RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2013-00775
	 XXXXXXX	COUNSEL: NONE
		HEARING DESIRED: NO

________________________________________________________________

APPLICANT REQUESTS THAT:

1.  She receive a Permanent Disability Retirement.

2.  She be awarded enough points to complete a 20th year of 
satisfactory service and eligibility for Concurrent Retirement 
and Disability Pay (CRDP).

________________________________________________________________

APPLICANT CONTENDS THAT:

Her supervisor’s abusive behavior from 1986 through 1989 was the 
cause of her physical and mental conditions.

In support of her request, the applicant provides a personal 
statement, copies of extracts from her medical records, witness 
statements, Department of Veterans Affairs (DVA) Rating 
Decision, military documents, and various other items in support 
of her request.

Her complete submission, with attachments, is at Exhibit A.

________________________________________________________________

STATEMENT OF FACTS:

The relevant facts pertaining to this application are contained 
in the letters prepared by the appropriate office of the Air 
Force and the BCMR Medical Consultant at Exhibits B and C.

________________________________________________________________

AIR FORCE EVALUATION:

ARPC/DPTT recommends denial of the applicant’s requests for 
Reserve retired pay and CRDP.  DPTT states that since the 
applicant did not complete 20 years of satisfactory service, she 
is not eligible for CRDP under the provisions of Title 10, 
§ 1414.  A service member rated at 50 percent or higher by the 
DVA can receive compensation from the DVA and not have that 
amount reduced from their military retirement.  To establish 
eligibility for CRDP, one must complete 20 years of satisfactory 
service.

Eligibility for a Reserve retirement requires a member to 
complete 20 years of satisfactory service.  The applicant 
completed 19 years of satisfactory service creditable toward 
retired pay as of 7 Jul 1994, the date of her discharge from the 
Air Force Reserve.  Therefore, she is not eligible for Reserve 
retired pay under the provision of Title 10, § 12731.  The 
National Defense Authorization Act for Fiscal Year 1995, which 
was signed into law on 5 Oct 1994, amended Title 10, § 12731 to 
include early qualification for retired pay for members who were 
medically disqualified for duty.  To establish eligibility for 
Reserve retired pay at age 60 under the provision of Title 10, 
§ 12731 (b), for physical disqualification, a member must have 
completed at least 15 years, but less than 20 years of 
satisfactory Federal service and medically disqualified for 
military service on or after 5 Oct 1994.  Since the applicant's 
record does not show she was medically disqualified and she was 
honorably discharged prior to 5 Oct 1994, she is not eligible 
for Reserve retired pay under this provision of law.

The complete DPTT evaluation, with attachment, is at Exhibit B.

The BCMR Medical Consultant recommends denial of the applicant’s 
request for points and a medical retirement.  The Medical 
Consultant opines that the applicant has not met the burden of 
proof of error or injustice that warrants the desired change of 
the record.  The discharge was consistent with the procedural 
and substantive requirements of the discharge regulation.  The 
applicant has offered unmistakably evidence to support she 
suffers from various psychiatric conditions, and that those 
conditions are disqualifying for military service.  On 6 Feb 
1994, she underwent a fitness for duty determination.  AF Form 
618, Medical Board Report, found the applicant unfit for duty.  
A "Fit for Duty" determination was done in lieu of a "Line of 
Duty" determination because her psychiatric conditions were 
deemed to have "Existed Prior to Service (EPTS).”  Her Point 
Credit Air Reserve Summary shows she performed the usual and 
customary Inactive Duty Training (24 days a year) and Active 
Duty (14 days a year) required of a reservist between 1986 and 
1989.  The alleged abuse from her supervisor was during her full 
time civilian employment as a Air Reserve Technician (ART).  
Although ARTs wear their military uniforms, they are civilian 
employees and are not in a military status.  Logic would depict 
that if her supervisor had some culpability for her medical 
condition then it would have occurred during her civilian 
employment.  The Medical Consultant found no evidence to support 
that her medical conditions deteriorated while on duty, but 
rather her problems occurred during full time working hours.  
This concept is supported by the applicant's reference letters, 
individuals she worked with on a daily basis.  The Medical 
Consultant found no Line of Duty determinations within the 
medical records, to support anything other than a "non-duty 
related impairment or condition."  Members with non-duty related 
impairments are eligible to be referred to the PEB for solely a 
fitness determination but not a determination of eligibility for 
disability.

The Medical Consultant is confused as to why the DVA offered 
compensation for "removal of ovaries and uterus - 50 percent, 
eurogenic bladder - 40 percent, dysthymic disorder, major 
depression - 30 percent, and fibrocystic breasts - 10 percent, 
when they appear not to be duty related nor are they In Line of 
Duty.  The Medical Consultant assumes this is because the DVA 
operates under a different set of laws (Title 38, U.S.C.), with 
a different purpose, the DVA is authorized to offer compensation 
for any medical condition determined service incurred, without 
regard to [and independent of] its demonstrated or proven impact 
upon a service member's retainability, fitness to serve, 
narrative reason for separation, or the intervening or 
transpired period since the date of separation.  With this in 
mind, Title 38, which governs the DVA compensation system, was 
written to allow awarding compensation ratings for conditions 
that were not unfitting for military service or at the time of 
separation.  This is the reason why an individual can be found 
fit for release from military service and yet sometime 
thereafter receive a compensation rating from the DVA for 
service-connected, but militarily non-unfitting conditions.  The 
DVA is also empowered to conduct periodic re-evaluations for the 
purpose of adjusting the disability rating awards (increase or 
decrease) as the level of impairment from a given service 
connected medical condition may vary (improve or worsen, 
affecting future employability) over the lifetime of the 
veteran.

The complete Medical Consultant’s evaluation is at Exhibit C.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 22 May 2013, copies of the Air Force and BCMR Medical 
Consultant evaluations were forwarded to the applicant for 
review and comment within 30 days.  As of this date, no response 
has been received by this office (Exhibit D).

________________________________________________________________

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 error or injustice.  We took notice 
of the applicant's complete submission in judging the merits of 
the case; however, we agree with the opinions and 
recommendations of the Air Force office of primary 
responsibility and the BCMR Medical Consultant and adopt their 
rationale as the basis for our conclusion 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.

_______________________________________________________________

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 BC-2013-
00775 in Executive Session on 19 Nov 2013, under the provisions 
of AFI 36-2603:

, Panel Chair
, Member
, Member

The following documentary evidence was considered:

 Exhibit A.  DD Form 149, dated 7 Feb 2013, w/atchs.
 Exhibit B.  Letter, ARPC/DPTT, dated 29 Mar 2013.
 Exhibit C.  Letter, BCMR Medical Consultant, dated 20 May 2013.
 Exhibit D.  Letter, SAF/MRBC, undated.




                                   
                                   Panel Chair



 


Office of the Assistant Secretary