RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-03096 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ THE APPLICANTREQUESTS THAT: 1. His narrative reason for separation of “Physical Standards” and the corresponding Separation Program Designator (SPD) code of “HFT” be changed. 2. His Reentry (RE) code of “2C” (Involuntarily separated with an honorable discharge; or entry level separation without characterization of service) be changed. 3. Any Letters of Reprimand (LORs) related to his fitness assessment (FA) failures be removed. 4. He be medically retired. _______________________________________________________________ THE APPLICANTCONTENDS THAT: His medical condition of “Acromegaly” was the cause of his fitness assessment failures. In support of his appeal, the applicant provides extracts from his military personnel/ medical records, and other supporting documents. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant's commander notified him on 15 Jul 08 that he was recommending him for discharge from the Air Force for Unsatisfactory Performance. During Apr 06 to May 08, the applicant failed to make satisfactory progress in the fitness program: (1) On 11 Apr 06, the applicant failed to make satisfactory progress in the fitness program. The minimum passing score was 70 percent and he scored 60 percent, resulting in a "poor" fitness determination. (2) On 5 Jul 06, the applicant failed to make satisfactory progress in the fitness program. The minimum passing score was 70 percent and he scored 30 percent, resulting in a "poor" fitness determination. (3) On 18 Dec 06, the applicant failed to make satisfactory progress in the fitness program. The minimum passing score was 70 percent and he scored 30 percent, resulting in a "poor" fitness determination. (4) On 21 Mar 07, the applicant failed to make satisfactory progress in the fitness program. The minimum passing score was 70 percent and he scored 40 percent, resulting in a "poor" fitness determination. (5) On 27 Jun 07, the applicant failed to make satisfactory progress in the fitness program. The minimum passing score was 70 percent and he scored 50.9 percent, resulting in a "poor" fitness determination. (6) On 5 Oct 07, the applicant failed to make satisfactory progress in the fitness program. The minimum passing score was 75 percent and he scored 40.65 percent, resulting in a "poor" fitness determination. (7) On 22 Jan 08, the applicant failed to make satisfactory progress in the fitness program. The minimum passing score was 75 percent and he scored 57.20 percent, resulting in a "poor" fitness determination. (8) On 20 Mar 08, the applicant failed to make satisfactory progress in the fitness program. The minimum passing score was 75 percent and he scored 74.88 percent, resulting in a "poor" fitness determination. (9) On 30 May 08, the applicant failed to make satisfactory progress in the fitness program. The minimum passing score was 75 percent and he scored 73.50 percent, resulting in a "poor" fitness determination. The applicant acknowledged receipt of the notification of discharge and was afforded the opportunity to consult with counsel and submit statements in his own behalf. The discharge authority approved the separation and directed an honorable discharge without probation and rehabilitation. The applicant was honorably discharged, on 19 Sep 08, under the provisions of AFI 36-3208, Administrative Separation of Airmen, paragraph 5-26.1, with a narrative reason for separation of Unsatisfactory Performance (Failure to Meet Minimum Fitness Standards), with an RE code of 2C. He was credited with 11 years and 10 days of active duty service. ________________________________________________________________ THE AIR FORCE EVALUATION: AFPC/DPSOS recommends denial of his request to change his narrative reason for separation. They found no evidence of an error or injustice in the processing of the discharge action, nor did the applicant submit any such evidence. Based on the documentation on file in the master personnel records, the discharge to include the narrative reasons for discharge was consistent with the procedural and substantive requirements of the discharge instruction and was within the discretion of the discharge authority. AFI 36-3208, Para 5.26 provides that Airmen who fail to meet minimum standards of fitness for reasons not amounting to disability may be discharged. Paragraph 8.2.6 of AFI 10-248 requires commander to make a discharge/retain recommendation for members who have either failed four fitness assessments (FAs) within 24 months or have a FA score in the "poor" category for a continuous 12 month period. The applicant failed to meet the minimum fitness standards nine times in the past 48 consecutive months. He was made aware of the standards, counseled about the deficiencies, and given ample opportunity to overcome them. The applicant has asked to consider medical conditions he claims have hampered his performance on FAs. His records indicate he has been on medical profile at various times during the past two years. Several of his FAs were modified in keeping with AFI 10- 248 to prevent the medical conditions from unjustly lowering his score. The complete AFPC/DPSOS evaluation is at Exhibit C. AFPC/DPSOA recommends denial of a change to the applicant’s RE code of 2C, stating, in part, the RE code 2C is the appropriate RE code. His RE code 2C is required per AFI 36-2606, Reenlistments in the USAF, chapter 3, based on his involuntary discharge with a honorable character of service. The applicant does not provide proof of an error or injustice in reference to his RE code. On 1 Dec 2011, AFPC/DPSOS validated the applicant's discharge processing and highlighted his nine fitness failures over a two year period. The complete AFPC/DPSOS evaluation is at Exhibit D. AFPC/DPSIMC recommends denial of the removal of the LORs, stating, in part, the commander acted within his authority when deciding to issue/establish an LOR/UIF. Also, the applicant's failure to meet fitness standards administered on 11 Apr 06, 5 Jul 06, 18 Dec 06, 21 Mar 07, 27 Jun 07, 5 Oct 07, 22 Jan 08, 20 Mar 08 and 30 May 08 does not coincide with a medical condition. He was tested on components documented on medical profiles (AF IMT 422) in accordance with Air Force policy. The applicant was issued a LOR on 5 Mar 08 for failure to comply with mandatory documentation and a Commander directed appointment during a certain timeframe. The LOR was drafted but never signed, by the commander or the member. The member acknowledged receipt on 5 Mar 08. The rebuttal was submitted on 7 Mar 08 and the commander made the final decision to uphold the LOR. The complete AFPC/DPSIMC evaluation is at Exhibit E. The BCMR Medical Consultant recommends granting the applicant relief by changing the record to reflect that he was placed on the TDRL with a 30 percent disability rating, effective 19 Sep 08, and that he receive a re-evaluation by a military endocrinologist within 90 days, to determine existence of any residual sequelae of his primary diagnosis of Acromegaly. This should be followed by a re-evaluation of his fitness to serve by the Informal Physical Evaluation Board, with eligibility for subsequent appellate reviews as authorized. The Medical Consultant has reviewed the applicant's case in consideration of whether he received substandard care, whether a physical impairment, such as an undiagnosed Acromegaly, was a direct cause of his poor fitness scores, and whether his chronic lumbar pain, and the exemption of significant portions of his fitness assessments, further prevented him from attaining an appropriate level of fitness. The Consultant could not readily separate the applicant's poor fitness from his existing medical conditions, whether under the unifying diagnosis of Acromegaly, as proposed by an endocrinologist, or through other individual clinical entities, e.g., chronic/recurrent lumbar pain and new onset left lower extremity radicular symptoms; noting the exacerbation of these, as well as his depressed mood, after being returned to duty by the IPEB for Obstructive Sleep Apnea. The Medical Consultant noted the applicant's motivation for retention in an alternative career field and that the profile restrictions imposed due to back pain and depressed mood, indicated consistent improvement up to the point of the decision by the IPEB, notwithstanding the "P4" profile of 2007, likely assigned for Obstructive Sleep Apnea. The Medical Consultant acknowledges the applicant's many allegations, some of which impugn the quality or thoroughness of his medical care and the character of his organizational leadership which, in the opinion of the Consultant, can only be substantiated in a Court of Law or via Inspector General, or like, investigation. It is also only through 20/20 hindsight, with the benefit of a temporal (over a several-year period) series of photographs (of poor copy quality) showing a progressive change in the applicant's body habitués, followed by the discovery of a pituitary tumor on MRI scan approximately two years after discharge, and the medical opinion of a civilian endocrinologist that we find ourselves confronted with a retrospective determination of whether there has been an error or injustice in his discharge. He and his endocrinologist would have the Board establish a direct causal and mitigating relationship between the fitness failures and Acromegaly; albeit diagnosed nearly two years post-service. If accepting the endocrinologist's view that Acromegaly was the established medical reason for the applicant's fitness failures, he might have been issued a waiver for continued service or may have been processed through the Disability Evaluation System (DES), noting that AFI 48-123, Medical Examinations and Standards, Chapter 5, Continued Military Service (Retention Standards), lists Acromegaly among conditions potentially disqualifying for continued service. However, the service evidence does not readily reflect that Acromegaly itself interfered with the applicant's ability to perform the primary military duties of his office, grade, rank, or rating; the basis upon which fitness or unfitness would be determined. Thus, it is conceivable that even if diagnosed with Acromegaly, the applicant may have been returned to duty by a Physical Evaluation Board (PEB), based upon the service clinical evidence of record present at the time. Furthermore, if increased abdominal girth was considered a predominant clinical by-product of the applicant's cryptic Acromegaly and the cause of his poor fitness scores, this factor alone [which is not considered a disability] also would not trigger initiating a medical separation. Nevertheless, the Consultant opines the applicant's command followed established guidelines for managing the fitness program, giving the applicant the opportunity to meet standards prior to initiating a separation action. With respect to the applicant's health care, given the cryptic nature of Acromegaly, which "often remains undetectable for up to 10 years," the Medical Consultant found no significant variance from the standard of care, short of introducing an unprecedented practice of screening all individuals for growth hormone and possibly a brain MRI scan for those who cannot pass their fitness test. The written opinion of the applicant's endocrinologist persuades the Medical Consultant that there has been a possible injustice to apply an administrative reason for release from military service, where a medical condition has been implicated as the underlying or a significant contributory cause of fitness failures. Thus, the Medical Consultant struggles with an appropriate remedy, if any, in the applicant's case. A retrospective analysis of any given medical case risks introduction of a different set of suggested conclusions; particularly when there were alternative choices of actions taken, or not known, at the time of the alleged errant decision- making. Thus, the Medical Consultant opines a plausible and defensible course of action would be to find the applicant physically unfit for military service, place him on the Temporary Disability Retired List (TDRL), with assignment of the minimum disability rating of 30 percent for Acromegaly [which is paid at the 50 percent level while in TDRL status], and to direct a timely re-evaluation by a board-certified endocrinologist for evaluation of any residual clinical sequelae that can be attributed to his primary diagnosis. This action places the applicant back within the military Disability Evaluation System. However, it should be known that placement in TDRL status, by statute, cannot exceed 5 years. The applicant's clock would have started on 19 Sep 08. The applicant's Obstructive Sleep Apnea, depression and chronic lumbar pain should also be acknowledged [on the AF Form 356, Findings and Recommended Disposition of USAF Physical Evaluation Board], but designated as not unfitting at the time of release from active military service. Any administrative adverse actions related to the applicant's fitness failures should be removed from the record, to include the referral Enlisted Performance Report. Addressing the applicant's desire for change in RE-code, presumably to allow his future return to military service, the Board is referred to the following extract from Department of Defense Instruction 6130.03, Medical Standards for Appointment, Enlistment, or Induction in the Military Services, which lists medical conditions that are disqualifying for service entry. A policy statement under the subject of Endocrine and Metabolic Conditions, reads: "Current or history of Acromegaly, including but not limited to gigantism (253.0), or other disorders of pituitary function (253)" [is disqualifying]." The complete BCMR Medical Consultant evaluation, with attachment, is at Exhibit F. ________________________________________________________________ APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 18 Apr 12 for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit G). ________________________________________________________________ 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 warranting partial corrective action. Notwithstanding the recommendations of the Air Force offices of primary responsibility, we are inclined to agree with the analysis of the BCMR Medical Consultant who finds that there may have been a possible injustice to the applicant by applying an administrative reason for release from military service where a medical condition has been implicated as the underlying or a significant contributory cause of fitness failures. As alluded to by the BCMR Medical Consultant, taking a retrospective look at a case can pose certain risks by introducing a different set of suggested conclusions. However, the thorough analysis of the BCMR Medical Consultant has raised doubt as to whether the applicant had an undiagnosed unfitting condition at the time of his discharge. As such, we agree with the Medical Consultant’s recommendation to place the applicant on the TDRL at the minimum disability rating of 30 percent with a timely evaluation by a board certified Endocrinologist. We believe this approach presents the best option for a correct, yet fair and equitable determination in the applicant’s case. We note that since the applicant will be placed on the TDRL retroactive to his date of separation, 19 Sep 08, a final evaluation and decision must be completed no later than 18 Sep 13. Therefore, in the interest of justice, we recommend the applicant’s record be corrected as indicated below. ________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to THE APPLICANT be corrected to show that: a. On 18 September 2008, he was found unfit to perform the duties of his office, rank, grade, or rating by reason of physical disability, incurred while he was entitled to receive basic pay; that the diagnosis in his case was Acromegaly, VASRD code 7908, rated at 30 percent; that the total compensable percentage was 30 percent; that the degree of impairment was temporary; 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 18 September 2008, all unfavorable information associated with his fitness assessment, be, declared void and removed from his records. c. His AF IMT 910, Enlisted Performance Report (AB thru TSgt), rendered for the period 24 February 2007 to 1 October 2007, be declared void and removed from his records. d. He was not discharged from active duty on 19 September 2008, but on that same date his name was placed on the Temporary Disability Retired List. e. He be evaluated by a military endocrinologist within 90 days, after corrective action by the Air Force, to determine existence of any residual sequelae of his primary diagnosis of Acromegaly and a follow-up re-evaluation of his fitness to serve by the Informal Physical Evaluation Board, with eligibility for subsequent appellate reviews as authorized. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2011-03096 in Executive Session on 12 June 12, under the provisions of AFI 36-2603: All members voted to correct the records, as recommended. The following documentary evidence pertaining to AFBCMR Docket Number BC-2011-03096 was considered: Exhibit A. DD Form 149, dated 7 Sep 11, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSOS, dated 1 Dec 11. Exhibit D. Letter, AFPC/DPSOA, dated 6 Jan 12. Exhibit E. Letter, AFPC/DPSIMC, dated 15 Feb 12. Exhibit F. Letter, BCMR Medical Consultant, dated 17 Apr 12, w/atch. Exhibit G. Letter, AFBCMR, dated 18 Apr 12. Panel Chair