RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-01985 XXXXXXX COUNSEL: XXXXXXXX HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: 1. Her Reserve retirement be changed to a medical retirement based on her physical and mental conditions with a 50 percent disability rating or greater. 2. She receive any additional relief the Board feels is appropriate. ________________________________________________________________ APPLICANT CONTENDS THAT: She should have been allowed a Medical Evaluation Board (MEB) for her worsening service-connected illnesses. At a minimum, she should have been extended on active duty to accommodate this process. She was approved for a 10 percent disability rating; however, this was done before she underwent back surgery and had significant outpatient and inpatient psychiatric treatment; her conditions should be rated higher. Another MEB was initiated as a result of mental and physical deterioration subsequent to her first MEB/Physical Evaluation Board (PEB). Her mental and physical ailments are service-connected; were present and diagnosable during her last year of service and prevented her continued service. She was hospitalized for severe depression and suicidal ideations, a condition which mandates MEB processing in accordance with AFI 48-123, Medical Examinations and Standards, para 5.3.12.5. This is in addition to her previous MEB/PEB determination of 10 percent severance pay. Air Force regulations and instructions clearly require that servicemembers suffering from service-connected illness and injury should not be discharged or released from active service until medical processing is complete. In support of her appeal, the applicant provides a 21-page brief from counsel, with attachments; copies of NGB Form 22, Report of Separation and Record of Service, issued in conjunction with her 21 Feb 11 transfer to the Retired Reserve; DD Form 214, Certificate of Release or Discharge from Active Duty, issued in conjunction with her 23 Feb 11 release from active duty; Reserve Order EK-2605, retirement order, dated 16 Feb 11, and various other documents associated with her request. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: On 24 Feb 98, the applicant, a member of the Colorado Air National Guard (COANG) entered active duty as an Active Guard Reservist (AGR). On 29 Sep 08, while serving as an AGR, a MEB was conducted and the applicant was diagnosed with degenerative disc disease of L5-S1 and referred to the Informal PEB (IPEB). On 21 Feb 11, the applicant was released from active duty and transferred to the Non-Affiliated Reserve Section (NARS). On 22 Feb 11, the applicant was placed on the USAF Reserve Retired List awaiting pay at age 60. She was credited with 20 years, 11 months, and 6 days of service for retired pay. ________________________________________________________________ AIR FORCE EVALUATION NGB/SGPA recommends denial. SGPA notes that the applicant had an MEB that started in 2008. The AF Form 618, Medical Board Report, states the applicant's disqualifying condition was degenerative disc disease. The narrative summary for the applicant’s MEB included a mental health narrative summary with her additional mental health conditions. The applicant stated that she was initially found unfit with severance pay of 10 percent by the IPEB. The AF Form 618 from the IPEB was not submitted for review; only a portion was copied and pasted to a word document. There is no way to determine if the other conditions were considered. The applicant states that she appealed the decision in 2009. Out of the 400 pages of documents that were submitted for this BCMR there were no records from the Formal PEB (FPEB). There is no written confirmation regarding either the conditions considered or the outcome of the FPEB. The applicant retired honorably in 2011, two years after her original MEB. One could surmise that the FPEB found the applicant fit and returned her to duty in 2009. Unfortunately, the lack of sufficient documentation submitted goes against recommending relief to the applicant. The complete SGPA evaluation is at Exhibit C. AFPC/DPFD recommends denial, stating, in part, that the preponderance of evidence reflects that no error or injustice occurred during the disability process. In addition, they note that because the applicant was a member of the ANG the records of her evaluation by the PEB are not contained in the Automated Records Management System (ARMS) and only a few documents are available. As such, some information available in conducting this review is based on dates reflected in the Military Personnel Data System (MilPDS) and the records provided by the applicant. The MEB process started in 2008, on 7 Jul 09, the case was returned without action by the FPEB for an impartial review to be conducted and for the medical board to be resubmitted when everything was complete. However, the IPEB did not receive a new medical board to adjudicate the case or to recommend a medical separation or retirement. The complete DPFD evaluation is at Exhibit D. The BCMR Medical Consultant recommends denial. The Military Disability Evaluation System (MDES), established to maintain a fit and vital fighting force, can by law, under Title 10, United States Code (U.S.C.), only offer compensation for those service incurred diseases or injuries which specifically rendered a member unfit for continued active service and were the cause for career termination; and then only for the degree of impairment present at the time of separation and not based on future occurrences. The applicant reported being in a car accident in 1998, 2004, and 2008. The applicant has a long history of lower back issues dating from 12 Feb 99, as described by the Department of Veterans Affairs (DVA) and service records. The applicant’s records show that the lower back issues were responsible for numerous missed work days, (AF Forms 422, Physical Profile Serial Reports and AF Forms 469, Duty Limiting Condition Reports). The preponderance of these AF Forms 422 and AF Forms 469 were related to the applicant’s lower back. The applicant's commander was well within his/her prerogative to initiate an MEB since the applicant’s medical condition would likely continue to restrict her utilization as a Total Force asset. The IPEB recommended Discharge with Severance Pay (DWSP) at 10 percent, using Veterans Affairs Schedule for Rating Disabilities (VASRD) code 5243; the applicant appealed the decision to the FPEB. The FPEB's ultimate