RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2014-03014
COUNSEL: NONE
HEARING DESIRED: NO
APPLICANT REQUESTS THAT:
He be medically retired with a 30 percent disability rating.
APPLICANT CONTENDS THAT:
He should not have been discharged without disability
entitlements. To date, he has suffered from sarcoidosis and
there is no known cure.
He understood that when he was put on the Temporary Disability
Retired List (TDRL) that it would be a temporary situation. At
the time of his diagnosis there was very little known about the
disease and he was unaware he would have to live with his
condition for the rest of his life.
In support of his request, the applicant provided a copy of AF
Form 2654, Retirement Special Order Removal from TDRL, Special
Order AC-011983, dated 16 Jul 80 and a letter explaining his
position.
The applicants complete submission, with attachments, is at
Exhibit A.
STATEMENT OF FACTS:
The applicant initially entered the Regular Air Force on 17 Oct
68.
On 23 Feb 76, the Physical Evaluation Board (PEB) found the
applicants medical condition unfit for military service.
On 11 Mar 76, the Secretary of the Air Force approved the
recommendation of the PEB and placed the applicant on the
Temporary Disability Retired List, effective 1 Apr 76.
On 31 Mar 76, the applicant was furnished an Honorable discharge
and credited with 7 years, 5 months, and 14 days of active
service.
On 23 Jun 80, the applicant waived his right to meet the Formal
PEB.
On 30 Jun 80, the PEB provided their recommendations to the
applicant.
On 7 Jul 80, the applicant concurred with the PEB recommendation
and signed AF Form 188, Statement Relative to Appointment or
Enlistment After Removal from TDRL, in which he checked Do not
desire reenlistment in the regular Air Force.
On 15 Jul 80, the applicant was removed from TDRL and
discharged. His case was reviewed and it was determined that he
was physically fit for the performance of active military
service.
The remaining relevant facts pertaining to this application are
contained in the memorandum prepared by the Air Force office of
primary responsibility (OPR), which is attached at Exhibit C.
AIR FORCE EVALUATION:
AFPC/DPFD recommends denial indicating there is no evidence of
an error or an injustice.
The Department of Defense (DoD) and DVA disability evaluation
systems operate under separate laws. Under Title 10, USC,
Physical Evaluation Boards must determine if an applicants
condition renders them unfit for continued military service
relating to their office, grade, rank or rating. The fact that
a person may have a medical condition does not mean that the
condition is necessarily 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 board renders a finding of unfit, the law
provides appropriate compensation due to the premature
termination of their career. Further, it must be noted the
United States Air Force disability boards must rate disabilities
based on the members condition at the time of the evaluation;
in essence a snapshot of their condition at that 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 any service-
connected condition based upon future employability or
reevaluate based on changed in the severity of a condition.
A complete copy of the AFPC/DPFD evaluation is at Exhibit C.
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
The applicant refutes the comments and recommendation of
AFPC/DPFD. For over four years he had to live with very bad and
not so bad periods of sarcoidosis episodes.
On 14 Jan 14, the DVA evaluated his health and concluded that
his service connected sarcoidosis, pulmonary with hepatic
involvement was still at 30% and that his compensation payment
would continue unchanged. The DVA assumed that he was getting
compensation when in fact he was not. When he informed DVA that
he was not receiving any type of compensation, an inquiry into
the matter was started. The result of the inquiry stated that
he did not file VA Form 21-826, Notice to a Retired Veteran of
his Right of Election to Receive Disability Compensation, within
one year after his discharge. He does not remember receiving
this form and if he had received it, he would not have filed it
because he thought he was free from sarcoidosis. He has since
filed a VA Form 21-651, Election of Compensation In Lieu of
Retired Pay or Waiver of Retired Pay to Secure Compensation from
the Department of Veterans Affairs, and they have started paying
him 30% disability pay as of 1 Feb 2014.
Regardless of all of that, he proudly served his country for
over 7 years and while doing a tour in South East Asia
contracted sarcoidosis. He feels he should receive all medical
retirement compensation that was due from 27 Jun 80 to 1 Feb 14.
He voluntary did his part for his country and now it is time for
his country to take care of him fairly.
FINDINGS AND CONCLUSIONS OF THE BOARD:
After careful consideration of the applicants 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. 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 applicants 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-2014-03014 in Executive Session on 2 Jun 15 under the
provisions of AFI 36-2603:
, Panel Chair
, Member
, Member
The following documentary evidence pertaining AFBCMR Docket
Number BC-2014-03014 was considered:
Exhibit A. DD Form 149, dated 18 Jul 14, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Memorandum, AFPC/DPFD, dated 18 Aug 14.
Exhibit D. Letter, SAF/MRBR, dated 30 Jan 15.
Exhibit E. Applicants Letter, dated 11 Feb 15.
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