RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2011-04695
COUNSEL: NONE
HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS THAT:
His records be corrected to show he was permanently retired for
physical disability with a compensable disability rating of
30 percent rather than being discharged with severance pay (DWSP).
_________________________________________________________________
APPLICANT CONTENDS THAT:
The decision to remove him from the Temporary Disability Retired
list (TDRL) and discharge him with severance pay was unjust. As a
member of the TDRL, he was supposed to have been re-examined every
18 months but he never was. He was never informed that he had to
report for a re-examination of his seizure disorder and has never
been re-examined. Both the Department of Veterans Affairs (DVA)
and Social Security Administration (SSA) have rated his condition
at 80 percent and he is considered totally disabled. His
condition has not improved.
In support of his appeal, the applicant provides copies of a white
paper from the Air Force Disability System web page describing the
relationship between the disability system and the AFBCMR, a page
from the schedule of ratings neurological conditions which shows
the different ratings for seizures and associated ratings, an
information sheet on the TDRL, a diary of his seizure activity,
several pertinent pages of information from his service medical
record (SMR), and a copy of his 3 Mar 08 retiree account
statement.
The applicants complete submission, with attachments, is at
Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
On 30 May 07, the applicants case was reviewed by the Informal
Physical Evaluation Board (IPEB) which recommended his name be
placed on the TDRL with a disability rating of 40 percent. The
applicant concurred and was officially placed on the TDRL on 14
Aug 07.
On 23 Jan 09, the applicant was notified of his periodic physical
evaluation, scheduled to take place on 27 Feb 09. The applicant
submitted progress notes from his civilian neurology outpatient
clinic appointments called Can-do in lieu of having to attend
his appointment. The IPEB accepted his Can-do progress notes
and, on 28 May 09, reviewed the medical information therein and
recommended he be removed from the TDRL and DWSP with a 10 percent
disability rating.
On 3 Jun 09, the IPEBs findings, which included a statement that
his condition had improved and noted that his last seizure had
occurred in Nov 08, were mailed to the applicant with instructions
to make his election, sign and date the paperwork, and return
prior to 28 Jun 09. The applicant was notified that a non-
response would indicate his agreement with the findings and
recommendations of the IPEB and that his name would be removed
from the TDRL. Nothing was received from the applicant and his
name was removed from the TDRL and he was duly discharged with
entitlement to severance pay, effective 7 Sep 09.
_________________________________________________________________
AIR FORCE EVALUATION:
AFPC/DPSD recommends denial as a preponderance of evidence
reflects that no error or injustice occurred during the disability
process.
While the applicant contends he was not afforded an opportunity to
undergo a TDRL re-evaluation examination for the medical condition
for which he was retired, his records indicate that travel orders
were issued on 23 Jan 09 notifying him of his periodic physical
evaluation to be held on 27 Feb 09. These orders were mailed to
the applicant. The applicant submitted Can-do paperwork dated
27 Jan 09 from his neurology outpatient clinic which the IPEB
reviewed. The recommendation for discharge with severance pay
with fact sheets was mailed to the applicant at the same address;
however, no response was received, nor was the package returned as
being undeliverable.
DPSDs complete evaluation is at Exhibit C.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A copy of the Air Force evaluation was forwarded to the applicant
on 24 Jan 12 for review and comment within 30 days. As of this
date, no response has been received by this office.
_________________________________________________________________
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 Air Force office of primary responsibility and adopt its
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 the relief sought in this application.
_________________________________________________________________
THE BOARD DETERMINES THAT:
The applicant be notified the evidence presented did not
demonstrate the existence of material 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-2011-04695 in Executive Session on 24 May 12, under the
provisions of AFI 36-2603:
, Panel Chair
, Member
, Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 21 Nov 11, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, AFPC/DPSD, dated 21 Dec 11.
Exhibit D. Letter, SAF/MRBR, dated 24 Jan 12.
Panel Chair
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