determination is unknown but the Medical Consultant surmises that the applicant was found fit for duty. It appears, the applicant’s request to be returned to duty was ultimately granted and the applicant’s degenerative disc disease (lower back, VASRD code 5243) may well have been considered unfitting in May 08 at the IPEB. If there were any further developments regarding the applicant’s lower back they were revaluated on 30 Mar 11, one month post military retirement by the DVA. The DVA at that time found her degenerative disc disease VASRD 5243, non-compensable (0 percent). In summation, if the applicant’s lower back condition was unfitting it would have received a disability compensation rating of 0 percent, and therefore no error or injustice occurred during the disability process. The AF Forms 422 and AF Forms 469 in the applicant’s supplied records appear to be in reference to degenerative disc disease of the cervical spine. The DVA analysis was granted for “objective evidence of painful motion” [VASRD §4.59]. Had the applicant undergone an MEB, the condition would have been categorized as a condition that can be unfitting but not currently compensable or ratable (Category II), and therefore no error or injustice occurred during the disability process. Addressing the applicant’s mental health request, the Medical Consultant considered both the quality and quantity of the supplied medical records in making a recommendation. The Medical Consultant notes that the applicant’s first mental health assessment was on 9 Nov 99 and her mental health history spans over 10 years. The applicant has been evaluated by numerous highly qualified mental health professions throughout her career and during retirement; as would be expected multiple opinions arise, “adjustment disorder, mixed anxiety, depressed mood, occupational problems, phase of life/life circumstance problem, major depressive disorder-partial remission, depression-not otherwise specified, and depression due to spinal pain.” Medicine is both an art and a science and each professional’s description and diagnosis was correct if viewed through “lens of that time.” The applicant clearly had satisfactory coping skills since it appears she reasonably perform the duties of her office, grade, rank, or rating for over ten years; supporting this assessment is a career that progressed in a satisfactory manner. In summary, the preponderance of, unbiased and impartial, evidence given by mental health professionals, supports a temporary, situational, transient, resolving, mild depression. Some of the inciting factors [pain] have been resolved DVA reports no further pain. The Medical Consultant was unable to find any long term AF Form 422 with a Psychiatric profile (S-1). The applicant’s mental health issues were not unfitting and there was no error or injustice committed during the disability process. The applicant was evaluated by a military mental health provider and her condition does not meet the criteria requiring a separate MEB. The Medical Consultant believes the applicant has not met the burden of proof of error or injustice that warrants the desired change of the record. The discharge was consistent with the procedural and substantive requirements of the discharge regulation. The complete BCMR Medical Consultant evaluation is at Exhibit F. ________________________________________________________________ APPLICANT’S REVIEW OF THE AIR FORCE EVALUATION Counsel notes that the applicant’s original PEB was not properly closed out. After being notified of an initial 10 percent rating with severance pay in 2009, she appealed the matter to a FPEB. After additional medical problems surfaced, the matter was returned for further investigation. At this point, no further action was taken. The applicant should have been extended on active duty until this process was properly closed out. Counsel asserts that the opinion of the SGPA differs from that of DPFD, in that, the IPEB results were not submitted with the appeal. Actually, the IPEB results and paperwork were submitted in the evidentiary packet with all other medical records from 2009. Counsel disagrees with the BMCR Medical Consultant’s opinion in regards to the three motor vehicle accidents and notes that they were In the Line of Duty (ILOD). The applicant’s mental health conditions continued from 2004 and were aggravated, in 2010, by a hostile work environment which resulted in hospitalization and suicidal ideation. The applicant’s PEB should have been continued and resulted in a medical retirement. In further support of her appeal, she provides counsel’s statement; copies of letters and medical notes from her civilian provider and various other documents. The applicant’s complete response, with attachments, is at Exhibit G. ________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 3. Insufficient relevant evidence has been presented to demonstrate the existence of an error or an injustice warranting changing her Reserve retirement to a medical retirement with a 50 percent disability rating. We note that the applicant contends that her medical conditions warranted extended her on active duty for further MEB processing and provides letters of support from her commander and the Colorado ANG Assistant Adjutant General. However, after carefully reviewing the evidence we do not find it supports a determination that she was improperly separated from active duty in 2011. The applicant has provided no evidence which, in our opinion, successfully refutes the assessment of her case by the BCMR Medical Consultant. Therefore we agree with opinion and recommendation of the BCMR Medical Consultant and adopt the rationale expressed as the basis for our conclusion the applicant has failed to sustain her burden of proof that she has been the victim of an error or injustice. Accordingly, we find no basis upon which to recommend granting the relief sought in this application. 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 issue 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 Docket Number BC-2013-01985 in Executive Session on 4 Mar 14, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 19 Sep 12, w/atchs. Exhibit B. Applicant's Available Master Personnel Records. Exhibit C. Letter, NGB/SGPA, dated 29 May 13. Exhibit D. Letter, AFPC/DPFD, dated 18 Jun 13. Exhibit E. Letter, BCMR Medical Consultant, dated 17 Jul 13. Exhibit F. Letter, SAF/MRBC, dated 29 Jul 13. Exhbiit G. Email, Applicant, dated 29 Aug 13, w/atchs. Panel Chair