RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2009-00798 COUNSEL: HEARING DESIRED: YES _________________________________________________________________ APPLICANT REQUESTS THAT: His records be corrected to reflect that he received a medical discharge or medical retirement, rather than an administrative discharge based on minor disciplinary infractions. _________________________________________________________________ THE APPLICANT CONTENDS THAT: He should have been medically retired from the Air Force and not discharged. He had a spinal cord injury and multiple sclerosis (MS) while in the Air Force and the Department of Veterans Affairs (DVA) rated him 100 percent disabled due to these conditions. In support of the appeal, the applicant submits copies of a corporate award and rating data sheet, DD Form 293, Application for the Review of Discharge from the Armed Forces of the United States, and a radiology report. The applicant’s complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant enlisted in the Regular Air Force on 5 Jan 95, and was progressively promoted to the grade of airman first class. On 17 Jun 97, he was notified of his commander's intent to recommend him for a general (under honorable conditions) discharge for minor disciplinary infractions. The commander stated the following reasons for the proposed discharge: a. On 2 Mar 96, the applicant received DD Form 1408, Armed Forces Traffic Ticket, for being stopped by law enforcement for driving with expired temporary license plates. b. On 28 Oct 96, he received a Letter of Counseling, for writing two insufficient fund checks on his checking account. c. On 16 Nov 96, the applicant received a Letter of Reprimand (LOR), for failing to report as scheduled for annual home station training. d. On 21 Mar 97, he received a LOR for being apprehended by law enforcement for wrongful appropriation of another dormitory resident’s VCR. e. On 24 Mar 97, he received a LOR, in addition to an unfavorable information file, on 28 Mar 97, for committing a dormitory violation by allowing his cousin to remain in his dormitory room while he was deployed to the missile field. f. On 2 Apr 97, he received a LOR, for failure to report for a pre-departure briefing prior to assuming his post at the India Missile Alert Facility. g. On 2 May 97, he received a LOR, for failure to go to a scheduled appointment. h. On 15 May 97, he received a LOR, for failing to maintain sufficient funds in his checking accounts. He was advised of his rights in this matter and after consulting with counsel submitted a statement in his own behalf. The discharge case was reviewed by the base legal office and they recommended the applicant be discharged with a general (under honorable conditions) discharge without probation and rehabilitation. The discharge authority approved the separation and directed the applicant be discharged with a general (under honorable conditions) discharge. On 27 Jun 97, under the provisions of AFI 36-3208, Administrative Separation of Airmen, he was discharged for Misconduct. He received a general (under honorable conditions) discharge characterization and a Reentry (RE) Code of 2B, “Separated with a General or UOTHC Discharge,” which bars immediate reenlistment. He completed a total of 2 years, 5 months, and 22 days of active service. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSOS recommends denial of the applicant’s request for a change to his discharge characterization. AFPC/DPSOS indicates the applicant was counseled on numerous occasions for his behavior and afforded an opportunity to overcome his deficiencies. Despite attempts to counsel the applicant, he continued to fall below normal Air Force standards. AFPC/DPSOS states the discharge case does reveal that the applicant complained of back pain as a result of an injury he received in Oct 96. In his response to the proposed discharge, he claimed that he could not meet Air Force standards because he injured his back in Oct 96 and has been experiencing intense pain. The base legal office stated the applicant’s claim does not justify an honorable discharge because there is no causal connection between back pain and failing to maintain sufficient funds, wrongful appropriation, or dorm violations. According to AFPC/DPSOS, there was a sufficient basis for the applicant’s discharge from the Air Force. The discharge record does reveal he received a separation medical evaluation, dated 24 Jun 97, and he was not referred for further evaluation and was apparently medically cleared for separation. AFPC/DPSOS defers to the appropriate medical authorities for comment as to whether further evaluation was appropriate at the time of the applicant’s discharge. AFPC/DPSOS states that based on the documentation on file in the master personnel records, the discharge, to include his characterization of service, was consistent with the procedural and substantive requirements of the discharge instruction and was within the discretion of the discharge authority. He did not provide any evidence of an error or injustice that occurred in the discharge processing. The complete AFPC/DPSOS evaluation is at Exhibit C. The BCMR Medical Consultant recommends denial of the applicant’s request to change his reason for discharge to a medical retirement. The Medical Consultant indicates that he is happy the applicant is receiving proper care and support for his MS. Without copies of the applicant’s medical records, he cannot comment on the adequacy of evaluations or treatment received during military service. However, had the applicant been diagnosed with MS prior to separation, received a Medical Evaluation Board (MEB), and was found unfit to serve by a Physical Evaluation Board (PEB), he