RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2009-00162 COUNSEL: NONE HEARING DESIRED: YES _________________________________________________________________ APPLICANT REQUESTS THAT: His records be corrected to show that he was medically retired from military service. _________________________________________________________________ APPLICANT CONTENDS THAT: He was discharged for medical reasons and certified to be medically disqualified for world-wide duty under the provisions of AFR 160-43, Medical Examination and Medical Standards, by reason of chronic pain, instability, limited range of motion and strength of his left shoulder. His medical condition and reason for discharge has greatly limited his ability to function and perform daily without extreme pain. In support of the application, the applicant submits his Department of Veterans Affairs Disability (DVA) Rating Decision, and a copy of the Summarized Record of Proceedings from his Administrative Discharge Board (ADB). The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant enlisted in the Regular Air Force on 26 February 1973 and was progressively promoted to the rank of sergeant. On 13 December 1976, the applicant was referred to an orthopedic surgeon for an assessment of his left shoulder. The applicant was given a diagnosis of scapulothoracic derangement and treated with carbocaine. On 24 December 1976, the DVA granted a service-connected disability rating of 0 percent for his shoulder ailment; however, on 14 May 1979, that rating was increased to 10 percent. On 23 December 1976, he was honorably discharged from active duty after serving 3 years, 9 months and 28 days and transferred into the Air Force Reserve. On 8 April 1978, during a Reserve enlistment physical examination, as documented on a Standard Form 88, Report of Medical Examination, comments were made the applicant demonstrated instability of the left shoulder and was not world- wide qualified. In addition, a medical entry on Standard Form 600, Chronological Record of Medical Care, read "injured left superior scapular area 1975 in Thailand - struck by refrigerator; treated and follow-up by the DVA. On 31 May 1978, AFRC/SG notified the applicant that he was disqualified for further military service by reason of chronic pain, instability, with limited range of motion and strength of the left shoulder. On 12 October 1978, an Administrative Discharge Board determined the applicant should be discharged under the provisions of AFR 35-41, Separation Procedures for USAFR Members, because he was permanently medically disqualified for service in the Air Force Reserve. On 25 February 1979, the applicant was honorably discharged from the Air Force Reserve. The remaining relevant facts pertaining to this application, extracted from the applicant’s military records, are contained in the letter prepared by the BCMR Medical Consultant at Exhibit E. _________________________________________________________________ AIR FORCE EVALUATION: AFRC/SG recommends denial of the applicant's request and states that he was deemed medically disqualified for world-wide active military service due to chronic pain in his shoulder. However, since they have no authority to convene a physical evaluation board, they are unable to provide a recommendation on his request for a medical retirement 30 years after his discharge. The complete AFRC/SG evaluation is at Exhibit C. AFRC/A1K recommends denial of the applicant's request and concurs with the AFRC/SG recommendation. The complete AFRC/A1K evaluation is at Exhibit D. The BCMR Medical Consultant recommends denial of the applicant's request. The applicant was discharged as a result of an Administrative Discharge Board action which found him medically disqualified for military service. Air Force Regulation (AFR) 35-41, Volume Ill, Section B, Paragraph 6-1 3, Administrative Discharge Board for Physical Disqualifications, reads: "An administrative discharge board convened in physical disqualification cases is not a physical evaluation board, nor is it a board of inquiry; thus, the board is not qualified or authorized to make medical determinations. The functions and duties of the board are limited to making findings and recommendations concerning whether a medical determination of disqualification has been made by the appropriate surgeon (as in a Major Command or Headquarters) and is evidenced in the manner prescribed by AFR 160-43." Further, that "the board's function is only to insure that such evidence has been considered by the appropriate surgeon, as designated in AFR 160-43, in making the determination of qualification or disqualification for worldwide duty. Under AFR 160-43, Chapter 3, Medical Evaluation for Continued Military Service, sets forth medical conditions that normally preclude continued military service and which will result in Medical Evaluation Board (MEB) processing under AFRs 35-4 and 168-4 (in effect at the time of the applicant's separation). Additionally, under AFR 35-41, Volume Ill, Section F, Physical Disqualification, paragraph 5-31, "A member who is medically disqualified for worldwide duty under the provisions of AFR 160-43 will be separated." Further, that "airmen who fail to apply for transfer to the Retired Reserve are discharged under this section if: (a) Report of medical examination and/or other documents as required