Is Retirement status possible after medical discharge

ROMAD

ROMAD

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Just wanted to get some feedback from the group on my situation. I was MED Boarded out of the AF in 1993, placed on TDRL, and ultimately Medically Separated in 1995 with Severance at 10%. My understanding at the time was The Air Force used the VA Disability Rating standards as a general guide and did not always use the exact ratings. Based on the VA Guide I should have been 50%. I applied for VA Disability and was rated at 30%. My MEB documents all show my symptoms at the level required for the higher rating, but it did not happen. So I ended up with the Air Force Special Order advising me I was being Discharged with a Physical Disability with 12 years 11 months and 25 days. So here is my status I have been getting VA Disablilty at the 50% rate, no Tricare, and no Medical retirement. Is this something I can get corrected? I have all my AF Documents from the PEB showing the disability is permanent, so is this an uphill battle, or do I have a leg to stand on. Thanks in advance
 
You can apply for a correction to military records.

Ron
 
Did the DoD do their own review with a doc or did they just pull your medical records? If it was an exam you would need a copy of that to see what supported the reduction the VA rating is not binding on the AirForce. The VA rating MAY help you if it was done within six months of the DoD exam if it came later than that it's a problem you didnt specify when you initially applied for the VA benefits and when the increase happened. The DoD will not review evidence pass 1995.
 
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Yea I looked thru my records from the Board and they had a Typo it is pretty clear that they combined 2 disabilities in the diagnosis field and the 2nd diagnosis has the word mild in it, but it was not what i went to the MEB for. I submitted a request to correct it with copies of the records showing the error and how it seems it happened so we will see if they see it as an injustice since it is affecting my VA disability... and this happened in July 1995.
 
Well I submitted to the board and it was deemed timely but denied. Seems they did not address the typo error
I have reached out to NVLSP for assistance. Especially since they acknowledge in the Air Force Evaluation
AIR FORCE EVALUATION
The IPEBIFPEB rating of 10% in 1995 was likely consistent with how they rated similar cases back then. Based on how cases are adjudicated today, the
board believes he would have been rated at 30%, not 50%.
FINDINGS AND CONCLUSION
1. The application was timely filed.
2. The applicant exhausted all available non-judicial relief before applying to the Board.
3. After reviewing all Exhibits, the Board concludes the applicant is not the victim of an error
or injustice. The Board concurs with the rationale and recommendation of APPCIDPFDC and
finds a preponderance of the evidence does not substantiate the applicant's contentions.
Therefore, the Board finds the application untimely and recommends against correcting the
applicant's records.

Nothing is ever quick :)
 
Just curious but did you submit on your own or did you use a lawyer for the first submission? One thing with the BCMR is they operate under the assumption that the military did not do anything wrong. The burden of proof is on you to show the error and injustice.

Also, for anyone else reading this just to clarify on statute of limitations and post separation appeal options: 1. BCMR which has a 3 year statute of limitations and 2. Federal court of claims which has a 6 year statute of limitations. if you were separated in 1993 with a TDLR review in 1995, there is not way that they deemed it timely. (I'm guessing that's a typo). What they usually do in that case, is deem it untimely but decide to hear the case in the interest of justice. The BCMR has the option to waive the 3 year statute of limitations and they regularly do. The court of federal claims will never waive their statute of limitations. This doesn't necessarily help you but, I just want to point out to others what the timelines are.

It's also wise to seek legal counsel. If NVLSP won't take the case, it might be worth it to at least chat with another paid attorney to see if they think there are any other options and what their rates are. Due to how old this case is, you're only option at this point is the BCMR.
 
robins said:
Just curious but did you submit on your own or did you use a lawyer for the first submission? One thing with the BCMR is they operate under the assumption that the military did not do anything wrong. The burden of proof is on you to show the error and injustice.

Also, for anyone else reading this just to clarify on statute of limitations and post separation appeal options: 1. BCMR which has a 3 year statute of limitations and 2. Federal court of claims which has a 6 year statute of limitations. if you were separated in 1993 with a TDLR review in 1995, there is not way that they deemed it timely. (I'm guessing that's a typo). What they usually do in that case, is deem it untimely but decide to hear the case in the interest of justice. The BCMR has the option to waive the 3 year statute of limitations and they regularly do. The court of federal claims will never waive their statute of limitations. This doesn't necessarily help you but, I just want to point out to others what the timelines are.

It's also wise to seek legal counsel. If NVLSP won't take the case, it might be worth it to at least chat with another paid attorney to see if they think there are any other options and what their rates are. Due to how old this case is, you're only option at this point is the BCMR.
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I filed my first one myself. If you do not discover the error until after the 3 years it can still be considered. I did not discover the error until I applied for an upgrade of my VA disability in 2020 and the VA made reference to the error from the PEB. In the BCMR response they stated the way it was decided was more than likely how it was done at the time but if it were rated today it would have been 30%. See Below
The IPEBIFPEB rating of 10% in 1995 was likely consistent
with how they rated similar cases back then. Based on how cases are adjudicated today, the
board believes he would have been rated at 30%, not 50%. This would seem to be consistent
with the recent VA review of his case dated 11 Jan 20.
 
This is where someone familiar with the process and good legal counsel can help because you have to prove that they made an error in 1995, not that if they adjudicated it today, it would be 30% or higher. They are very much about the process and you have to clearly show an error because the military does not like to admit they are wrong.
 
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