would have still been confronted concurrently with the approved administrative discharge and the medical discharge action. Such cases are resolved by the Secretary of the Air Force Personnel Council (SAFPC) in a process referred to as a “dual action” review and analysis. The task of the SAFPC would be to select which reason for separation and service characterization is appropriate. In conducting such an analysis, a search for any causal or mitigating relationship between the service member’s act of misconduct and the unfitting medical condition and its relationship between the service member’s acts of misconduct and the unfitting medical conditions is undertaken. SAFPC may also consider the comparative gravity of the disciplinary infractions and the identified medical condition in making its recommended Secretarial action. There are medical conditions that are known to affect human behavior and cognitive functioning, however, the Medical Consultant found insufficient evidence to support a nexus between the applicant’s various acts of misconduct and a medical ailment, particularly at the time he committed his offenses. The Medical Consultant acknowledges the opinions put forth are not a substitute for an MEB, PEB, or SAFPC decisional body. Nonetheless, he opines that even if the applicant had been diagnosed with MS prior to his separation and his case was referred to SAFPC, he would have been vulnerable for execution of the approved involuntary administrative discharge. Noting the gravity of the applicant’s illness and the comparatively minor disciplinary infractions he committed, the Medical Consultant believes that SAFPC may have agonized to some degree over its decision, but noting that MS earns a minimum disability rating of 30 percent rendering the applicant eligible for a medical retirement. Despite the fact that the applicant was not placed on medical hold or was not diagnosed with MS prior to separation, the Medical Consultant finds the burden of proof of an error or injustice has not been met to warrant a change of the record. The Board retains the authority to upgrade the applicant’s discharge as a matter of clemency. No evidence, other than our knowledge of the applicant’s illness, which is reportedly 100 percent disabled, and the Air Force’s inability to make the diagnosis prior to his discharge are available to bolster this position. The complete BCMR Medical Consultant’s evaluation is at Exhibit D. _________________________________________________________________ APPLICANT’S REVIEW OF AIR FORCE EVALUATION: He submits copies of his medical records and his DVA Rating, which the Medical Consultant did not have to properly review and consider his request to change his discharge to a medical retirement. His medical records reveal that he was on medical profile from all duties due to severe medical injury and sickness due to him falling in Oct 96 until his separation in Jun 97. He was restricted from walking, standing, or lifting. The medical conditions he sustained while on active duty prevented him from serving in the Air Force and affected his ability to work in the civilian sector. As such, his discharge should be changed to a medical retirement. In regard to the administrative infractions, the tags on his vehicle were expired. However, his home state of Pennsylvania allows active duty military members during wartime to drive vehicles with expired tags. Further, the other administrative infractions are related to his medical condition that caused mental impairment and prevented him from carrying out his normal duties. As to the VCR, he does not recollect the incident, but is sure that he paid for the damaged VCR and apologized to the owner. He disputes the Medical Consultant’s opinion noting the Medical Consultant did not have access to his medical records and submits his medical records for review. Although the Medical Consultant acknowledges the Air Force did not diagnose him with MS, did not send his case before a MEB, and notes that he would have been eligible for a military retirement at 30 percent due to his MS, the Medical Consultant overlooked his spinal cord injury to which he receives a 70 percent rating from the DVA. He did not state what the Air Force would have rated this condition had he been properly diagnosed. The Medical Consultant also overlooked his mental condition which directly affected his concentration, and for which he is currently rated at 50 percent for depression secondary to MS. His medical records should reveal that he was restricted from any extended walking, standing, or lifting because he was unable to do so. He is not sure why the military doctors did not realize that he was facing the initial attack of MS for the burning eye attack he had, which is a well known initial sign of MS. He understands the process to diagnose MS could take up to two years. His military records indicates that he had difficulty walking, standing, and lifting, and was restricted from these duties by a medical profile, while being prescribed steroids and elavil. His condition while on active duty, warrants that he be retired with a 100 percent disability rating from the Air Force. The applicant’s complete response, with attachments, is at Exhibit F. _________________________________________________________________ ADDITIONAL AIR FORCE EVALUATION: The BCMR Medical Consultant recommends the applicant’s records be changed to reflect that he was retired permanently, by reason of a disability, with a combined disability rating of 40 percent. The BCMR Medical Consultant states that in order for an individual to receive consideration for a medical retirement, first there must be evidence of a medical condition that precluded the performance of military service