RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:	DOCKET NUMBER:  BC-2013-03698

		COUNSEL:  NONE
		
		HEARING DESIRED:  NO 


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APPLICANT REQUESTS THAT:

Her records be corrected to reflect she served 20 years of active service to qualify for Concurrent Retirement and Disability Pay (CRDP).  

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APPLICANT CONTENDS THAT:

1.  She intended to remain on active duty for a full 20 years; however, she was forced to medically retire for reasons beyond her control.  The disabling condition of her hand that ruined her nursing career was due to malpractice caused by an air force medical technician.  

2.  Disabled veterans were recently awarded full concurrent disability benefits from both the service and the Department of Veterans Affairs (DVA); however, in order to receive such benefits, a veteran must have served at least 20 years of active service.  In view of the fact that her career was cut short due to malpractice, she should be credited with the 20 years of active service that she planned to perform and entitled to full concurrent receipt of her military disability retired pay and disability compensation from the DVA. 

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

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STATEMENT OF FACTS:

The applicant’s military personnel records indicate that she was commissioned in the Air Force Reserve on 24 Feb 93.  

On 17 Apr 94, the applicant’s hand was accidently bitten by her dog.  The incident was found to be in the line of duty (LOD).  

On 25 Apr 95, a Medical Evaluation Board (MEB) convened to consider the applicant for continued active service.  The board recommended the applicant be referred to a Physical Evaluation Board (PEB) for her right hand pain and decreased range of motion.  

On 27 Apr 95, the applicant concurred with the findings and recommendation of the MEB.  

On 22 Jun 95, a second MEB convened to consider all of the applicant’s potentially unfitting conditions.  The board recommended the applicant be referred to an Informal Physical Evaluation Board (IPEB) for evaluation of her hand (extensive adhesions of extensor), as well as for her hypothyroidism and bilateral hearing loss that existed prior to service.  

On 25 Jul 95, after reviewing all the facts and circumstances of the applicant’s case, the IPEB found the applicant unfit for continued duty and recommended she be transferred to the temporary disability retired list (TDRL), with a combined compensable disability rating of 50 percent.  The IPEB noted the applicant’s limited flexion fingers, extensor tenolysis with residual limited range of motion, as well as her other diagnoses which were considered but not ratable.  

On 10 Aug 95, the applicant concurred with the findings and recommended disposition of the PEB. 

On 6 Oct 95 , the applicant was relived from active duty and was transferred to the TDRL in the retired grade of first lieutenant (O-2), effective 7 Oct 95, with a combined compensable physical disability rating of 50 percent.  

On 8 Jul 97, during a periodic review of the applicant’s case, the IPEB determined the applicant was unfit and recommended she be permanently retired with a compensable disability rating of 40 percent.  

On 19 Aug 97, the Secretary of the Air Force Personnel Council (SAFPC) directed the applicant’s compensable disability rating be revised to 50 percent.  

On 19 Aug 97, the Secretary of the Air Force directed the applicant be removed from the TDRL, effective 8 Sep 97, and she be permanently retired for physical disability in the grade of first lieutenant with a combined compensable disability rating of 50 percent.  She was credited with 2 years, 7 months, and 13 days of total active service.  

The remaining relevant facts pertaining to this application are described in the letter prepared by the Air Force office of primary responsibility, which is attached at Exhibits C and D.  

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AIR FORCE EVALUATION:

AFPC/DPFD recommends denial indicating the preponderance of evidence reflects that no error or injustice occurred in the applicant’s disability processing or at the time of separation.  The applicant contends she qualifies for participation in the CRDP program because her injuries sustained by a medical technician led to her inability to fulfill a 20 year Air Force career.  A medical technician improperly irrigated her hand, which had sustained a dog bite, causing the loss of motor skills. Subsequently, she was retired with a permanent disability on 6 Oct 95.  CRDP is a phased-in restoration of the retired pay deducted from military retirees’ account due to their receipt of Department of Veterans Affairs (DVA) compensation.  Those retired military members entitled to CRDP automatically began receiving these benefits as of 1 January 2004.  In accordance with 10 USC § 1414(b) (1), eligibility for CRDP requires at least 20 years of creditable service.  The applicant was credited with 2 years, 7 months, and 13 days of active service; therefore, she is ineligible for CRDP.  

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

AFPC/DPSOR recommends denial indicating there is no evidence of an error or injustice in the applicant’s disability processing or total active federal military service (TAFMS) time.  The applicant contends she should be awarded a longevity retirement (as if she had served 20 years) since it was her intent to complete the required service for retirement from active duty.  However, she was permanently retired with a physical disability rating of 50 percent after completing 2 years, 7 months, and 13 days of active service.  In accordance with 10 U.S.C. § 8911, an officer must complete 20 years TAFMS to qualify for a nondisability retirement.  In order to qualify for a nondisability retirement under 10 U.S.C. § 8911, the applicant must provide evidence to show that she completed 20 years TAFMS.  While she may have “intended” to serve for 20 or more years, the applicant did not complete the service required by law to qualify for a longevity (20+ years) retirement.  

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

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant argues if she had gone to a local hospital they would have been held responsible.  However, her career as a Labor and Delivery Registered Nurse, Air Force officer, was ended through malpractice at an Air Force hospital and the Air Force should be held responsible.  The issue should not be of serving 20 years but receiving compensation for the Air Force ruining her career.  She further argues, she meets the requirement for retirement pay as established by 10 U.S.C. § 1201, item (b)(3)(B) (i-iv).  Her request for retirement pay is based on this statute, the committed malpractice (whether intentional or accidental), and evidence in her medical records.

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

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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 warranting corrective action.  We took notice of the applicant's complete submission, including her response to the Air Force evaluations, in judging the merits of the case; however, we agree with the opinions and recommendations of the Air Force offices or primary responsibility and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice warranting corrective action.  While it is regrettable the applicant’s career was cut short due to unfortunate circumstances, it appears the disability evaluation system (DES) functioned properly and she continues to receive disability benefits appropriate to her disability and circumstance.  While the applicant argues that she should be credited with 20 years of active service as recompense for the malpractice she indicates caused her disability, other than argument and conjecture, she has presented no evidence whatsoever that she has been treated differently than other similarly situated.  Therefore, while we empathize with the applicant’s plight, we find no basis to we find no basis to recommend granting the relief sought in this application.  

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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.

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The following members of the Board considered AFBCMR Docket Number BC-2013-03698 in Executive Session on 20 May 14, under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 29 Jul 13, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records
	Exhibit C.  Letter, AFPC/DPFD, dated 25 Oct 13.
	Exhibit D.  Letter, AFPC/DPSOR, dated 6 Nov 13.
	Exhibit E.  Letter, AFBCMR, dated 13 Jan 14.
	Exhibit F.  Letter, Applicant, dated 16 Jan 14.




                                   
                                   Panel Chair

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