AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

Jut  2 7  1998 

IN THE MATTER OF: 

DOCKET NUMBER: 96-03264 
COUNSEL:  None 
HEARING DESIRED:  Yes 

APPLICANT REQUESTS THAT: 
The  Existed  Prior  To  Service  (EPTS) designation  the  Informal 
Physical Evaluation Board  (IPEB) gave her condition be  removed 
and %how  [her] allegations as stated in  [her] letters of 28 May 
96  and  20 Jun  96  as  Age  Discrimination  and  Harassment,  not-- 
'Insensitivity of your Commander.11' 

- 

APPLICANT CONTENDS THAT: 
She experienced many injustices while seeking appropriate medical 
care and during the evaluation board processes as  indicated in 
her 28 May and 20 June 1996  letters.  [Applicant  d i d   not  provide 
copies  o f   the  two  l e t t e r s   i n   question,  only  a  copy  o f   a  l e t t e r  
from  the  Chief  o f   S t a f f   which  r e f e r s   t o  her  2 8   May  1996  l e t t e r - - -  
See  E x h i b i t   A.]  The  Inspector  General  and  the  Chief  of  Staff 
whitewashed and covered up the wrongs done her. Her legal counsel 
at -FB 
advised  her  that  the  Formal  PEB  (FPEB) she 
requested would possibly take one of three actions. She wanted to 
stay in the Air Force and have her teeth fixed but, based on what 
her counsel told her, felt she had no choice but to take what she 
was given by  the IPEB. She asserts that  if this matter is ''not 
satisfactorily resolved/# she will file suit in Federal Court for 
age  discrimination,  harassment,  and  whitewashing  by  the  Air 
Force. 
Applicant's complete submission is attached at Exhibit A. 

a 

STATEMENT OF FACTS: 
During the period in question, applicant was 51 years old and a 
captain (Date of Rank: 30 Nov 92) assigned as an Assistant Nurse 
Ma 
ental Health, with the  96 Medical Operations Squadron 
. 
In  her  Letter  of  Exception  regarding  the 
at 
edical Evaluation Board  (MEB) evaluation, she 
15 
raises contentions of  age discrimination and  states she wanted 
proper medical treatment; i.e. ,  at the Mayo Clinic, not an MEB. 
Applicant  was  honorably  discharged  on  27  August  1996  for 

. 

severance pay. She had 4 years, 10 months 
service. She has a 50% disability rating 
Veterans Affairs based on their 31 January 

disability at 20% with 
and  14 days of active 
from the Department of 
1997 determination. 
The  remaining  relevant  facts  pertaining  to  this  application, 
extracted from the applicant's military records, are contained in 
the letters prepared by the appropriate offices of the Air Force. 
Accordingly,  there  is  no  need  to  recite  these  facts  in  this 
Record of Proceedings. 

- - 

AIR FORCE EVALUATION: 
The AFBCMR Medical Consultant reviewed the appeal and states that 
the IPEB was correct in determining that applicant's bony atrophy-- 
was an EPTS condition as she had  required surgical attempts to 
prevent f urt 
ly after her arrival at her first 
.  Findings and 
edical Center 
duty station 
recommendatio 
were  initial 
n- concurred  by 
applicant  who  later withdrew  her  request  for  FPEB  review  and 
accepted separation with severance payment and a 20% disability 
rating. There is no evidence to support a higher rating at  the 
time of  [discharge]. Action and medical disposition in this case 
are proper and reflect compliance with Air Force directives which 
implement the law.  No change in the record is warranted. 
A complete copy of the Air Force evaluation is at Exhibit C. 
The  Chief,  Physical  Disability  Division,  HQ  AFPC/DPPD,  also 
evaluated this case and indicates that certain physical defects 
or conditions, when found, require the conclusion that they must 
have existed before entry into military service and are referred 
to  as EPTS.  EPTS  conditions include those which by  their very 
nature  (e.g., cause,  time  of  origin, etc.)  must  have  existed 
before the member's military service began.  Other conditions may 
also be deemed EPTS if they were documented-by competent medical 
or dental sources before entry into service. A PEB will determine 
whether a physical defect or condition existed before entry into 
service, and the degree of service aggravation (if any) for each 
EPTS condition. Under the provisions of military disability law 
and policy, only the permanent aggravation caused by the member's 
service may be compensated, not the degree of natural progression 
which would have reasonably occurred in or out of uniform. The 
author  concurs  with  the  AFBCMR 
Consultant's 
recommendations. No errors or irregularities were found, the case 
was  appropriately processed  and  rated,  and  the  applicant  was 
afforded all rights to which entitled. Denial is recommended. 
A complete copy of the Air Force evaluation is at Exhibit D. 

