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AF | BCMR | CY2004 | BC-2004-00677
Original file (BC-2004-00677.doc) Auto-classification: Approved

                       RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-00677
            INDEX NUMBER:  110.00
      XXXXXXX    COUNSEL:  None

      XXXXXXX    HEARING DESIRED:  No

_________________________________________________________________

APPLICANT REQUESTS THAT:

His  Reenlistment  Eligibility  (RE)  code  be  changed  from   “2Q,”
“Personnel medically retired or discharged,” to one that  will  allow
his reentry into the Air Force.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The disability for which he was discharged did  not  exist  prior  to
service as indicated on his DD Form 214.

In support of his appeal, applicant references  the  claim  he  filed
with the Department of Veterans Affairs (DVA).

Applicant’s complete submission, with attachment, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant entered active  duty  in  the  Air  Force  on  26  Dec  96.
According to the Medical Evaluation Board (MEB) report, Applicant was
seen on 19 Jan 97 in the medical clinic for pain to  his  left  knee.
Applicant indicated that he had caught his left foot  in  webbing  on
the confidence course and fell.  Applicant was treated  and  given  a
waiver from running  and  physical  conditioning.   On   20  Jan  97,
Applicant was seen in consultation by Orthopedics and  told  that  as
his pain decreased over the next 1-2 weeks, he could resume training.
 However, the Applicant was seen at the medical clinic  again  on  28
Jan 97 and it was noted that his knee  was  worse.   On  31  Jan  97,
Applicant was seen again because he fell down stairs  and  re-injured
his left knee.  His exam was unremarkable and he was referred back to
Physical Therapy.  On   5 Feb 97, Applicant was re-evaluated  by  the
Chairman of the Department of Orthopedics.  It was  recommended  that
administrative disposition be pursued due to his  inability  to  meet
medical standards/participate in basic training.  Applicant indicated
he wanted to remain in the Air Force so he was  given  an  additional
waiver from running and physical conditioning.  He  was  subsequently
given several more waivers.  On 24 Mar  97,  he  was  told  that  his
waiver time was over and he had to  return  to  training.   Applicant
indicated that if he returned to training he would fail.  On  25  Mar
97, an MEB diagnosed Applicant as  having  Patellar-Femoral  Syndrome
unresponsive to conservative therapy based on his statement  that  he
could not continue training.  The condition was  determined  to  have
existed prior to service (EPTS) and  to  not  have  been  permanently
aggravated by service.  It was recommended that Applicant be referred
to an Informal Physical Evaluation Board (IPEB).

On 14 Apr 97, the IPEB convened and diagnosed the applicant as having
Patellofemoral   Syndrome,   left   knee,   EPTS,   without   service
aggravation.  The IPEB recommended that Applicant be discharged under
other than chapter 61, 10 U.S.C.  On 15 Apr 97,  Applicant  indicated
that he did not agree with the findings and  recommended  disposition
and demanded a formal hearing of  his  case.   He  was  scheduled  to
report to the Formal PEB (FPEB) on   21 Apr 97.  However, on  22  Apr
97, Applicant submitted a request to waive the  FPEB  due  to  having
received an explanation of the IPEB’s  findings  and  recommendations
from his counsel.  Applicant indicated that he now wanted  to  concur
with the IPEB findings and  recommendations.   In  his  request,  the
applicant also indicated his understanding that if  the  waiver  were
approved, he would have no further right to demand a  formal  hearing
without  substantial  new  evidence.   The  applicant’s  waiver   was
approved on 22 Apr 97.  On 23 Apr 97, the Secretary of the Air  Force
Personnel Council (SAFPC) directed that the  applicant  be  separated
from active service for physical disability due to a  condition  that
existed prior to service.

On 28 Apr 97, the applicant’s Training Squadron Commander requested a
delay in the PEB proceedings due to the applicant having been  placed
on administrative hold pending an investigation for mal-training/mal-
treatment  of  other  trainees.   The  applicant  was  removed   from
administrative hold on 29 Apr 97.  He was discharged on 1 May 97 with
an RE code of “2Q.”

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPD recommends denial of Applicant’s request.  Applicant’s BCMR
application states his contested  medical  condition  did  not  exist
prior to service and is supported by his claim to the DVA.   However,
a DVA rating decision, dated 6 Mar 98, refers to a statement  from  a
Dr C___ expressing that Applicant had a minor knee  injury  prior  to
military service and apparently  had  no  problems  when  he  entered
active duty.  The DVA decision was reconsidered following Applicant’s
rebuttal and they ruled in his favor  and  rated  his  left  knee  as
service connected.  Applicant failed to provide  supporting  evidence
that his left knee problem  did  not  exist  prior  to  his  military
service.

The complete evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant  on
30 Apr 04 for review and comment within 30 days.  To date, a response
has not been received.

_________________________________________________________________

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 regarding the applicant’s request
to change his code to one that will allow him to reenlist.   Although
we  agree  with  the  Air  Force  office  of  primary  responsibility
regarding the determination of the applicant’s medical  condition  as
EPTS, we believe the determination by the DVA  that  the  applicant’s
medical condition is service connected creates the appearance  of  an
injustice.  While we recognize that the DVA system and the Air  Force
systems are separate and distinct, we believe that in the interest of
justice the applicant should be given the  waiverable  code  of  “3K”
whereby he may  reenter  service  provided  he  meets  the  necessary
requirements for enlistment and is  granted  a  waiver.   We  do  not
support changing the narrative reason for  his  separation  since  we
believe it is correct  and  should  be  documented  in  his  records.
Therefore, we recommend that his 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 at the  time  of  his
discharge on 1 May 1997, his Reenlistment Eligibility (RE)  code  was
RE-3K.

_________________________________________________________________

The following members of the Board considered Docket Number  BC-2004-
00677 in Executive Session on 21 July 2004, under the  provisions  of
AFI 36-2603:

      Mr. Michael K. Gallogly, Panel Chair
      Ms. Martha J. Evans, Member
      Mr. James W. Russell, III, Member

All members voted  to  correct  the  records,  as  recommended.   The
following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 22 Mar 04, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Memorandum, AFPC/DPPD, dated 22 Apr 04.
     Exhibit D.  Letter, SAF/MRBR, dated 30 Apr 04.




                                   MICHAEL K. GALLOGLY
                                   Panel Chair



AFBCMR BC-2004-00677


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 at
the time of his discharge on 1 May 1997, his Reenlistment
Eligibility (RE) code was RE-3K.






            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency


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