RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:	DOCKET NUMBER:  BC-2013-05087

		COUNSEL:  NONE

		HEARING DESIRED:  YES 




APPLICANT REQUESTS THAT:

His Honorable discharge with a narrative reason for separation of “Disability, Severance Pay,” be changed to an Honorable retirement with permanent disability. 



APPLICANT CONTENDS THAT:

1.  He was led to believe he shouldn’t appeal his Medical Evaluation Board (MEB) determination because the current board would reduce the originally offered compensation, so he accepted his medical discharge with severance pay and a 20 percent disability rating. 

2.  He should not have been denied the opportunity to apply for early retirement under the Air Force voluntary 15-year retirement program (Temporary Early Retirement Authority (TERA)).  Even though he was in a critical Air Force Specialty Code (AFSC), not eligible to participate in TERA, he was medically unable to perform his required duties in this critical AFSC.  

3.  His family is in financial hardship as a result of the Department of Veterans Affairs (DVA) awarding him disability and compensation for his hip injury, and not having a military retirement. 

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



STATEMENT OF FACTS:

The applicant initially entered the Regular Air Force on 2 Sep 82.

On 2 Sep 97, the applicant was furnished an Honorable discharge with a narrative reason for separation of “Disability, Severance Pay,” and credited with 15 years and 1 day of active service.

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



AIR FORCE EVALUATION:

AFPC/DPFD recommends denial indicating there is no evidence of an error or an injustice.  The Informal Physical Evaluation Board (IPEB) reviewed the applicant’s medical board on 18 Jun 97 for osteoarthritis, bilateral hips, right greater than left and recommended discharge with severance pay with a disability rating of 20 percent.  On 25 Jun 97, the applicant concurred with the recommended findings.  It should be noted that the applicant did not use his two appeal rights to have his case reviewed by the Formal Physical Evaluation Board or by the Secretary of the Air Force Personnel Council.  

The Department of Defense (DoD) and the DVA disability evaluation systems operate under separate laws.  Under Title 10, United States Code (U.S.C.), PEBs must determine if a member’s condition renders them unfit for continued military service relating to 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 PEB renders a finding of unfit, the law provides appropriate compensation due to the premature termination of their career.  Further, Air Force disability boards must rate disability based on the member’s condition at the time of evaluation; in essence a snapshot of his condition at the 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 the service connected condition based upon future employability or reevaluate based on changes in the severity of a condition.

Regarding the applicant’s contention that he was not allowed to apply for the TERA program; the Secretary of the Air Force authorized TERA only for officers requesting a retirement date of 1 Oct 96 through 1 Sep 97.  Authorization for the enlisted voluntary early retirement program started 1 Oct 97, one month after the applicant was discharged. 

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



The AFBCMR Medical Consultant recommends denial indicating there is no evidence of an error or an injustice.  The applicant’s medical records show, beginning in 1991, he received recurring evaluations and treatment for multiple musculoskeletal complaints, but predominantly right hip pain, reportedly since injuring himself in a fall from an aircraft ladder on which he was performing his duties.  Additional physical complaints consisted of periodic numbness in the feet and legs with activity and bilateral knee pain.  During CYs 1996 and 1997 he was treated in physical therapy and underwent extensive evaluations by an internal medicine specialist, a neurologist, and a rheumatologist, in search of a possible systemic cause for his complaints, to include an MRI scan, bone scan, and multiple laboratory analyses.  However, no systemic inflammatory disease was identified, and it was only the applicant’s right hip pain that consistently landed him profile restrictions that ultimately triggered the MEB and referral to an IPEB, which resulted in his 20 percent disability rating.  In order for the applicant to have qualified for a medical retirement he must have achieved a minimum 30 percent single or combined disability rating. 

The Medical Consultant did not have access to the applicant’s MEB narrative summary or the AF Form 356, Findings and Recommended Disposition of Informal Physical Evaluation Board, for comment.  However, it is implicit that the applicant accepted the 20 percent disability rating assigned for his right hip, for the implicitly alleged reason of his concern for a further reduction in his disability rating if he pursued an appeal.  

A complete copy of the AFBCMR Medical Consultant evaluation is at Exhibit D.



APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 18 Aug 14 for review and comment within 30 days.  As of this date, no response has been received by this office (Exhibit E).



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 (U.S.C.), §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-2013-05087, in Executive Session on 2 Oct 14, under the provisions of AFI 36-2603:

	
The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 1 Oct 13, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, AFPC/DPFD, dated 16 Jan 14.
Exhibit D.  Letter, AFBCMR Medical Consultant, dated 16 Jul 14.
Exhibit E.  Letter, SAF/MRBR, dated 18 Aug 14. 

						

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