Medical 

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96-03264 

L 

The Staff Judge Advocate, HQ AFPC/JA, also reviewed the appeal 
and indicates that while applicant has made allegations regarding 
age  discrimination  and  harassment,  she  has  not  requested  any 
correction of  records or  sought any particular  relief  in  this 
regard (See Advisory Footnote 1). Accordingly, the author has not 
addressed  these  matters.  Based  on  the  author's  review,  the 
applicantls  FPEB  counsel  rendered  a  very  realistic  opinion 
assessing her future in the Air Force. If her  counsel had  left 
her with a more optimistic impression, he would have been remiss 
in his obligations of candor to his client. Even if her counsel 
had somehow been in error or negligent in his legal advice, there 
would  be  no  grounds  for  correction  because  "erroneous advice 
given  by  a  government  agent  to  a  benefits  claimant m u l d  not 
estop the government from denying benefits.  Further, the relief 
sought  by  applicant  simply  does  not  flow  from  the 
errors/injustices  she  alleges.  Nowhere  does  she  make  any 
connection between the purported errors (Ilwhitewash,  llcover-up, It 
improper  transfer,  improper  advice  from  her  counsel)  and  her 
requested  remedy.  She  says nothing  now---similar to  her  pre- 
commissioning  medical  history---about  her  dental  and  jaw 
conditions (and the extent to which it existed prior to her entry 
into service) yet she seeks to eliminate the EPTS assessment. In 
connection  with  this  silence,  the  author  cites  the  equitable 
Ilclean  hands"  doctrine  since  the  apparent  basis  for  this 
application  is  equitable  in  nature.  Under  this  doctrine, 
equitable relief will not be granted to a party who seeks to set 
judicial machinery in motion and obtain some remedy if such party 
in her prior conduct has not been fair, equitable, and completely 
honest as to the particular controversy in issue. Because of this 
silence, her complete honesty---in her application, now, and in 
her medical history, earlier---is seriously suspect. The author 
can only conclude that the applicant is silent on her preexisting 
jaw/dental  condition  because  her  prior  medical  history  is 
extensive and disclosure of such history would not be helpful to 
her case. He is not sure applicant has ever completely disclosed 
the  extent  of  her pre-service dental history. While  she states 
she had  no  choice but  to take what  she had  been given by  the 
IPEB, the statement she signed  [waiving her-earlier election for 
an FPEB] was legally effective and is a very good indication that 
she  knew  her  right  to  have  her  case  heard  by  the  FPEB  and 
intentionally relinquished it. An  even better indication is the 
application she filed seeking relief  from the AFBCMR.  Based  on 
the notes she took when  consulting with her  appointed counsel, 
she articulated the three possible actions the FPEB could take. 
She elected the option most  favorable to her. While the author 
does not go so far as to suggest the AFBCMR reconsider the merits 
of the PEB with a view of increasing the EPTS percentages  [which 
would reduce applicant's  20% disability rating and be an adverse 
correction] , he emphatically suggests that this claimant has not 
met  her  difficult  burden  of  overcoming  the  strong presumption 
that  the  PEB  administrators discharged  their duties  correctly, 
lawfully and  in good  faith. Because she effectively waived her 
rights  to  an  FPEB  hearing  based  upon. competent  legal  advice, 

3 

96-03264 

. 

because she has not  shown the PEB assessment to be arbitrary or 
capricious, and because the relief sought has no relation to the 
errors/injustices alleged, denial is recommended. 
A complete copy of the Air Force evaluation is at Exhibit E. 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 
Complete copies of  the Air  Force evaluations were  forwarded to 
the applicant on 29 December 1997 and 15 January 1998 for review 
and comment within 30 days.  As  of  this date, no respnse has 
been received by this office. 

THE BOARD CONCLUDES THAT: 

The applicant has exhausted all remedies provided by existing 

1. 
law or regulations. 
2 .   The application was timely filed. 
3 .   Insufficient  relevant  evidence  has  been  presented  to 
demonstrate the existence of probable error or injustice. After a 
thorough  review  of  the  evidence  of  record  and  applicant's 
submission,  we  are  not  persuaded  that  her  records  should  be 
changed. Applicant's contentions are duly noted; however, we  do 
not  find these uncorroborated assertions, in and by themselves, 
sufficiently persuasive to override the rationale provided by the 
Air Force. Applicant has provided no persuasive evidence that her 
medical condition was improperly rated and processed or that she 
was a victim of age discrimination and harassment. We  therefore 
agree with  the  recommendations of  the Air  Force  and  adopt  the 
rationale  expressed  as  the  basis  for  our  decision  that  the 
applicant has failed to sustain her burden that she has suffered 
either an error or an injustice. In view of the above and absent 
persuasive evidence to the contrary, we fin. no compelling basis 
to recommend granting the 
4.  The documentation provided with this case was  sufficient to 
give the Board a clear understanding of the issues involved and a 
personal  appearance, with  or without  legal  counsel, would  not 
have  materially  added  to  that  understanding.  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  probable  material  error  or 
injustice; that  the  application was  denied  without  a personal 
appearance; and  that  the application will  only be  reconsidered 

4 

96-03264 

upon  the  submission of  newly  discovered  relevant  evidence not 
considered with this application. 

The following members of the Board considered this application in 
Executive Session on 23  June 1998, under t h e   provisions of AFI 
36-2603 : 

Mr. Wayne R. Gracie, Panel Chair 
Mr. Dana J. Gilmour, Member 
Mr. Allen Beckett, Member 

The following documentary evidence was considered: 

Exhibit A. DD Form 149, dated 29 Oct 96, w/atchs. 
Exhibit B. Applicant's Master Personnel Records. 
Exhibit C. Letter, AFBCMR Medical< Consultant, dated 3 Jun 97. 
Exhibit D. Letter, HQ AFPC/DPPD, dated 19 Aug 97. 
Exhibit E. Letter, HQ AFPC/JA, dated 10 Dec 97. 
Exhibit F. Letters, AFBCMR, dated 29 Dec 97 &  15 Jan 98. 

WAYNg R. GRACIE 
Panel Chair 

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96-03264