RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-03176 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: 1. He be medically retired due to his honorable service with the United States Navy (USN), Washington Air National Guard (ANG) and the United States Air Force (USAF). 2. He be given a medical discharge. _________________________________________________________________ APPLICANT CONTENDS THAT: 1. He was not afforded the opportunity to request an early retirement. He met a Medical Evaluation Board (MEB) and was subsequently discharged and received severance pay with a 10 percent disability rating. 2. He disagreed with the findings and recommended disposition of the Formal Physical Evaluation Board (FPEB). He appealed the findings to the Secretary of the Air Force (SECAF) and was returned to duty. 3. He was notified that the Surgeon General (SG) determined he would be honorably discharged from the Washington ANG due to insufficient retainability for mobilization or ineligibility for worldwide deployment. In support of his request, the applicant provides copies of DD Form 294, Application for a Review by the Physical Disability Board of Review (PDBR) of the Rating Awarded Accompanying a Medical Separation from the Armed Forces of the United States; VA Form 3288, Request for and Consent to Release of Information from Individual’s Records; AF Form 356, Findings and Recommended Disposition of USAF Physical Evaluation Board (PEB); DD Form 214, Certificate of Release or Discharge from Active Duty; DD Form 214N, Report of Separation from Active Duty; NGB Form 22, Report of Separation. The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant served in the USN from 25 May 73 to 24 Jul 81; the Army National Guard (ARNG) from 6 May 98 to 5 Nov 99; the ANG from 6 Nov 99 to 10 Aug 05. While serving in the ANG the applicant was recalled to extended active duty from 18 Apr 00 to 20 Dec 00 and 30 Jun 03 to 31 Jul 05. The applicant served 15 years, 7 months and 24 days of total active service. On 27 May 04, a Line of Duty (LOD) determination was initiated because the applicant had a pulmonary embolism (blockage of the lungs). On 14 Jun 04, the applicant’s injury was determined to be in the LOD. On 18 Aug 04, the applicant’s records met a MEB for pulmonary embolism. The MEB recommended the applicant be referred to an Informal PEB. On 17 Sep 04, the IPEB found the applicant unfit and recommended his discharge with severance pay with a disability rating of 10 percent for deep vein thrombosis. On 27 Sep 04, he disagreed with the findings and recommended disposition of the IPEB and demanded a formal hearing of the case. On 15 Nov 04, the FPEB reviewed the case and recommended he be discharged with a combined disability rating of 10 percent for deep vein thrombosis causing pulmonary embolus; not asymptomatic, on Coumadin long term therapy. The FPEB noted: “The applicant testified that he has no recurrence of his thrombosis or his embolism. He is well-maintained on his Coumadin which is projected to be life-long therapy. He has had no complication and can perform all the duties of his Air Force Specialty Code (AFSC) at his current duty assignment. Although the member’s condition is currently stable on medication, he is at a higher than normal risk for sudden incapacitation and bleeding complications which could have a negative impact on mission accomplishment.” The FPEB opined the applicant’s condition is not compatible with the rigors of military service. The applicant disagreed with the findings and recommended disposition of the FPEB and appealed its decision to the Secretary of the Air Force Personnel Council (SAFPC) requesting that he be allowed to return to duty. On 30 Dec 04, SAFPC non-concurred with the recommendations of the previous boards for a disposition of unfit for continued military service and directed the applicant be returned to duty for continued care and observation. The board noted: “The applicant is advised that he is subject to periodic reevaluations of his medical condition, upon which fitness for continued military service would again be determined.” On 7 Apr 05, the applicant’s unit was notified that although the IPEB and AFPC found him fit and recommended he be returned to duty, ANG/SGPA determined the applicant does not meet medical standards for worldwide duty. In addition, ANG/SGPA noted the applicant was disqualified for worldwide duty and may be eligible for Deployment Availability Code (DAC) 42, which denotes (MEB/PEB) position, if not, he should be administratively discharged. On 10 Aug 05, the applicant was discharged from the Washington ANG and as a member of the Reserve of the Air Force, due to insufficient retainability for mobilization or ineligibility for worldwide deployment. On 24 Apr 06, the Department of Veterans Affairs assigned the applicant a 10 percent disability rating for status post deep vein thrombosis with pulmonary embolism effective 1 Aug 05. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPPD recommends denial. DPPD states the preponderance of evidence reflects that no error or injustice occurred during the disability process. The complete DPPD evaluation is at Exhibit C. _________________________________________________________________ ADDITIONAL AIR FORCE EVALUATION: The BCMR Medical Consultant recommends rescinding the applicant’s administrative discharge under the provision of AFI 36-3209, Separation and Retirement Procedures for Air National Guard and Air Force Reserve Members and supplanting it with an order transferring the applicant to the Reserve Retired Section effective the date of discharge (10 Aug 05). The BCMR Medical Consultant opines authorized policies and procedures were undertaken in the applicant’s processing through the Military DES; up to and including the decision by SAFPC to return him to duty, followed by the ANG/SG decision to release the applicant from military service. Even though the applicant’s profiles indicated he was worldwide qualified, it is evident that this designation was brought into question by senior medical officials within the applicant’s chain of command. Although SAFPC may have been led to believe the applicant occupied a non-deployable position, a document of record announces the applicant was “detailed” to the Western Air Defense Sector, while officially assigned to the “1AF for operational control (OPCON) and administrative control (ADCON)” for contingency operational purposes. The Medical Consultant interprets this as the holder or owner of the applicant’s personnel position, and to whom he was obligated for operational readiness purposes, most likely had him assigned against a deployable billet. The Medical Consultant acknowledges the perception of an injustice in the applicant’s case, as he was released from military service for the very condition he was found fit by an appellate review board and returned to duty. Therefore, the Consultant directs the Board’s attention to legislation 10 U.S.C., Section 1214a that was likely introduced in response to similar administrative discharges among military Services, with the likely aim to curb inappropriate administrative discharges in lieu of a medical discharge through the military DES. If the applicant’s case was one in which he was found fit by the IPEB or FPEB (which he was not) and returned to duty, but was then administratively separated under authority of AFI 36-3209, the Medical Consultant opines SAFPC, representing the “Secretary of the military department concerned” could conceivably serve as the appropriate body for implementing an appropriate remedy under 10 U.S.C., Section 1214a, by directing that the applicant’s case be reevaluated by the PEB (with the implicit aim of finding the service member unfit if truly more appropriate). After considering all available evidence, the Medical Consultant found no evidence of an error in the processing of the applicant’s discharge under policies and procedures in existence at the time of the applicant’s military service; from the processing of his MEB, to the time he was found unfit by both PEBs, to the successful appellate review that returned him to duty, and his ultimate discharge under AFI 36-3209. Given the fact that he had completed 15 satisfactory years of service, the Medical Consultant opines the administrative discharge posed an injustice to the applicant. For this reason and this reason alone, the Medical Consultant opines consideration should be made for supplanting the applicant’s administrative discharge order with one in which authorizes his transfer to the Reserve Retired Section; pending verification that he had achieved at least 15, but less than 20, satisfactory years of service. The complete BCMR Medical Consultant’s evaluation, with attachment, is at Exhibit E. _________________________________________________________________ APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 14 Aug 12 for review and comment within 15 days. To date, a response has not been received (Exhibit F). _________________________________________________________________ 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 an error or injustice to warrant granting partial relief. In this respect, we note the applicant while serving in the ANG was recalled to extended active duty from 30 Jun 03 to 31 Jul 05 and experienced a pulmonary embolism which required long-term use of an anticoagulant. Given the fact the applicant had completed 15 satisfactory years of service, the Medical Consultant opines the administrative discharge posed an injustice to the applicant. While the applicant requests he be medically retired due to his honorable service with the USN, Washington ANG and the USAF and he be given a medical discharge; we concur with the alternative recommendation of the BCMR Medical Consultant that the record should be changed to reflect the applicant’s administrative discharge order was rescinded under the provisions of AFI 36- 3209 and he be transferred to the Reserve Retired Section effective the date of his discharge; The Air Force Reserve Center has verified that at the time of the applicant’s discharge, he had 15 years, but less than 20 satisfactory years of service. In view of the above and in the interest of equity and justice, we recommend his record be corrected to the extent indicated below. ________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that his administrative discharge Special Order PS-128, dated 15 August 2005, is hereby rescinded under the provisions of AFI 36-3209, Separation and Retirement Procedures for Air National Guard and Air Force Reserve Members and that he be transferred to the Retired Reserve Section effective 11 August 2005. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2011-03176 in Executive Session on 4 Oct 12, under the provisions of AFI 36-2603: Panel Chair Member Member All members voted to correct the records, as recommended. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 8 Aug 11, w/atchs. Exhibit B. Applicant’s Master Personnel Record Exhibit C. Letter, AFPC/DPPD, dated 15 Sep 11. Exhibit D. Letter, SAF/MRBR, dated 21 Oct 11. Exhibit E. Letter, BCMR Medical Consultant, dated 8 Aug 12. Exhibit F. Letter, SAF/MRBC, Letter, dated 14 Aug 12. Panel Chair