RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2011-04450 

COUNSEL: NONE 

 HEARING DESIRED: YES 

 

_________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

1. His DD Form 214, Certificate of Release or Discharge from 
Active Duty, be corrected to reflect $121,600 severance pay 
rather than $142,329.36. (Administratively Corrected) 

 

2. His 20 percent disability rating received at the time of his 
separation, be changed to a 75 percent disability rating in 
accordance with the Congressional Order to review any service 
member’s generated disability rating of 20 percent or less who 
were separated as medically unfit since 11 September 2001. 

 

_________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

His Air Force appointed disability lawyer did not provide 
adequate representation and did not study his case to present a 
coherent presentation. His current Department of Veterans 
Affairs (DVA) disability rating is 90 percent. 

 

In support of his appeal, the applicant provides copies of a 
Request for Special Separation Pay Information memorandum, his 
DVA Rating Decision, and medical records. 

 

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

 

_________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

The applicant is a former member of the Air Force Reserve who 
served as a helicopter pilot in the grade of captain (O-3). 

 

On 19 May 2005, the applicant was evaluated by a Medical 
Evaluation Board (MEB) and based on the diagnosis of Myofascial 
Pain Syndrome, referred him to an Informal Physical Evaluation 
Board (IPEB). On 11 July 2005, the IPEB reviewed the case and 
recommended discharge with severance pay with a disability rating 
of 20 percent. On 28 July 2005, the applicant non-concurred with 
the findings and requested a formal hearing with counsel. The 
Formal Physical Evaluation Board (FPEB) hearing was scheduled for 
1 September 2005. His appointed attorney met with the applicant 
and wrote up an FPEB contention slip in lieu of filing for 
consideration at the hearing. The applicant wanted to change the 


Veteran’s Administration Schedule for Rating Disabilities (VASRD) 
code from Myofascial Pain Syndrome to Fibromyalgia, with a 40 
percent rating, and to add under Category I the following 
unfitting conditions for compensation and rating: 1) 
Tenosynovitis – VASRD 5024, with bilateral factor for 20 percent 
rating, and 2) Irritable Bowel Syndrome – VASRD 7319 for a 10 
percent disability rating; for a combined disability rating of 50 
percent and permanent retirement. Due to an administrative 
error, the applicant’s medical records did not arrive in time for 
the scheduled hearing; therefore the FPEB was cancelled. Once 
the medical records were received, the options were to reschedule 
a new hearing date or have his hearing held in absentia and he be 
represented by counsel. On 6 September 2005, the applicant 
elected to waive his request for a formal hearing and accept the 
recommended disposition of the IPEB. On 9 September 2005, the 
Secretary of the Air Force directed the applicant be separated 
from active service. 

 

On 22 November 2005, the applicant was honorably discharged with 
severance pay and a 20 percent disability rating. He served 
13 years, 10 months, and 22 days on active duty. 

 

The DVA awarded him 50 percent for muscle tension headaches, 
30 percent for Irritable Bowel/Colon Syndrome, and 20 percent for 
Carpal Tunnel Syndrome Left; for a 90 percent combined rating. 
As noted on his DD Form 149, the DVA has not rated him for Post 
Traumatic Stress Syndrome, Cervical Dystonia or Sciatica. 

 

The remaining relevant facts, extracted from the applicant 
military service records, are contained in the evaluations 
prepared by the Air force offices of primary responsibility at 
Exhibits C and D. 

 

_________________________________________________________________ 

 

AIR FORCE EVALUATION: 

 

AFPC/DPSD (USAF Physical Disability Division) recommends denial. 
DPSD states the preponderance of evidence reflects that no error 
or injustice occurred during the disability process or with the 
rating applied at the time of the applicant’s disability 
evaluation. 

 

DPSD indicates that service-connected medical conditions 
incurred, but not found unfitting while still on active duty, are 
not compensated under Title 10, United States Code (USC); 
however, under Title 38, USC, the DVA may compensate veterans for 
these conditions. The DVA is chartered to provide continual 
medical care for veterans once they leave active duty. Under 
Title 38, USC, the DVA may increase or decrease a member’s 
disability rating based on the seriousness of the medical 
condition throughout his or her life. 

 

The complete DPSD evaluation is at Exhibit C. 

 


AFPC/JA recommends denial. JA indicates they agree with the DPSD 
evaluation. JA states that generally, an applicant must file a 
request for relief within three years after the alleged error or 
injustice was discovered or, with due diligence, should have been 
discovered. The applicant waited almost six years to file his 
present appeal. He argues that he did not “discover” the error 
or injustice until 21 October 2008, when he was told he could 
challenge the disability decisions by a member of the Wounded 
Warrior Program. However, the applicant possessed all the 
information necessary to pursue his claim long before the statue 
of limitations expired, and he offers no meaningful explanation 
for why he waited almost six years to address these contentions 
to the AFBCMR. Ignorance of the process in the context of a 
failure to inquire has been routinely rejected by the courts, and 
flies in the face of the “reasonable man” doctrine and, if 
carried to its logical conclusion, would render the three year 
provision for filing under Title 10, USC, Section 1552(b) 
virtually meaningless. The applicant’s delay has permitted 
memories to fade and relevant records to be destroyed or lost, 
preventing the government from defending itself from his 
allegations. 

