RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2009-00019 COUNSEL: HEARING DESIRED: YES _________________________________________________________________ APPLICANT REQUESTS THAT: 1. She be permanently retired with a 60 percent disability rating. 2. She receive back pay and allowances effective her retirment date. _________________________________________________________________ APPLICANT CONTENDS THAT: In a four page supplemental statement, the applicant’s attorney makes the following key contentions: 1. In 1991, she was diagnosed and treated for papillary adenocarcinoma of the thyroid gland. She had a relapse of the papillary thyroid cancer in Apr 05. On 7 Jun 07, a line of duty (LOD) determination was made and it was determined “in the line of duty.” 2. On 12 August 2008, AFRC/A1BB reviewed and recommended the applicant’s request to be kept on active duty while she was being evaluated by the disability evaluation system (DES) be approved; the AFBCMR approved her request. 3. She met a Formal Physical Evaluation Board (FPEB) which awarded her a 60 percent disability rating and recommended her to be permanently retired for recurrent thyroid papillary carcinoma, status post tyroidectomy/radiation, with residuals of mood disorder secondary to medical condition, chronic fatigue and weakness, and eptophoria. 4. Subsequently, she was denied placement on the PDRL with 60 percent disability because her high year tenure (HYT - Feb 08) and mandatory separation date (MSD - Apr 08) were coming up. AFPC does not acknowledge that there was an MSD issue; therefore, the applicant does not address this issue. However, AFPC acknowledges there was a HYT issue that would have caused a problem since it was within one year of when her medical conditions manifested in 2007. The aforementioned statement is factually inaccurate given that the FPEB said the applicant had been on medical hold since Sep 06 and was unfit for duty. Note: her HYT was actually Jul 08 and not Feb 08 as reported by AFPC. 5. She had not performed duty in her Air Force Specialty Code (AFSC) for over three year due to being physically unable to work in that field. 6. The presumption of fitness does not apply to her because the presumption was overcome by deterioration of her chronic condition and her inability to perform assigned duties befitting her grade, rank, or rating. 7. For further detailed information concerning the applicant’s contentions see her attorney’s supplemental statement attached to her original request. Her complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: Applicant enlisted in the Air Force Reserve (AFR) on 28 Jul 75. She was progressively promoted to the grade of chief master sergeant (E-9), having assumed that grade effective and with a date of rank of 1 Sep 03. On 16 Jul 08, an Informal Physical Evaluation Board (IPEB) convened and recommended she be permanently retired with a disability rating of 30 percent for mood disorder due to her medical condition. The applicant disagreed with the findings of the IPEB and appeared before a FPEB on 14 Aug 08, and was found unfit for duty for recurrent thyroid papillary carcinoma, status post tyroidectomy/radiation, with residuals of mood disorder secondary to medical condition, chronic fatigue and weakness, and eptophoria. The FPEB recommended her for permanent retirement with a 60 percent disability rating. Since the applicant was assigned to the Disability Branch within the past two years of her DES processing, her case was forwarded to the Air Force Personnel Council (SAF/MRBP) for their review and adjudication for presumption of fitness IAW the governing AFI. SAF/MRBP determined the applicant’s conditions were not incurred during the presumptive period; therefore, they returned her to duty for the purpose of processing her reserve retirement and medical hold termination. Applicant was discharged from the AFR on 1 Nov 08 after serving 33 years, 3 months, and 4 days of satisfactory service. She is currently awaiting Reserve retired pay at age of 60. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSD recommends denial. DPSD states the applicant was appropriately processed through the DES and the preponderance of evidence reveals there was no error or injustice that occurred during the processing. The DPSD complete evaluation is at Exhibit B. The BCMR Medical Consultant recommends approval. The Medical Consultant opines that the preponderance of evidence establishes that the applicant was not performing duties befitting of her grade, rank, or rating before entering the presumptive period. He notes that not only did she have two reoccurrences of her cancer; she also developed a secondary mood disorder which he believes would have placed an additional burden on her and her unit for retention purposes. Therefore, he agrees with the FPEB and recommends restoring the recommended findings which consisted of permanently retiring the applicant with a 60 percent disability rating. The BCMR Medical Consultant’s complete evaluation is at Exhibit E. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant’s attorney responded by stating they agree with the opinion of the BCMR Medical Consultant. Her attorney’s response is at Exhibit F. _________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 3. Sufficient relevant evidence has been presented to demonstrate the existence of error or injustice warranting corrective action. Noting the differing opinions between the Air Force office of primary responsibility and the AFBCMR Medical Consultant regarding the applicant’s request for a medical retirement, we are inclined to agree with the AFBCMR Medical Consultant’s recommendation. In this regard, it appears if not for the applicant’s reported HYT date and presumption of fitness determination, she would have been found unfit, as determined by previous PEBs, and would have been medically retired. Therefore, we agree that reasonable doubt has been established and the restoration of the decision rendered by the FPEB be upheld. Accordingly, we recommend her records be corrected to the extent indicated below. 4. 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 RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that: a. On 14 August 2008, she was found unfit to perform the duties of her office, rank, grade, or rating by reason of physical disability, incurred while she was entitled to receive basic pay; that the diagnosis in her case was recurring thyroid papillary carcinoma, status post throidectomy/radiation, with residuals of mood disorder secondary to medical condition, chronic fatigue and weakness, and eptohoria, VASRD codes 9435, 6354, and 6025, rated at a total of 55%; the compensable percentage was 60%; the degree of impairment was permanent; the disability was not due to intentional misconduct or willful neglect; the disability was not incurred during a period of unauthorized absence; and the disability was not received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war. b. She declined coverage under the Survivor Benefit Plan (SBP) based on full retired pay. c. On 15 August 2008, she was retired by reason of physical disability under the provisions of AFI 36-3212, rather than retired awaiting Retired pay at age 60. _________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2009-00019 in Executive Session on 29 Sep 09, under the provisions of AFI 36-2603: , Panel Chair , Member , Member All members voted to correct the records, as recommended. The following documentary evidence for Docket Number BC-2009-00019 was considered: Exhibit A. DD Form 149, dated 5 Jan 09, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSD, dated 10 Feb 09. Exhibit D. Letter, SAF/MRBR, dated 27 Feb 09. Exhibit E. Letter, BCMR Medical Consultant, dated 29 Jun 09. Exhibit F. Letter, AFBCMR, dated 16 Sep 09. Exhibit G. Letter, Counsel, dated 17 Sep 09. Panel Chair