RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-01135
            INDEX NUMBER:  145.00
      XXXXXXX    COUNSEL:  Gary Myers

      XXXXXXX    HEARING DESIRED:  Yes

_________________________________________________________________

APPLICANT REQUESTS THAT:

It appears that the applicant  is  requesting  that  the  entry-level
separation she received for a defective enlistment be voided and  she
be given a disability discharge.

_________________________________________________________________

APPLICANT CONTENDS THAT:

In a  four-page  Brief  of  Counsel,  with  attachments,  applicant’s
counsel outlines the applicant’s arguments in support of her request.

Her discharge for a defective enlistment was wrong and the  rationale
for her separation was and is factually inaccurate.

The applicant was fully forthcoming regarding her prior elbow injury.
 The injury that  occurred  to  her  elbow  on  21  Jan  03  was  the
aggravation of an existed prior to service (EPTS) condition.

The applicant’s injury was misrepresented to avoid placing her in the
disability evaluation system (DES).

Counsel’s complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant entered the Air Force on 14 Jan 03.  On 28 Jan 03,  she
was  notified  by  her  training  squadron  commander  that  he   was
recommending  her  discharge  from  the  Air  Force   for   erroneous
enlistment, based on a medical summary, dated 27 Jan 03,  that  found
that the applicant did not meet minimum medical standards  to  enlist
and should not have been allowed to join the Air Force due to a  left
elbow injury.  The applicant  was  also  advised  that  she  was  not
recommended for a disability separation because medical  staff  found
her unqualified.  The applicant acknowledged receipt on  28  Jan  03,
waived her right to counsel and to submit statements on  her  behalf.
She also acknowledged that if discharged for the reasons stated,  she
would not be entitled to any  disability,  retirement,  or  severance
pay.  The  training  squadron  commander  recommended  to  the  group
commander that the applicant be discharged  for  the  reasons  stated
above.  The discharge action was reviewed by the training wing deputy
chief of military justice and  found  to  be  legally  sufficient  to
support her separation, subject to inclusion in the file of a  report
of medical examination showing the  applicant  to  be  qualified  for
worldwide duty.  On 28 Jan 03, the training group commander  approved
the   applicant’s   entry-level   separation    with    service    as
uncharacterized.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/JA recommends denial of the applicant’s request.   They  discuss
below the central issues of counsel’s arguments.

The medical  waiver  for  the  applicant’s  prior  elbow  injury  was
incorrectly given at the time of her in processing.  The Air  Force’s
mistake in allowing the applicant to in process was the basis of  the
subsequent administrative discharge under AFI 36-3208  for  Erroneous
Enlistment.  Assuming that the waiver was proper, a  waiver  pursuant
to AFI 48-123 does not provide a  bar  to  subsequent  administrative
discharge.  Paragraph 8.1.2.3 specifically provides for  invalidation
of a waiver if the patient’s medical status changes.

Regarding a determination of line of duty (LOD), whenever a  military
member has a disease or  injury  that  results  in  an  inability  to
perform military duty for more than 24 hours or will likely  lead  to
permanent disability, a LOD determination as  to  the  cause  of  the
disease or injury is required.  On a determination of  Existed  Prior
to Service (EPTS), AFR 36-2910, paragraph 1.9.2 states that an injury
will be considered EPTS if the disease or injury, or  the  underlying
condition causing it, existed before the member’s entry into military
service and was not aggravated by service.   LOD  processing  is  not
required for injuries that existed  prior  to  active  duty  and  not
service aggravated.  Service aggravation is defined as a  preexisting
condition made  worse,  as  opposed  to  being  rendered  temporarily
symptomatic, (1) by a specific external event (e.g., a slip and fall)
which is otherwise LOD or (2) in the case of internal process  (e.g.,
heart attack)  by  special  demands  of  military  service.   In  the
applicant’s case, her left elbow was dislocated prior to her entering
the Air Force.  The fall during basic  training  did  not  cause  the
condition  or  worsen  it.   The  fall  rendered  the  prior   injury
temporarily symptomatic and disqualified the applicant  from  further
service.  With the applicant’s injury being found EPTS,  further  LOD
processing was not required.

Eligible members whose military service is cut short due to a service-
related physical disability incurred in the line of duty are eligible
for benefits  under  the  disability  system.   Otherwise,  they  are
usually involuntarily administratively separated.  Pursuant to AFI 36-
3208, paragraph 5.13.3, an Erroneous Enlistment is one the Air  Force
should not have accepted, but does not involve fraud.   An  Erroneous
Enlistment based on failure to meet physical standards may be waived,
but as indicated in the applicant’s medical records,  was  preventing
her from completing training.  The applicant  was  ineligible  for  a
physical disability separation because her injury was not incurred in
line of duty and was determined to be EPTS.