 

Aside from the timeliness issue, the applicant’s claim also fails 
on the merits. He would have us believe that he relied 
exclusively and extensively on his counsel’s advice to make his 
final decision to waive the FPEB hearing and accept the IPEB 
results, but that is not so. Contrary to his claim, the 
applicant in his request to the AFBCMR, specifically points out 
that he did not trust his counsel, and that he didn’t think his 
attorney would provide an adequate representation of his interest 
in his absence. Therefore, the logical conclusion is that the 
decision the applicant made at that time were driven by his own 
personal interest and not by the counsel’s incompetent and 
incorrect advice or heavy handedness, as he wants us to believe. 
The fact the applicant may now regret his decision does not 
constitute an error or injustice that would justify allowing him 
to revisit that decision six years after it was tendered. Even 
if the applicant’s counsel had somehow been mistaken or negligent 
in his advice, there would be no grounds for correction because 
the IPEB decision appropriately focused on those unfitting 
medical conditions that referred the applicant into the 
Disability Evaluation System (DES). Although the applicant may 
have been treated for other medical issues while on active duty, 
the MEB did not refer them to the IPEB because they were not 
unfitting conditions affecting the applicant’s ability to perform 
the duties of his “office, grade, rank, or rating.” As such, 
contrary to his contentions, no evidence has been provided that 
would lead them to believe that the IPEB’s decision was made 
without taking all of the appropriate factors into consideration. 

 

The complete JA evaluation is at Exhibit D. 

_________________________________________________________________ 

 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 


Copies of the Air Force evaluations were forwarded to the 
applicant on 29 February 2012 for review and comment within 
30 days (Exhibit E). As of this date, this office has received 
no 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 an error or an injustice in regard 
to the applicant’s request to increase his disability rating at 
the time of his separation from active duty. We note the Air 
Force office of primary responsibility has administratively 
corrected the applicant’s DD Form 214 to reflect the correct 
amount of severance pay he received; therefore, we will only 
address that portion of his request pertaining to his disability 
rating. After a thorough review of the record and the 
applicant's submission, we find no error or injustice in regard 
to his disability processing or the final rating applied. It 
appears the applicant believes that based on the decisions of the 
DVA to award him a combined compensable disability rating of 90 
percfent, the final determination by the Air Force is in error or 
unjust. This may be based on an apparent misunderstanding of the 
two separate determinations made under the provisions of two 
different statutory bases. In this respect, we note the military 
DES, operating under Title 10, is established to maintain a fit 
and vital force and can compensate for unfitting conditions which 
render a member unfit and unable to perform their military 
duties, and then only to the degree of severity at the time of 
separation and not based on future possibilities. No change in 
disability ratings can occur after permanent disposition, even 
though the condition may become better or worse. Although the 
Air Force is required to rate disabilities in accordance with the 
VASRD, the DVA operates under a totally separate system with a 
different statutory basis. The DVA, operating under Title 38, 
rates for any and all service-connected conditions, to the degree 
they interfere with future employability, without regard to 
whether it was unfitting for continued military service. The DVA 
is also empowered to reevaluate veterans periodically for the 
purpose of changing their disability awards if their level of 
impairment varies over time. Thus, the two systems represent a 
continuum of medical care and disability compensation that starts 
with entry on to active duty and extends for the life of the 
veteran. In view of this and since the recommendations and 
opinions of the Air Force offices of primary responsibility are 
supported by the evidence of record, we adopt their 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 basis to recommend granting 
relief beyond that already administratively corrected. 

 

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 AFBCMR Docket 
Number BC-2011-04450 in Executive Session on 28 June 2012, under 
the provisions of AFI 36-2603: 

 

 , Panel Chair 

 , Member 

 , Member 

 

The following documentary evidence was considered in connection 
with AFBCMR Docket Number BC-2011-04450: 

 

 Exhibit A. DD Form 149, dated 13 Jun 11, w/atchs. 

 Exhibit B. Applicant's Master Personnel Records. 

 Exhibit C. Letter, AFPC/DPSD, dated 19 Dec 11. 

 Exhibit D. Letter, AFPC/JA, dated 18 Jan 12. 

 Exhibit E. Letter, SAF/MRBR, dated 29 Feb 12. 

 

 

 

 

 

 Panel Chair