DOCKET NUMBER: BC-2003-00371-3
COUNSEL: NONE
HEARING DESIRED: NO
ADDENDUM TO
RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF:
_________________________________________________________________
APPLICANT REQUESTS THAT:
His original disability rating for sleep apnea be reinstated to
30 percent and that his retired status be restored.
_________________________________________________________________
STATEMENT OF FACTS:
On 25 Sep 03 and 19 Nov 08, the Board considered and denied
similar appeals, in which he requested his original disability
rating for sleep apnea be reinstated to 30 percent and that his
retired status be restored. He also asked to be medically
retired with a 100 percent disability rating effective 25 Aug 02.
For an accounting of the facts and circumstances surrounding the
applicant’s request, and the rationale of the earlier decisions
of the Board, see the Addendum to the Record of Proceedings, with
attachments, at Exhibit L.
By application, dated 12 Nov 10, the applicant requests
reconsideration of his request, contending he was contacted by
the BCMR Medical Consultant advising him to resubmit his
application based on a change in the law.
In support of the appeal, the applicant submits copies of e-mails
and a letter, dated 9 Nov 10.
The applicant’s complete submission, with attachments, is at
Exhibit M.
_________________________________________________________________
AIR FORCE EVALUATION:
The BCMR Medical Consultant recommends granting relief by
changing the record to reflect the applicant was permanently
retired with a combined disability rating of 60 percent, for
Obstructive Sleep Apnea and Degenerative Disc Disease, Cervical
Spine, effective the previously established date of his removal
from the Temporary Disability Retired List and separation.
The BCMR Medical Consultant states that while conducting a
quality review of cases based upon the changes in the law, he
noted a probable error and injustice in the previous decisions
rendered on the applicant’s case. Specifically, the National
Defense Authorization Act of 2008 determined Military Departments
will adhere to the Department of Veterans Affairs (DVA) Veterans
Administration Schedule of Rating Disabilities (VASRD), or
mutually (Department of Defense/DVA) agreed upon policies when
determining disability ratings.
The complete BCMR Medical Consultant’s evaluation is at
Exhibit N.
_________________________________________________________________
APPLICANT’S REVIEW OF AIR FORCE EVALUATION:
He concurs with the opinion and recommendation of the BCMR
Medical Consultant.
The applicant’s complete response is at Exhibit P.
_________________________________________________________________
THE BOARD CONCLUDES THAT:
Sufficient relevant evidence has been presented to demonstrate
the existence of error or injustice to warrant changing the
applicant’s discharge to a disability retirement. Having
carefully reviewed this application, we agree with the
recommendation of the BCMR Medical Consultant and adopt his
rationale as the basis of our decision the applicant has been the
victim of an error and injustice and should be retired by reason
of physical disability, with a 60 percent combined disability
rating. Accordingly, we recommend the applicant’s records be
corrected to the extent indicated below.
_________________________________________________________________
THE BOARD RECOMMENDS THAT:
The pertinent military records of the Department of the Air Force
relating to APPLICANT, be corrected to show that:
a. On 24 August 2002, he was found unfit to perform the
duties of his office, rank, grade or rating by reason of physical
disability, incurred while he was entitled to receive basic pay;
that the diagnoses in his case were Obstructive Sleep Apnea,
VASRD Code 6847, rated at 50 percent and Degenerative Disc
Disease, Cervical Spine, VASRD Code 5242, rated at 10 percent;
that the total combined compensable percentage was 60 percent;
that the degree of impairment was permanent; that the disability
was not due to intentional misconduct or willful neglect; that
the disability was not incurred during a period of unauthorized
absence; and that the disability was not received in the line of
duty as a direct result of armed conflict or caused by an
instrumentality of war.
2
, Panel Chair
, Member
, Member
b. He was not discharged by reason of a physical
disability with entitlement to severance pay on 25 August 2002,
but on that date his name was removed from the Temporary
Disability Retired List and he was permanently retired by reason
of a physical disability, with a 60 percent compensable
disability rating.
_________________________________________________________________
The following members of the Board considered Docket Number BC-
2003-00371 in Executive Session on 17 March 2011, under the
provisions of AFI 36-2603:
All members voted to correct the records, as recommended. The
following documentary evidence was considered:
Exhibit L. Addendum to Record of Proceedings, dated 15 Jan
09, w/atchs.
Exhibit M. Letter, Applicant, dated 12 Nov 10, w/atchs.
Exhibit N. Letter, BCMR Medical Consultant, dated 3 Feb 11.
Exhibit O. Letter, SAF/MRBR, dated 11 Feb 11.
Exhibit P. Letter, Applicant, dated 11 Feb 11.
Panel Chair
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