RECORD OF PRPOCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2013-00557
		COUNSEL: NONE
		HEARING DESIRED: YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

His record be corrected to show he was retired by reason of 
“medical retirement” rated at 100 percent rather than “voluntary 
length of service.” 

_________________________________________________________________

APPLICANT CONTENDS THAT:

The Department of Veterans Affairs (DVA) rated him at 90 percent 
and he will ultimately be rated at 100 percent.  He was not 
aware of the possibility of being medically retired because he 
had been through a “Fast-Track” Medical Evaluation Board (MEB).  
He was not counseled on his options and now realizes that he 
could have gone through the medical retirement process.

In support of his request, the applicant provides copies of his 
medical records, DD Form 214, Certificate of Release or 
Discharge from Active Duty; retirement orders, Department of 
Veterans Affairs (DVA) rating decision and various other 
documents associated with his request. 

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

_________________________________________________________________

STATEMENT OF FACTS:

On 31 Oct 12, the applicant was retired in the grade of colonel.  
He served 25 years, 4 months and 26 days of active service. 

On 6 Dec 12, the DVA granted the applicant service-connection 
for numerous medical conditions with a 90 percent disability 
rating. 

The remaining relevant facts pertaining to this application are 
contained in the letter prepared by the appropriate office of the 
Air Force, which is attached at Exhibit B.

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AIR FORCE EVALUATION:

The BCMR Medical Advisor recommends denial.  The Medical Advisor 
states that “Fast-Track MEBs are conducted when a disqualifying 
medical condition exists under AFI 48-123, Medical Examinations 
and Standards, but the medical ailment may not sufficiently 
interfere with service to adversely affect retainability and the 
needs of the Air Force.  In such cases, medical officials 
monitoring the MEB process (AFPC/DPANM, Medical Standards 
Division), are authorized to defer formal MEB processing and 
return an individual to duty without referral to a Physical 
Evaluation Board (PEB).  The individual may be issued an 
Assignment Limitation Code-C (ALC-C) which may restrict 
assignment to certain locations, but otherwise permit retention 
with periodic assessments.  

The Medical Advisor opines that the Military Departments, 
operating under Title 10, United States Code (USC), can only 
offer compensation for an illness, disease, or injury that is 
the cause for career termination; and then only to the degree of 
impairment present at the “snap-shot” time of final military 
disposition.  Whereas, operating under a different set of laws, 
Title 38, USC, the DVA is authorized to offer compensation for 
any medical condition determined service-incurred, without 
regard to its proven or demonstrated impact upon a service 
member’s retainability, fitness to serve, or narrative reason 
for release from military service.  This is the reason why an 
individual may be released from military service for one reason, 
yet receive compensation ratings from the DVA for conditions 
that were service-connected, but not found militarily unfitting 
for continued military service.  

The Medical Advisor opines that under the topic Presumption of 
Fitness in accordance with (IAW) Department of Defense 
Instruction 1332.38, Physical Disability Evaluation “except for 
service members previously determined unfit and continued in a 
permanent limited duty status, service members who are pending 
retirement at the time they are referred for physical disability 
evaluation enter the Disability Evaluation System (DES) under a 
rebuttable presumption that they are physically fit.  The DES 
compensates disabilities when they cause or contribute to career 
termination.  Continued performance of duty until a service 
member is approved for length of service retirement creates a 
rebuttable presumption that a service member’s medical 
conditions have not caused career termination.” 

Finally, the Medical Advisor opines that even if the applicant 
is considered for a de facto MEB processing and referral to a 
PEB, the final action would be return to duty, under the 
Presumption of Fitness rules.  




The complete BCMR Medical Advisor evaluation is at Exhibit B.

_________________________________________________________________

APPLICANT’S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATION:

A copy of the BCMR Medical Advisor evaluation was forwarded to 
the applicant on 4 Apr 13, for review and comment within 30 days 
(Exhibit C).  As of this date, this office has not received a 
response. 

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1. The applicant has exhausted all remedies provided by existing 
law or regulations.

2. The application was timely filed. 

3.  Insufficient relevant evidence has been presented to 
demonstrate the existence of error or injustice warranting 
changing his retirement for voluntary length of service to a 
medical retirement.  We took notice of the applicant's complete 
submission in judging the merits of the case and do not find that 
it supports a determination that the applicant was improperly 
retired from active duty.  The applicant has provided no evidence 
which would lead us to believe that at the time of his 
separation, a physical condition existed that was determined by 
competent medical authority to be a physical disability which 
specifically rendered him unfit for continued military service.  
Therefore, we agree with the recommendation of the BCMR Medical 
Consultant and adopt his opinion as our findings in this case.  
In view of the above and in the absence of evidence to the 
contrary, we find no basis to favorably consider the applicant’s 
request.

4.  The applicant’s case has been 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.

_______________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not 
demonstrate the existence of material error or injustice; that 
the application was denied without a personal appearance; and 
that 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-2013-00557 in Executive Session on 29 Oct 13, under 
the provisions of AFI 36-2603:

				Panel Chair
				Member
				Member

The following documentary evidence was considered:

       Exhibit A.  DD Form 149, dated 16 Jan 13, w/atchs.
       Exhibit B.  Letter, BCMR Medical Advisor, dated 2 Apr 13.
       Exhibit C.  Letter, SAF/MRBC, dated 4 Apr 13.




							
							Panel Chair
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