of a sufficient degree of severity and duration, that it required assessment by a MEB and subsequent referral to a PEB for a determination of the individuals fitness to serve. Personnel referred through such a system, namely the Military Disability Evaluation System (MDES), have usually been issued duty restricting profiles, depicting the ailment and limitations, with a start and end date of the restrictions. First addressing the medical administrative aspects of the applicant’s case, the records reflects that he was issued and re- issued several duty profile documents on a recurring basis, between Nov 96 and the time of his separation. A review of these documents of record reflects that, despite the restrictions imposed to lifting and prolonged standing, the only ones depicting a significant adverse impact “P-4” upon the applicant’s worldwide qualification were issued only on 24 Oct 95, due to dental defects, after which he became dentally re-qualified for worldwide duty on 5 Jan 96 and on 15 Jan 97, due to back strain, with an expiration date of 15 Feb 97, and the ‘P-3” issued in Jun 97. Although the applicant’s physicians entered only “1s” on the majority of profile documents issued or renewed beginning on 21 Nov 96 and ending on 15 Jan 97, the day his first “P-4” profile was issued, from a practical standpoint the Medical Consultant opines the actual written duty restrictions imposed, no standing greater than 30 minutes, then later reduced to no greater than 15 minutes, issued on 20 Dec 96, no walking greater than ¼ mile, and no lifting greater than 10 to 20 pounds would have, more likely than not, precluded worldwide qualification at the time, and thus, were not accurately represented by the “1s” entered in the profile documents. Nonetheless, the military clinical practitioner is challenged with balancing his patient’s response to treatment and conducting periodic follow-up evaluations, with the goal of resolution and maintaining employment to the extent possible, before contemplating MEB referral. For example, there is intervening evidence of optimism, or at least uncertainty, for the applicant’s eventual recovery, as shown by the pattern of month- to-month profiles issuances and renewals, as opposed to a greater uninterrupted period of time, and in the progress note dated 13 Dec 96, reflecting the physician declined renewal of the profile, with the written expectation that the applicant’s back pain will resolve with physical therapy. Addressing the applicant’s disciplinary issues, the Medical Consultant concedes the medications prescribed to the applicant, Elavil at bedtime and muscle relaxants, could have affected his alertness at a given time. Whether these were the direct reason for the applicant’s failure to go to a scheduled appointment, failure to report to a pre-departure briefing, and failure to report as scheduled for annual home station training cannot be definitively or factually determined, particularly retrospectively. The Medical Consultant recommends rendering the benefit of doubt in favor of the applicant in these instances, noting one of the applicant’s physicians offered a statement for the applicant’s commander to this effect. That then leaves the applicant’s four instances of failure to maintain sufficient funds in his checking account, dormitory violation, and wrongful appropriation of a fellow dormitory resident’s VCR. Although central nervous system multiple sclerosis can affect some cognitive reductions, there is, otherwise, no evidence of record of the existence of a cognitive deficit, mood disorder, or inability to distinguish the difference between right and wrong. Consequently, despite the applicant’s ultimately diagnosed MS, the Medical Consultant found no definitive medical mitigation for the latter offenses, one of which could have resulted in an Article 15. Despite the aforementioned analysis, the Medical Consultant opines the applicant’s physicians should have further pursued the extremity paresthesias and possibly should have conducted a brain MRI scan prior to the applicant’s release from military service. Unfortunately, the applicant’s physicians were led down a path of treating what was believed to be a relatively benign musculoskeletal ailment. While missing the applicant’s diagnosis could be considered an error of omission, others could argue the standard of care was met, noting the etiology of his initial presenting complaints of back pain and the fact that the pain was attributed to blunt trauma experienced during his Oct 96 fall down a flight of stairs, to include the initial MRI scan of the lumbar spine which showed no evidence of nerve root or cord impingement. Therefore, the Medical Consultant opines that had the applicant undergone an MEB and was found unfit for MS and/or back pain, he would have still been vulnerable for a decision executing the approved administrative discharge. At the same time, the SAFPC could very well have considered the relative serious nature of the applicant’s illness in comparison to his administrative infractions, and recommended a medical basis for separation. Since, in accordance with the VA Rating Schedule, MS earns a minimum 30 percent disability rating, the applicant would have been medically retired with at least a 30 percent disability rating. Additional consideration would be made for including the applicant’s chronic low back pain in the disability rating computation. Utilizing the VA Rating Schedule, in effect at the time of the applicant’s separation, the Medical Consultant opines that a 20 percent disability rating, under VA Code 5295, in effect at the time, most closely matches the clinical findings of his health care professionals. Since the applicant had no evidence of