RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF: 	DOCKET NUMBER: BC-2013-03311

					COUNSEL:  NONE

		HEARING DESIRED:  NO 



APPLICANT REQUESTS THAT:

The Air Force resume or reinstate his medical retirement pay.


APPLICANT CONTENDS THAT:

He believes it is an error that the Air Force has not resumed or reinstated his medical retirement payments since the Department of Veterans Affairs (DVA) has stopped these payments.  He received his injuries on active duty, and as a result of the Air Force’s initial attempts to correct the injuries, his conditions not only became aggravated, new medical conditions were incurred as a result of the surgeries.  

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


STATEMENT OF FACTS:

The applicant initially entered the Regular Air Force on 4 Jun 69.

On 1 Nov 75, the applicant was placed on the temporary disability retired list (TDRL).

On 6 Mar 80, the informal physical evaluation board (IPEB) recommended the applicant be permanently retired with 100 percent disability rating.

On 10 Apr 80, the applicant was removed from the TDRL and permanently retired for physical disability in the grade of sergeant, with a combined compensable disability rating of 100 percent. 

On 6 Apr 10, AFPC/DPSD found the applicant’s entire basis for his disability retirement to be fraudulent, revoking his temporary and permanent disability retirement orders on the basis of fraud.  They further requested all agencies take appropriate action to discontinue future payments and effect recoupment.   

The remaining relevant facts pertaining to this application are contained in the memorandums prepared by the Air Force offices of primary responsibility (OPR), which are attached at Exhibits C, D and E.    


AIR FORCE EVALUATION:

AFPC/DPFD recommends denial indicating there is no evidence of an error or an injustice.  On 1 Oct 75, the IPEB placed the applicant on the TDRL with a disability rating of 30 percent.  On 10 Mar 80, after three TDRL reevaluations by the IPEB, the applicant was removed from the TDRL and permanently retired with a 100 percent disability rating for paraplegia, complete T-12 level (100 percent), neurogenic bladder (60 percent) and mild hypertension (0 percent).  The preponderance of evidence reflects no error or injustice occurred during the disability process or at the time of removal from the TDRL.  

A complete copy of the AFPC/DPFD evaluation is at Exhibit C.

AFPC/JA recommends denial because the application is untimely.  The applicant admits on his DD Form 214, Certificate of Release or Discharge from Active Duty, that the alleged error or injustice occurred and was discovered on 1 Dec 09, when the DVA stopped his disability payments.  On the merits, the applicant has failed to present evidence that any action taken by the Air Force constituted an injustice.  On 20 Aug 08, the applicant was indicted in the District Court of Idaho on fifty-five counts of Wire Fraud and Making False Statements regarding his disability.  He pled guilty in Federal Court to making false statements to the Air Force and the DVA in order to receive disability benefits.  The focus of his criminal case was his false statement about paraplegia, but he also pled guilty to making false statements regarding the extent of his neurogenic bladder injuries.  On 1 Oct 75, at the time he was initially placed on TDRL, and perhaps prior to making false statements to which he pled guilty, his neurogenic bladder condition was rated at 20 percent by the IPEB.  According to 10 USC 1203, when a medical condition is rated less than 30 percent the IPEB can only grant a member severance pay vice retirement pay.  However, after admittedly making false statements regarding the extent of his injuries, the applicant's neurogenic bladder injuries were subsequently rated by the IPEB at 60 percent.  Therefore, he would have been entitled to draw disability retirement pay for the neurogenic bladder condition if that had been his only medical disability, i.e. if he had not made false statements about being a paraplegic.  The applicant did not suffer an injustice.  He gained a windfall from the Air Force in 1980, when he received permanent retirement as a result of making false statement regarding his neurogenic bladder condition.  

A complete copy of the AFPC/DPFD evaluation is at Exhibit D. 

The AFBCMR Medical Consultant recommends denial indicating there is no evidence of an error or an injustice regarding the applicant’s request for medical retirement.  The medical reviewer notes the absence of any medical documentation or relevant administrative documents during the applicant's service period.  However, the applicant's appeal statements state he seeks medical retirement pay from the USAF which has been discontinued by the DVA.  Although no medical documentation is available, a memo dated 25 Feb 14 from AFPC/DPFD to AFBCMR contained summary information relevant to the applicant's appeal.  As reported by the applicant, he sustained traumatic injuries from a snowmobile accident during 1975.  On or around 1 Oct 75, the IPEB recommended placement on the TDRL with  a disability rating of 30 percent for a combined diagnosis of Neurogenic bladder requiring frequent catherization (20 percent), Post laminectomy-discectomy L4-L5  from a snowmobile accident (10 percent) and Hypertension, mild intermittent (0 percent).  The applicant's assertion that the Air Force is obliged to assume responsibility for medical retirement through some error or injustice is unsubstantiated with the facts available for this review.  Given the plethora of false and misleading statements proven in the case, there remain substantive questions as to the true extent of the applicant's injuries following the reported traumatic event.  However, the preponderance of evidence strongly supports the premise that no error or injustice has occurred on behalf of the applicant.  

A complete copy of the AFPC/DPFD evaluation is at Exhibit F. 


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 27 May 14 for review and comment within 30 days (Exhibit G).  As of this date, no response has been received by this office.


FINDINGS AND CONCLUSIONS OF THE BOARD:

After careful consideration of applicant’s request and the available evidence of record, we find the application untimely.  Applicant did not file within three years after the alleged error or injustice was discovered as required by Title 10, United States Code, Section 1552 and Air Force Instruction    36-2603.  Applicant has not shown a plausible reason for the delay in filing, and we are not persuaded that the record raises issues of error or injustice which require resolution on the merits.  Thus, we cannot conclude it would be in the interest of justice to excuse the applicant’s failure to file in a timely manner.


THE BOARD DETERMINES THAT:

The application was not timely filed and it would not be in the interest of justice to waive the untimeliness.  It is the decision of the Board, therefore, to reject the application as untimely.


The following members of the Board considered AFBCMR Docket Number BC-2013-03311 in Executive Session on 24 Mar 15 under the provisions of AFI 36-2603:

	
 

The following documentary evidence pertaining to AFBCMR Docket Number BC-2013-03311 was considered:

	Exhibit A.  DD Form 149, dated 7 Jul 13, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPFD, dated 25 Feb 14.
Exhibit D.  Memorandum, AFPC/JA, dated 26 Feb 14.
Exhibit E.  Memorandum, AFBCMR Medical Consultant, dated
	7 Apr 14.
Exhibit F.  Letter, SAF/MRBR, dated 27 May 14.