RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:	DOCKET NUMBER:  BC-2012-05273
		COUNSEL:  NONE
		HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

His 20 percent disability rating for seizure disorder be changed 
to 100 percent.

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APPLICANT CONTENDS THAT:

The Department of Veteran’s Affairs rated him at 100 percent 
permanently disabled.

In support of the applicant’s appeal, he provides a copy of his 
NGB Form 22, Report of Separation and Record of Service, DD Form 
214, Certificate of Release or Discharge from Active Duty, VA 
Form 21-22, Appointment of Veterans Service Organization as 
Claimant’s Representative, and a Social Security Administration 
Notice of Decision.

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

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STATEMENT OF FACTS:

The applicant with 27 years and 5 days of total service for pay 
was honorably discharged on 21 May 2011 from the Air National 
Guard of Texas in the grade of technical sergeant.

In December 2009, a Medical Evaluation Board (MEB) convened and 
referred the applicant's case to an Informal Physical Evaluation 
Board (IPEB) with a diagnosis of lumbago due to degenerative 
disc disease.  The IPEB found him unfit for further military 
service and recommended discharge with severance pay with a 
disability rating of 20 percent for a diagnosis of lumbago due 
to degenerative disc disease.  The applicant did not agree with 
the findings and recommended disposition of the IPEB and 
requested a formal hearing.





The Formal Physical Evaluation Board (FPEB) reviewed the case 
and recommend discharge with severance pay with a disability 
rating of 20 percent for lumbago due to degenerative disc 
disease associated with radiculopathy.  The FPEB listed the 
applicant’s obstructive sleep apnea with prescribed continuous 
positive airway pressure (CPAP) machine under Category II as a 
condition that can be unfitting but was not currently 
compensable or ratable at the time of the board review.  

On 26 March 2010, the applicant requested his case be reviewed 
by the Secretary of the Air Force Personnel Council (SAFPC).

On 14 January 2011, SAFPC directed that the applicant be 
discharged and receive severance pay with a disability rating of 
20 percent.  SAFPC noted “The member’s low back condition is 
unfitting for continued military service.  The member’s sleep 
apnea, however, is not unfitting for military service, as there 
is no evidence in the record where any duty or mobility 
restrictions were based on sleep apnea.  The member’s low back 
condition is characterized by pain with radiation to the left 
lower extremity and forward flexion limited to 40 degrees.  As 
there is no evidence in the record to discrete neurological 
injury affecting the left lower extremity, the radicular pain 
must be rated together with the low back condition, as separate 
rating would constitute pyramiding, which is prohibited by the 
Veterans Administration Schedule for Rating Disabilities 
(VASRD).  The member’s condition characterization correlates to 
20 percent disability rating.”

The applicant had over 20 years of satisfactory service and was 
eligible to elect transfer to the Inactive Status List Reserve 
Section (ISLRS) for the purpose of applying for a Reserve 
retirement under Title 10 USC, Section 12731, in lieu of 
discharge with severance pay (DWSP).  On 21 January 2011, the 
applicant elected to transfer to ISLRS and Reserve Order EK-
2838 issued 28 February 2011 placed the applicant in ISLRS 
effective 22 May 2011.

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AIR FORCE EVALUATION:

AFPC/DPFD recommends denial.  DPFD states as background, the 
Department of Defense and the Department of Veterans Affairs 
(DVA) disability evaluation systems operate under separate laws.  
Under Title 10, USC, Physical Evaluation Boards must determine 
if a member’s condition renders them unfit for continued 
military service relating to their office, grade, rank or 
rating.  The fact that a person may have a medical condition 
does not mean that the condition is unfitting for continued 
military service.  To be unfitting, the condition must be such 
that it alone precludes the member from fulfilling their 
military duties.  If the board renders a finding of unfit, the 
law provides appropriate compensation due to the premature 
termination of their career.  Further, it must be noted the USAF 
disability boards must rate disabilities based on the member’s 
condition at the time of evaluation; in essence of snapshot of 
their condition at that time.  It is the charge of the DVA to 
pick up where the AF must, by law, 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 preponderance of evidence 
reflects that no error or injustice occurred during the 
disability process.

The DPFD complete evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 25 January 2013, a copy of the evaluation was forwarded to 
the applicant for review and response within 30 days (Exhibit 
D).  As of this date, no response has been received by this 
office. 

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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 injustice.  The 
applicant’s contentions are duly noted; 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.

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.

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THE BOARD DETERMINES THAT:

The applicant be notified 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.

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The following members of the Board considered AFBCMR Docket 
Number BC-2012-05273 in Executive Session on 13 August 2013, 
under the provisions of AFI 36-2603:


The following documentary evidence was considered:

  Exhibit A.  DD Form 149, dated 8 November 2012, w/atchs.
  Exhibit B.  Applicant’s Available Master Personnel Records.
  Exhibit C.  Letter, AFPC/DPFD, dated 18 January 2013.
  Exhibit D.  Letter, SAF/MRBR, dated 25 January 2013.





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