herniated discs as a cause of his symptoms, then utilizing the VA code for intervertebral disc syndrome, VA Code 5293, in effect at the time, would not have been appropriate. When combining, not adding, the 20 percent rating with the minimum 30 percent rating for MS, VA Code 8018, a 40 percent disability rating would be achieved. The Medical Consultant acknowledges the applicant has since received a separate disability rating award for his lower extremity weakness. However, based upon the clinical findings nearest to the applicant’s date of separation, the Medical Consultant opines the applicant’s lower extremity paresthesias would have been subsumed in the minimum 30 percent disability assigned to his underlying disease. Similarly, there was no evidence of a diagnosable depression at the time of separation and, thus, would not have been considered an unfitting condition. Finally, the Medical Consultant is sensitive to the fact the applicant has since suffered from a progression of his medical condition, to the point of being rated at 100 percent disabled by the DVA. The applicant has also received disability ratings for depression and other associated impairments attributed to his MS. The Medical Consultant concludes that a material error in the applicant’s clinical diagnosis resulted in an injustice, by depriving him of a full review through the MDES and dual action analysis by SAFPC. The complete BCMR Medical Consultant’s evaluation, with attachments, is at Exhibit G. _________________________________________________________________ APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: He disagrees with the Medical Consultant’s recommendation that he be medically retired with a 40 percent disability rating. Although his medical records were not properly noted probably due to the inability of his physicians to diagnose his MS, what is noted was his inability to walk, stand, or lift, which is restricted on all of his medical profiles from Oct 96 until his separation in Jun 97. Further, he suffered with severe eye burning while on active duty, which is noted in his medical records as possible keratitis, but later discovered by the DVA to be optic atrophy secondary to MS, and which he receives a 30 percent disability rating. Despite his depression not being properly treated or diagnosed while on active duty, it was noted that he was prescribed an anti-depressant (Elavil), and the DVA rated his depression at 50 percent disabling and continues to treat him for this condition secondary to MS. All of the conditions combined, warrants medical retirement from the Air Force with a 100 percent disability rating. The applicant’s complete response, with attachments, is at Exhibit H. _______________________________________________________________ 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. Sufficient relevant evidence has been presented to demonstrate the existence of error or injustice. After a thorough review of the available evidence, we are persuaded that relief is warranted. We note the BCMR Medical Consultant opines that a material error in the applicant’s clinical diagnosis deprived him of a full review through the MDES and a dual-action analysis by SAFPC and recommends he be permanently retired by reason of disability with a combined disability rating of 40 percent. While the applicant disagrees with the 40 percent disability rating, we do not find the applicant’s assertions, the documentation submitted in support of his appeal, to include his rebuttal responses to the additional Air Force evaluations, sufficiently persuasive to override the rationale provided by the BCMR Medical Consultant. Therefore, the applicant has failed to sustain his burden of establishing that any additional relief is warranted. Accordingly, we recommend that his 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 26 Jun 97, he was found unfit to perform the duties of his office, rank, grade, by reason of physical disability, incurred while he was entitled to receive basic pay; that the diagnoses in his case were chronic low back pain (lumbosacral strain), VASRD code 5295; rated at 20 percent; and multiple sclerosis (MS), VASRD code 8018, rated at 30 percent; that the total combined compensable percentage was 40 percent; that the degree of impairment was permanent; that the disability was not due to intentional misconduct or willful neglect; that the disability was not incurred during a period of unauthorized absence; and that 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. On 27 Jun 97, he was released from active duty and was permanently retired by reason of physical disability, with a 40 percent compensable disability rating, effective 28 Jun 97. c. At the time of his retirement, he was not married, had no eligible children, and declined coverage under the Survivor Benefit Plan. d. On 14 Jan 98, he elected child-only coverage under the Survivor Benefit Plan, based on full retired pay. _________________________________________________________________ The following members of the Board considered Docket Number BC- 2009-00798 in Executive Session on 17 Jun 10, under the provisions of AFI 36-2603: , Panel Chair , Member , Member All members voted to correct the record, as recommended. The following documentary evidence was considered under Docket Number BC-2009-00798: Exhibit A. DD Form 149, dated 2 Jun 09, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSOS, dated 26 Oct 09. Exhibit D. Letter, BMCR Medical Consultant, dated 24 Feb 10. Exhibit E. Letter, SAF/MRBR, dated 1 Mar 10. Exhibit F. Letter, Applicant, undated. Exhibit G. Letter, BMCR Medical Consultant, dated 28 Apr 10. Exhibit H. Letter, SAF/MRBR, dated 3 May 10. Exhibit I. Letter, Applicant, undated. Panel Chair