The complete evaluation is at Exhibit C.

AFPC/DPPRS recommends denial of the  applicant’s  appeal.   Based  on
their review of the  documentation  in  the  applicant’s  file,  they
believe that her discharge was consistent  with  the  procedural  and
substantive requirements of the discharge regulation.

AFPC/DPPRS also advised that they noted an  administrative  error  on
the applicant’s DD Form 214  and  have  issued  a  new  DD  Form  214
changing the separation code from “JFW” to “JFC”  and  the  narrative
reason  for  separation  from  “Failed  Medical/Physical  Procurement
Standards” to “Erroneous Enlistment.”

The complete evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant’s counsel responded to the Air Force evaluations.   Counsel
states that the applicant was not separated because of a pre-existing
condition, which was aggravated  by  active  duty  service.   Counsel
states that the active duty injury to the applicant’s elbow  did  not
render it temporarily symptomatic.  The applicant’s  injury  was  not
temporary as the applicant underwent physical therapy for two months.
 Counsel opines that this is clearly a service aggravation case.

Counsel’s complete submission is at Exhibit F.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

Pursuant  to  the  Board’s  request,  the  BCMR  Medical   Consultant
evaluated the applicant’s appeal.  He recommends that the applicant’s
records be corrected to show service-connected injury with disability
discharge rated at 10%.

Evidence of record indicates that the applicant’s functional  outcome
from her pre-service injury was good and that  her  injury  while  in
basic training was not merely a transient aggravation  of  a  chronic
condition, but rather a new,  distinct  injury  to  the  same  elbow.
Basic trainees with similar injuries are frequently  kept  on  active
duty for up to six months to receive treatment  and  resume  training
upon recovery.  If  the  service-incurred  injury  does  not  improve
sufficiently they are  referred  for  evaluation  in  the  disability
evaluation system.

Based on limited medical information from  the  applicant’s  physical
therapy/occupational therapy, it is not clear whether the applicant’s
condition has recovered or if there is permanent residual impairment.
 Based on the nature of the injury and the results of the  orthopedic
examination, complete recovery appeared to be  the  expected  result.
Based on the available evidence, the left elbow would have rated zero
percent under  VASRD  codes  for  elbow  loss  of  range  of  motion.
However, the Physical Evaluation  Board  (PEB)  may  have  rated  the
associated mild pain with decreased grip strength  no  more  than  10
percent.

The BCMR Medical Consultant concludes  that  the  applicant’s  injury
while on active duty was a distinct, new injury to the left elbow and
not  a  transient  exacerbation  of  an  existing  prior  to  service
condition.

The complete evaluation is at Exhibit G.

_________________________________________________________________

APPLICANT”S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Applicant’s counsel responded that he agrees with the additional  Air
Force advisory prepared by the BCMR Medical Consultant.

Counsel’s complete response is at Exhibit I.

_________________________________________________________________

SECOND ADDITIONAL AIR FORCE EVALUATION:

Since AFPC/JA made their recommendation to deny the applicant  relief
prior to the BCMR Medical Consultant’s review of  the  case  and  his
subsequent recommendation to grant the applicant a measure of relief,
they were asked to review their recommendation in light of  the  BCMR
Medical Consultant’s evaluation and  determine  if  it  would  change
their original recommendation.   Upon  review  of  the  BCMR  Medical
Consultant’s  findings,  AFPC/JA  recommended  that  the  applicant’s
records be corrected  to  reflect  a  service-connected  injury  with
disability discharge at 10 percent rating (Exhibit J).

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided  by  existing
law or regulations.