have been certified by the appropriate surgeon as medically disqualified for worldwide duty, and (b) [the member] is not qualified for disability separation under provisions of AFR 35-4." The applicant asks that his discharge be changed to a "Title 61" (Title 10, Chapter 61) medical retirement." Rendering the benefit of doubt the applicant's shoulder ailment was service-incurred and did not involve misconduct or an absence without official leave, the Medical Consultant offers the following assessment and likely outcome of the applicant's case. Based upon the clinical assessment of the applicant's shoulder, at or about the time of discharge, to include his demonstrated strength, range of motion, the absence of shoulder instability, and normal X-ray studies, notwithstanding the palpable crepitus, or clicking, in the region of the scapula, the BCMR Medical Consultant opines that the applicant's clinical condition did not rise (would not have risen) to the threshold, or severity level, to warrant the minimum 30 percent rating required to qualify for the medical retirement he desires. The applicant and the Board may also review the attached rating guide-lines, under the Veterans Administrative Schedule for Rating Disabilities (VASRD) code (5010) utilized by the DVA in rating the applicant's shoulder condition and foot ailment following his discharge as a point of reference. The VASRD code utilized indicates (likely by analogy) the existence of a diagnosis closely related to a post-traumatic degenerative arthritis and directs the rating official to rate the condition under degenerative arthritis (which carries a maximum rating of 20 percent). In this case, the applicant's medical condition was initially given a 0 percent rating, which was later increased to a 10 percent rating. Additionally, even when considering use of another classification of shoulder impairment that's based upon actual shoulder function (strength and motion), beginning under VASRD code 5300 series, the applicant's documented range of motion and strength, again, does not reach the threshold for retirement eligibility. There was also no evidence of a neurological basis for the applicant's shoulder impairment, as in a cervical radiculopathy; thus, ruling-out the use of the 8500 VASRD code series to depict his In conclusion, the applicant and the Board are reminded that, under Title 10, United States Code (USC), disability rating determinations made by the Military Departments are based upon those conditions that are the cause for career termination; and then are rated only to the degree of severity present at the time of separation. The applicant was found disqualified for military service, by an Administrative Discharge Board only for his shoulder condition after completion of an initial term of enlistment. The applicant's case was not referred through the Military Disability Evaluation System (MDES). Based upon the available evidence of record, the Medical Consultant opines, that if processed through the MDES (under AFRs 160-43 and 35-4), the applicant more likely than not would have been found unfit for further military service due to his shoulder condition, but would have only been given severance pay with a disability rating no greater than l0 percent, based upon the objective physical findings present at the time. Whereas, the DVA operating under a different set of laws (Title 38, USC), is authorized to offer compensation for any medical condition determined to be service connected, without regard to its impact upon a service member's retainability or ability to perform the mission. The DVA is also empowered to periodically re-evaluate and adjust any previous disability rating determinations, as the degree of severity or level of impairment resulting from a given medical condition may vary over the lifetime of the veteran. Therefore, the Medical Consultant opines the applicant has not met the burden of proof of an error or injustice that justifies a change in the record to reflect the medical retirement that he desires. The complete BCMR Medical Consultant evaluation is at Exhibit E. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluation were forwarded to the applicant on 20 March and 4 September 2009 for review and comment within 30 days. As of this date, this office has received no 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 an error or an injustice. We took notice of the applicant's complete submission in judging the merits of the case. After reviewing the evidence of record, we are not persuaded that the applicant’s records are in error or that he has been the victim of an injustice. Therefore, we agree with the opinion and recommendation of the BCMR Medical Consultant and adopt his rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice. Therefore, we find no compelling basis to recommend granting the relief sought. 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 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 BC-2009- 00162 in Executive Session on 30 September 2009, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 14 Jan 09, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFRC/SG, dated 3 Mar 09. Exhibit D. Letter, AFRC/A1K, dated 17 Mar 09. Exhibit E. Letter, BCMR Med Consultant, dated 24 Aug 09. Exhibit F. Letter, SAF/MRBR, dated 20 Mar 09. Exhibit G. Letter, AFBCMR, dated 4 Sep 09.