RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF: 			DOCKET NUMBER: BC-2014-02246
 					COUNSEL:  NONE
					HEARING DESIRED:  YES 


APPLICANT REQUESTS THAT:

His medical discharge be changed to a medical retirement.  


APPLICANT CONTENDS THAT:

He was not given any options and was not in a position to 
challenge the discharge decision.  

In Jan 96, he had brain surgery and it left him with residual 
problems ever since. 

In Aug 96, he was placed on the Temporary Disability Retired 
List (TDRL).  

The physician who conducted the TDRL follow-on evaluation was 
disgruntled and within three minutes of the evaluation stated he 
was recommending that he be discharged.  
 
The Air Force was conducting a Reduction In Force (RIF) and his 
name was on the list because of his surgery.  He was given 
severance pay and advised that if he tried to fight staying in, 
he would lose everything and still be out of the military.  He 
was scared and confused as he had a family, no job and a partial 
disability.  He was not given a chance to speak to the board, 
even after his time on the TDRL. 

He has been told by the Department of Veterans Affairs (DVA) 
that he should have been medically retired.  Two years ago he 
met with his Senator who agreed his discharge was a mistake and 
he was advised to pursue a correction.  He could provide more 
information if given the opportunity to address the Board.

The Board should consider it in the interest of justice to 
consider his untimely application as he has been trying to get 
his records corrected for the past 18 years.  He was treated 
unjustly but no one could help.  He gave up until recently.  

The applicant’s complete submission is at Exhibit A.




STATEMENT OF FACTS:

On 13 Oct 83, the applicant entered the Regular Air Force.  

Per Special Order ACD-1543 dated 25 Jun 96, the applicant was 
relieved from active duty effective 6 Aug 96 and was placed on 
the TDRL in the grade of Staff Sergeant (SSgt, E-5) with a 
compensable percentage for physical disability of 40 percent.  

Per Special Order TDD-0327 dated 19 Dec 97, the applicant was 
scheduled for his periodic TDRL examination on 16 Jan 98 as 
required by 10 U.S.C § 1210.  The evaluating physician 
recommended he not be returned to active duty. 
  
According to AF Form 356, Findings and Recommended Disposition 
of USAF Physical Evaluation Board, dated 2 Feb 98, the Informal 
Physical Evaluation Board (IPEB) reviewed the TDRL examination 
and determined the applicant’s medical condition as 
neurologically stable and his residual deficits relatively mild.  
The IPEB recommended that he be Discharged With Severance Pay 
(DWSP) with a 10 percent compensable disability rating for an 
unfitting condition of weakness of right hand.   

On 19 Feb 98, the applicant concurred with the recommended 
findings of the IPEB.  

On 2 Mar 98, the Secretary of the Air Force directed the 
applicant’s name be removed from the TDRL and he be DWSP under 
the provisions of 10 U.S.C. § 1203.  

According to Special Order ACD-0600 dated 2 Mar 98, the 
applicant was removed from the TDRL effective 22 Mar 98 and DWSP 
in the grade of SSgt.  He was credited with 12 years, 9 months 
and 23 days of service for severance pay.  


AIR FORCE EVALUATION:

AFPC/DPFD recommends denial indicating the preponderance of the 
evidence reflects there was no error or injustice that occurred 
during the disability process or at time of separation.

On 10 Jun 96, the IPEB recommended the applicant be placed on 
the TDRL with a disability rating of 40 percent for diagnosis of 
generalized tonic-clonic seizure disorder, status post 30 Jan 
96 left parietal craniotomy with sterotactic guided resection of 
cavernous hemangioma. The applicant concurred with the 
recommendation on 21 Jun 96 and he was placed on the TDRL on 
25 Jun 96 with an established retirement date of 6 Aug 96.

On 16 Jan 98, he was scheduled for his first TDRL re-evaluation 
and the IPEB reviewed the medical information on 2 Feb 98 and 
recommended the applicant be removed from TDRL and DWSP with a 
10 percent disability rating.  The board noted from the 
neurological consult “Applicant’s medical condition is now 
considered neurologically stable and his residual deficits are 
relatively mild.  Member still cannot adequately control his 
right hand.  The IPEB finds member unfit and recommends DWSP.”  
On 19 Feb 98, the applicant concurred with the findings.  
Special Order ACD-0600 was issued on 2 Mar 98 that removed the 
applicant from TDRL effective 22 Mar 98.

As background, the DVA Disability Evaluation System (DES) 
operates under separate laws.  Under 10 U.S.C., PEBs must 
determine if a member’s condition renders them unfit for 
continued military service relating to their office, grade, rank 
or rating.  Further, it must be noted the Air Force disability 
boards must rate disabilities based on the member’s condition at 
the time of evaluation; in essence a “snapshot” of their 
condition at that time.  It is the charge of the DVA to pick up 
where the Air Force, by law, leaves off.  Under 38 U.S.C., the 
DVA may rate any service-connected condition based upon future 
employability or reevaluate based on changes in the severity of 
a condition.

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

The BCMR Medical Consultant recommends denial of the request for 
a medical retirement.  The applicant has not met the burden of 
proof of error or injustice to warrant the desired change and 
the request has also not been timely filed.

The Medical Consultant adopts the discussion of DPFD.  The 
military DES, established to maintain a fit and vital fighting 
force, can by law under 10 U.S.C., only offer compensation for 
those service incurred diseases or injuries which specifically 
rendered a member unfit for continued active service and were 
the cause for career termination; and then only for the degree 
of impairment present at the “snapshot” time of separation and 
not based on post-service progression of disease or injury.  

Members are placed on the TDRL when their medical condition 
rates at least 30 percent and the condition has not yet been 
stabilized.  Following a reasonable period in TDRL status [12 to 
18 months], reexaminations are conducted to determine if the 
condition has improved, worsened or remained the same.  Based 
upon the clinical assessment of the neurologist in Jan 98, the 
IPEB concluded the applicant’s medical condition was 
sufficiently stabilized and implicitly improved to warrant 
removal from the TDRL status; and to then rate any existing 
residual impairments.  The IPEB only found the residual weakness 
of the applicant’s right hand unfitting and rated it at 
10 percent under the Veterans Affairs Schedule for Rating 
Disabilities (VASRD) code 8599-8516.  Any other service-
connected medical conditions that were not related to the 
initial reason for TDRL placement or its treatment, cannot be 
later included in the TDRL rating computation; without regard to 
its severity at the time of the TDRL review.     

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


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the 
applicant on 20 Jan 15 for review and comment within 30 days 
(Exhibit E).  As of this date, no response has been received by 
this office.


FINDINGS AND CONCLUSIONS OF THE BOARD:

1.  After careful consideration of the 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.  It has been almost 17 years since the applicant’s 
discharge and the unreasonable delay has caused prejudice to the 
Air Force as relevant records have been destroyed or are no 
longer available.  The 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.  

2.  The applicant’s case is 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 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-2014-02246 in Executive Session on 17 Mar 15 under the 
provisions of AFI 36-2603:

	 , Panel Chair
	 , Member
	 , Member

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 1 Jun 14.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPFD, dated 24 Jul 14.
	Exhibit D.  Memorandum, BCMR Medical Consultant, dated 
15 Jan 15.  
        Exhibit E.  Letter, SAF/MRBR, dated 20 Jan 15.