2.  The application was timely filed.

3.  Sufficient relevant evidence has been presented to  demonstrate
the existence of probable error  or  injustice.   In  view  of  the
recommendation  of  the  BCMR  Medical  Consultant  and   AFPC/JA’s
subsequent recommendation to  grant  the  applicant  relief  in  an
addendum to their evaluation, the majority of the Board agrees that
the applicant should be granted relief.  The majority of the  Board
believes that the BCMR  Medical  Consultant’s  findings  provide  a
reasonable basis to conclude that the  injury  to  the  applicant’s
elbow while on active duty was a new  and  distinct  injury  rather
than EPTS.  We note the BCMR Medical Consultant’s observation  that
basic trainees with similar injuries are frequently kept on  active
duty for up to 6 months to receive treatment  and  resume  training
upon recovery.  If the service-incurred  injury  does  not  improve
sufficiently, they are referred for evaluation  in  the  disability
evaluation system.  This did not happen in  the  applicant’s  case,
apparently,  because   clinic   personnel   determined   that   the
applicant’s injury was EPTS.  The BCMR Medical  Consultant  appears
to  believe  that  there  is  the  possibility  of   an   incorrect
determination since clinic personnel rather than  orthopedics  made
the  determination.   Additionally,  although  the  applicant   was
initially treated by orthopedics after  her  injury,  she  was  not
provided a recommended follow up examination with them.  Given  the
possibility of an incorrect  determination,  the  majority  of  the
Board believes that the benefit of the doubt should be given to the
applicant.  Given that the applicant disclosed her  previous  elbow
injury during her enlistment physical and was given a  waiver,  the
majority of the Board believes that the Air Force could and  should
have been more thorough in  their  evaluation  of  the  applicant’s
active duty injury, thereby resolving the doubt  that  now  exists.
Therefore,  the  majority  of  the  Board   recommends   that   the
applicant’s records be corrected as 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:

      a.  On 27 January 2003, she was found unfit  to  perform  the
duties of her office, grade, rank or rating by reason of a physical
disability incurred while entitled to basic pay; that the diagnosis
was for her elbow  injury  pain,  VASRD  Code  5307,  rated  at  10
percent; that the degree of impairment was a  permanent  condition;
that the disability  was  not  due  to  intentional  misconduct  or
willful neglect; that the disability  was  not  incurred  during  a
period of unauthorized absence; the disability was received in line
of duty; and that the disability was not the direct result of armed
conflict or caused by an instrumentality of war.

      b.  On 28 January 2003, she was not released from active duty
under  the  provisions  of  AFI  36-3208,  Chapter  5,  Section  C,
Paragraph 5.14, under Basis for Erroneous Enlistment, but  on  that
date, she was discharged from active duty for a physical disability
under the provisions of AFI 36-3212.

___________________________________________________________________

The following members of the Board considered this  application  in
Executive Session on 29 April 2004  and  26  May  2004,  under  the
provisions of AFI 36-2603:

      Mr. Jackson A. Hauslein, Panel Chair
      Mr. James W. Russell, Member
      Mr. Richard A. Peterson, Member

By majority vote, the  Board  voted  to  correct  the  records,  as
recommended.  Mr. Peterson voted to deny relief, but did not desire
to submit a minority report.  The  following  documentary  evidence
was considered:

    Exhibit A.  DD Form 149, dated 19 Apr 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFPC/JA, dated 18 Jun 03.
    Exhibit D.  Memorandum, AFPC/DPPRS, dated 9 Jul 03.
    Exhibit E.  Letter, SAF/MRBR, dated 10 Jul 03.
    Exhibit F.  Memorandum, Counsel, dated 5 Feb 04.
    Exhibit G.  Memorandum, BCMR Medical Consultant, dated
                18 Mar 04.
    Exhibit H.  Letter, AFBCMR, dated 19 Mar 04.
    Exhibit I.  Memorandum, Counsel, dated 29 Mar 04.
    Exhibit J.  Memorandum, AFPC/JA, dated 5 May 04.




                                   JACKSON A. HAUSLEIN
                                   Panel Chair

AFBCMR BC-2003-01135


MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air
Force Board for Correction of Military Records and under the
authority of Section 1552, Title 10, United States Code (70A Stat
116), it is directed that:

      The pertinent military records of the Department of the Air
Force relating to XXXXXXX, XXXXXXX, be corrected to show that:

            a.  On 27 January 2003, she was found unfit to perform
the duties of her office, grade, rank or rating by reason of a
physical disability incurred while entitled to basic pay; that the
diagnosis was for her elbow injury pain, VASRD Code 5307, rated at
10 percent; that the degree of impairment was a permanent
condition; that the disability was not due to intentional
misconduct or willful neglect; that the disability was not incurred
during a period of unauthorized absence; the disability was
received in line of duty; and that the disability was not the
direct result of armed conflict or caused by an instrumentality of
war.

            b.  On 28 January 2003, she was not released from
active duty under the provisions of AFI 36-3208, Chapter 5, Section
C, Paragraph 5.14, under Basis for Erroneous Enlistment, but on
that date, she was discharged from active duty for a physical
disability under the provisions of AFI 36-3212.






            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency