEB and FPEB and removed the applicant 
from the TDRL and discharged him with severance pay with a 
20 percent disability rating. 

 

On 24 May 09, the applicant was removed from the TDRL and 
discharged with entitlement to severance pay. 

 

_________________________________________________________________ 

 

AIR FORCE EVALUATION: 

 

AFPC/DPSD recommends denial. DPSD states the preponderance of 
evidence reflects no error or injustice occurred during the 
disability process. The applicant is basing his request for 
retirement at 40 percent on the instability of his diabetes and a 
requirement for restriction of duties. The USAF disability 
boards must rate disabilities based on the service member’s 
condition at the time of evaluation. Per the Department of 
Defense Instruction (DODI) 1332, Physical Disability Evaluation 
states “A disability shall be considered unstable when the 
preponderance of medical evidence establishes that accepted 
medical principles indicates the severity of the condition will 
change within the next five years so as to result in an increase 
or decrease of the disability rating percentage or a finding of 
fit.” Although, the applicant’s diabetes was not in control at 
the time of his 2008 reevaluation; his condition was sufficiently 
stable to say that the severity of the condition would not change 
to increase or decrease his rating during his remaining time on 
the TDRL. 

 

DPSD further states there was no evidence to show the applicant 
was required to restrict activities for the medical management of 
his diabetes at the time SAFPC recommended the 20 percent 
disability rating. Furthermore, SAFPC noted in their 15 Apr 09, 
memorandum that they found no evidence the applicant was advised 
to avoid all strenuous occupational and recreational activities. 

 


In addition the applicant noted the DES results of two other 
service members with similar circumstances. However, due to the 
myriad of factors that must be considered, each and every case is 
adjudicated based on its own merit. The comparison between the 
outcomes of other cases, even when the diagnoses are alike, 
cannot be the basis for determining whether a member received 
fair and equitable consideration. 

 

The complete AFPC/DPSD evaluation is at Exhibit C. 

 

_________________________________________________________________ 

 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

The applicant’s counsel disagrees with the Air Force evaluation. 
Counsel states the applicant is entitled to a 40 percent 
disability rating for his diabetes because his medical condition 
meets the three criteria listed by the Veterans Administration 
Schedule for Rating Disabilities (VASRD) and as set forth in 
Comacho v. Nicholson. 

 

The advisory opinion recommends denial based on the claim that at 
the time the applicant appeared for the post TDRL FPEB, the 
“snapshot” of his medical condition did not clearly describe 
regulation of activities. The advisory opinion discounted the 
affidavit from the applicant’s endocrinologist that clearly 
stated the applicant required insulin, restricted diet, and 
regulation of activities. 

 

At the time the applicant met his post TDRL FPEB, he was 
represented by counsel who believed the applicant’s condition was 
unstable and should be continued on the TDRL. The applicant’s 
endocrinologist was not asked to provide a letter to the FPEB 
specifically addressing the three factors supporting a 40 percent 
disability rating. The FEPB members did not ask any questions of 
the applicant. The FPEB quickly and silently wrapped up the 
hearing by denying the requested relief. The applicant should 
not be penalized for the approach of his attorney or the lack of 
questions by the FPEB. 

 

The applicant provided several affidavits from his fiancé, 
endocrinologist, and his nurse practitioner, which clearly 
support the applicant met the three criterion for a 40 percent 
disability rating. 

 

Additional affidavits from his endocrinologist, nurse 
practitioner, and finance are provided which should leave no 
doubt about the correct disability percentage the applicant 
should have received. 

 

Counsel’s complete response, with attachments, is at Exhibit E. 

 

_________________________________________________________________ 

ADDITIONAL AIR FORCE EVALUATION: 


 

The AFBCMR Medical Consultant recommends changing the record to 
reflect the applicant was retained on the TDRL, effective 
24 May 09, and removed from the TDRL and retired permanently with 
a 40 percent disability rating effective 27 Jul 11. The Medical 
Consultant states the applicant has provided sufficient evidence 
reflecting his diabetes was not stabilized or controlled at the 
time he was placed on the TDRL or removal from the TDRL. The 
evidence supports the applicant required regulation of physical 
activities; therefore, meeting the spirit of the qualifying 
criterion for the 40 percent disability rating. 

 

The complete AFBCMR Medical Consultant's evaluation is at 
Exhibit F. 

 

_________________________________________________________________ 

 

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: 

 

A copy of the additional Air Force evaluation was forwarded to 
the applicant on 16 Aug 11 for review and comment within 30 days. 
As of this date, no response has been received by this office 
(Exhibit G). 

 

_________________________________________________________________ 

 

THE BOARD CONCLUDES THAT: 

 

1. The applicant has exhausted all remedies provided by existing 
law or regulations. 

 

2. The application was timely filed. 

 

3. Sufficient relevant evidence has been presented to 
demonstrate the existence of an injustice warranting corrective 
action. Noting the differing opinions between the Air Force 
office of primary responsibility and the AFBCMR Medical 
Consultant regarding a higher disability rating and permanent 
disability retirement, we are inclined to agree with the AFBCMR 
Medical Consultant's recommendation in this particular instance. 
In this regard, the applicant’s endocrinologist provided a 
notarized affidavit stating the applicant’s diabetes is unstable 
and requires insulin, a restricted diet, and regulation of 
activities. Therefore his medical condition meets the three 
criteria listed by the Veterans Administration Schedule for 
Rating Disabilities (VASRD) for a 40 percent disability rating 
and permanent disability retirement. The AFBCMR Medical 
Consultant has thoroughly reviewed the evidence of record and 
provides an extensive evaluation in which he ultimately 
recommends retaining the applicant on the TDRL for the remainder 
of the statutory period, followed by permanent disability 
retirement with a 40 percent disability rating. In view of the 
foregoing, and in an effort to offset any possibility of an 


injustice, we believe his records should be corrected to the 
extent indicated below. 

 

_________________________________________________________________ 

 

THE BOARD RECOMMENDS THAT: 

 

The pertinent military records of the Department of the Air Force 
relating to the APPLICANT be corrected to show the applicant’s 
name was not removed from the Temporary Disability Retired List 
(TDRL) on 24 May 09, but remained on the TDRL until 27 Jul 11 
when he was permanently disability retired with a 40 percent 
disability rating. 

 

_________________________________________________________________ 

 

The following members of the Board considered AFBCMR Docket 
Number BC-2010-04590 in Executive Session on 27 Sep 11, under the 
provisions of AFI 36-2603: 

 

 , Panel Chair 

 , Member 

 , Member 

 

All members voted to correct the records as recommended. The 
following documentary evidence was considered: 

 

 Exhibit A. DD Form 149, dated 29 Nov 10, w/atchs. 

 Exhibit B. Applicant's Military Personnel Records. 

 Exhibit C. Letter, AFPC/DPSD, dated 5 Jan 10 [sic]. 

 Exhibit D. Letter, SAF/MRBR, dated 25 Mar 11. 

 Exhibit E. Letter, Applicant’s Counsel, dated 9 Apr 11. 

 Exhibit F. Letter, AFBCMR Medical Consultant, dated 15 Aug 
11. 

 Exhibit G. Letter, SAF/MRBR, dated 16 Aug 11. 

 

 

 

 

 Panel Chair