RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2009-00001 COUNSEL: HEARING DESIRED: YES _________________________________________________________________ APPLICANT REQUESTS THAT: 1. He be retired for length of service with an effective date of 15 Feb 99 versus receiving a permanent disability retirement. 2. As an alternative, he be retired under Secretarial Temporary Early Retirement Authority (TERA) with an effective date of 15 Apr 95. By amendment at Exhibit F, applicant requests a date be rendered in which he would qualify under TERA. _________________________________________________________________ APPLICANT CONTENDS THAT: In a seven page memorandum (with attachments), the applicant’s counsel makes the following key contentions: 1. The applicant was cleared for world-wide deployment without restriction on 20 Apr 92; there was no change in his physical condition when he met the Informal Physical Evaluation Board (IPEB) in 1993. 2. At the time the applicant retired he was fit for duty; however, he was not counseled on his rights prior to accepting the findings of the IPEB. By accepting the findings of the IPEB without counsel he was not afforded the opportunity to finish his Air Force career and retire with 20 years of service. 3. He suffered from a mental disability which interfered with his ability to weigh his options or at least explore his rights to challenge the findings of the IPEB; thus, making his decision to accept the findings of the IPEB involuntary. He was under duress when he accepted the findings. 4. The three year filing deadline should be waived in the interest of justice and due to the applicant not being in the right state of mind until 2008, after finally being properly diagnosed and treated for his mental disability. 5. He does not dispute having physical disabilities; however, he was able to perform his duties and responsibilities for the grade and office he was assigned. 6. On 11 Jun 93, in a Medical Evaluation Board (MEB) examination, the applicant reported he felt both his knees were slowly getting worse; however, he was still able to perform his job as there were no physical activities required. Shortly thereafter, the Department of Veterans Affairs (DVA) evaluated his medical condition and determined the x-rays were normal, and there were no clinical abnormalities of either knee except for crepitus and tenderness to pressure on the patella. 7. The Physical Evaluation Board Liaison Officer (PEBLO) did not counsel the applicant on his right to request a Formal PEB (FPEB). Had he requested an FPEB he would have had the opportunity to appear before the board with an appointed military counsel or counsel of his choice. 8. Further specific details can be found in Exhibit A. In a three page personal statement, the applicant makes the following key contentions: 1. He did not become aware of his rights regarding the MEB process until early 2008. The DVA determined he was unemployable in Sep 07 with a permanent status rating for his medical condition of bipolar disorder with major depression. He received an overall 70 percent disability rating of which 50 percent is rated for his bipolar disorder alone. He feels this is noteworthy due to his mental health at the time of the PEB in 1993. 2. He believed he would not meet another PEB due to being placed on a permanent profile for his knees with a stipulation that he be evaluated annually to ensure his medical condition had not worsened. He believes his knee problems did not get worse since the first PEB/MEB in 1989. 3. Since he was world-wide qualified up until as late as Feb 93 and performing all duties as assigned, he does not understand why the PEB/MEB convened since there was absolutely no change in the condition of his knees. He would have continued in the Air Force had it not been for receiving a medical retirement. 4. In Nov 04, he was removed from his job due to his psychiatric condition which he believes is the direct result of his bipolar disorder. 5. Further specific details can be found in Exhibit A. In support of his submission, applicant provides a copy of his counsel’s memorandum, a copy of his personal statement, a copy of excerpts from his medical records (including a copy of his PEB/MEB documentation), a copy of an email, and a copy of his Enlisted Performance Reports (EPRs). His complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant enlisted in the Regular Air Force on 13 Feb 79. He was progressively promoted to the grade of technical sergeant, having assumed that grade effective and with a date of rank of 1 Aug 91. An MEB convened on 29 Mar 89 and returned the applicant to duty after evaluating him for bilateral patellfemoral syndrome. On 18 Jun 93, the applicant was placed on 4T physical profile for: 1) severe chronic progressive chrondromalacia patella/patella femoral syndrome (there had been no improvement in his condition in eight years and his physician doubted there would be any significant improvement possible in the future); 2) allergic asthma & rhinitis – diagnosed as mild and well controlled, 3) multinodular goiter which was controlled with synthroid suppression, and 4) history of major depression which was found to be in remission. On 25 Jun 93, he was referred to a PEB for the aforementioned diagnosis and evaluation. An IPEB convened on 16 Jul 93 and recommended he be permanently retired with a 40 percent disability rating for a diagnosis of severe chronic progressive chondromalacia patella/patellow-femoral syndrome. On 2 Aug 93, the applicant agreed with the findings and recommended disposition of the IPEB. The Secretary of the Air Force directed the applicant be retired under the provisions of 10 USC 1201 with an effective date of retirement of 12 Oct 93. He received a permanent disability retirement after serving for 14 years and 8 months on active duty. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSD recommends denial. DPSD states since the applicant concurred with the findings of the IPEB a special order was issued retiring him with a permanent disability effective 12 Oct 93. The fact that a person may have a medical condition does not mean the condition is unfitting for continued military service. To be unfitting, the condition must be such that it alone precludes the member from fulfilling their military duties. DPSD notes the DVA disability evaluation system (DES) is charged by law to pick up where the Air Force leaves off once a member is separated or retired. The DPSD complete evaluation is at Exhibit C. AFPC/DPSOR recommends denial. In a four page evaluation, DPSOR provides excerpts of parts of the law that discuss the definition of certain Acts and their rationale on how the applicant does not qualify for consideration under them. DPSOR states the applicant’s request is not timely and he does not provide any justification for the Air Force to make a decision contrary to law. The applicant was not returned to duty; therefore, he was not allowed to reach 20 years of active duty in order to be eligible for a length of service retirement. Also, under provisions of 10 USC 8914, members were subject to possible recall to active duty under 10 USC 688 when retiring under 10 USC 8914. As such, because he was found unfit he was no longer world-wide qualified. The DPSOR complete advisory is at Exhibit D. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: In a five page rebuttal, the applicant’s counsel states the USAF Physical Disability Division’s advisory opinion is not accurate. The advisory is not a valid evaluation of his condition since it was made four years prior to the findings of the IPEB and refers to the applicant as not being able to walk more than one mile and unable to do any impact activity at all. In fact, the applicant was able to continue to perform his duties and responsibilities as necessary as there were no physical activities required. The advisory fails to acknowledge his superior duty performance as reflected in his evaluations. The advisory states the applicant had full range of motion that clearly shows his condition was not unfitting. The applicant is not contending that he signed in the block accepting the findings from the IPEB; however, he asserts he suffered from a mental condition and was not properly counseled IAW the governing regulations, therefore, his decision was made under duress. The USAF Directorate of Personnel Services, Retirement Programs and Policy Section, advisory focuses on the alternative relief requested. As such, if the applicant was inaccurately found unfit and wrongly medically retired he should have been considered eligible for a 20 year active duty retirement as he would have reenlisted and completed the proper length of service. In the rebuttal, attention is brought to the TERA and how the applicant would qualify for TERA. It also mentions, had the applicant been allowed to complete 20 years of service he would have been competitive for promotion and would have retired for length of service. The applicant’s counsel cites that a key error in the advisory is that it assumes the AFBCMR will not grant relief and believes the applicant was never afforded his rights to a FPEB due to not being properly counseled. Counsel’s complete rebuttal is at Exhibit F. _________________________________________________________________ ADDITIONAL AIR FORCE EVALUATION: The BCMR Medical Consultant recommends denial. The Medical Consultant states that although the Defense Department policies governing fitness determinations at the time of the applicant’s separation indicated that the inability to deploy could be the sole basis for an unfit finding, and although the applicant has indicated that his job did not require mobility or deployment, the BCMR Medical Consultant opines that the Boards acted properly in assessing the applicant’s suitability for retention and long- term value to the Air Force. The decision likely took into account the physical assessment by the applicant’s medical provider who believed the applicant’s medical condition was unlikely to improve in the future. The BCMR Medical Consultant opines that based on the evidence of record, the applicant has not met the burden of proof that an error or injustice occurred that warrants a change in his record to reflect that he was retained on active until he completed 20 years of service rendering him retirement eligible. The BCMR Medical Consultant complete evaluation is at Exhibit G. _________________________________________________________________ APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: A copy of the BCMR Medical Consultant’s evaluation was forwarded to the applicant on 21 Sep 09 for review and comment within 30 days. 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 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 and do not find that it supports a determination that his permanent retirement because of physical disability in 1993 was improper or contrary to the provisions of the governing regulations. Other than his own assertions, the applicant has provided no evidence that would lead us to believe the assessment of his medical condition was based on factors other than accepted medical principles. The evidence of record appears to indicate that the applicant was afforded due process through the disability evaluation system and the applicant has provided no evidence that would lead us to believe otherwsie. We therefore agree with the recommendation of the Air Force offices of primary responsibility and the BCMR Medical Consultant’s detailed comments and adopt their rationale expressed as the basis for our decision. With respect to the applicant’s request to be retired under the TERA, we agree with the opinion and recommendation of the Retirement Programs and Policy Section that since the TERA program was not offered at the time of the applicant’s retirement, he is ineligible for retirement under this program. Therefore, we find no basis to recommend granting the relief sought. 5. 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 issue 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-2009-00001 in Executive Session on 22 Oct 09, under the provisions of AFI 36-2603: , Vice Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 26 Oct 08, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSD, dated 13 Mar 09. Exhibit D. Letter, AFPC/DPSOR, dated 23 Mar 09. Exhibit E. Letter, SAF/MRBR, dated 3 Jun 09. Exhibit F. Letter, Applicant’s Counsel, dated 1 Jul 09. Exhibit G. Letter, AFBCMR Medical Consultant, dated 17 Sep 09. Exhibit H. Letter, SAF/MRBR, dated 21 Sep 09. Vice Chair