RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-03882
            INDEX CODE:

            COUNSEL:  NONE

            HEARING DESIRED: NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His return to duty recommendation be reviewed and ultimately reversed.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was not counseled or  advised  of  the  options  available  to  him
regarding the Medical Evaluation Board (MEB),  the  Informal  Physical
Evaluation Board (IPEB) or medical discharge from the Air  Force.   He
contends he was not aware he was potentially eligible  for  disability
retirement or severance pay as a result of injuries sustained while on
active duty.  Further, he was not  given  adequate  time  to  reach  a
decision on whether or not to submit a letter of exception to the IPEB
regarding the Board’s findings.  He made the decision to appeal  based
on being advised that he had to make a decision before the end of that
day.  He did not expect the Air Force to return him  to  duty  and  to
turn the issue over to the Air National Guard (ANG).  Nor was he aware
he would be subject  to  continued  evaluation  for  his  fitness  for
worldwide duty that could result in his discharge from the ANG.

In support of his  appeal,  the  applicant  has  provided  a  personal
statement and a copy of his medical file  pertinent  to  the  Informal
Physical Evaluation Board (IPEB), letters of  support,  email  trails,
and  an  early  advisory  from  HQ  AFPC/DPPD  regarding  his   AFBCMR
application and DPPD’s opinion of the IPEBs decision to forward  their
findings to the HQ ANG for further disposition.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant, a former member  of  the  Florida  Air  National  Guard
(FLANG), began his  military  career  on  28  January  1974.   He  was
progressively promoted to the grade of master sergeant (MSgt)  with  a
date of rank (DOR) of 15 November 2004.

On 1 December 2001, he was ordered to active duty under United  States
Code (U.S.C.) Title 10, Section 12302.  On 12 June 2002,  he  reported
to  the  Naval  Air  Station  (NAS)  hospital  in  Jacksonville,   FL,
complaining of knee pain as a possible result of a fall sustained  six
or seven weeks earlier.  On 24 September 2002, an  MRI  was  conducted
indicating an injury to his knee that required surgery to correct.  On
18 October 2002, he underwent arthroscopic surgery to repair his knee.
 On 22 April 2003, an Air  Force  Form  348,  LOD  Determination,  was
initiated by the  125  Medical  Group/SG  (125MEDGp/SG)  to  determine
whether or not his injury occurred in the line of duty  (LOD).   On  4
May 2003, his commander (125FW/CC) finds his injury to be in the  LOD.
In July 2003, 125MEDGp/SG  determined  the  applicant  should  meet  a
Medical Evaluation Board (MEB) to determine his  fitness  for  further
military service.  On 30  September  2003,  with  no  further  medical
treatment indicated as necessary, and continuation on  orders  pending
the results of an MEB not authorized by the Air Combat Command  (ACC),
he was demobilized pending results of the MEB.  On 3 October 2003, the
MEB was initiated and HQ ANG/SG  requested  an  additional  orthopedic
evaluation of the applicant.  On 2 March 2004, an active duty MEB  was
initiated at Randolph AFB, TX.  On 2 April 2004, he  was  referred  to
the Informal Physical Evaluation Board (IPEB) via an AF Form 618.   On
6 April 2004, the PEBLO assigned to his case consulted  the  applicant
by telephone to advise him on the IPEB process along with  his  rights
and benefits.  He advised the  PEBLO  he  would  submit  a  letter  of
exception to contest the MEB finding of permanent  limitation  due  to
knee injury and the concurrent recommendation he separate/retire  with
an injury  deemed  incurred  while  on  active  duty  and  permanently
aggravated by service.  The letter of exception was sent to  the  IPEB
on 6 April 2004 asking the IPEB to reconsider the original finding  of
medical disqualification due to injury.  He stated he had knee surgery
and it was successful as all damage to  his  knee  was  repaired.   He
contended he was able to do the duties he would be  assigned  with  no
problems.  Additionally, his  unit  commander  and  the  unit  medical
commander concurred with his letter of exception.  On 7 May 2004,  the
IPEB rendered a decision of “Fit – Return to Duty.”  On 19  May  2004,
HQ ANG/DPFOC advised HQ ANG/SG of the IPEB’s  findings  along  with  a
request for review of any  possible  duty  restrictions  that  may  be
levied against the applicant.  On 16 June 2004, HQ ANG/SG advised  the
unit SG that while he was found fit to return to duty he was to remain
in P4T status until 31 December 2004.  A request to  remove  him  from
P4T status would be resubmitted to HQ ANG/SG  for  further  evaluation
not later than 30 November 2004 or sooner should his medical condition
change.  On 21 June 2004, the Adjutant General of the Florida National
Guard (TAG-FL) was notified of the applicant’s status.   Consequently,
he was allowed to perform Inactive Duty Training (IADT)  but  was  not
permitted to perform his Annual Training (AT).  On  1  July  2004,  he
sought an orthopedic evaluation from the Veteran’s Administration (VA)
and, on 19 July 2004, he sought  an  orthopedic  evaluation  from  the
Jacksonville NAS hospital.  The applicant requested  he  be  medically
discharged or cleared for duty.  On 2 October 2004 and  based  on  the
results of the assessments from the VA and the NAS hospital from 1 and
19 July 2004, respectively, the unit SG determined he  should  undergo
another MEB to determine his fitness for worldwide duty.  On 5 October
2004, the unit SG submitted  a  letter  to  HQ  ANG/SG  asking  for  a
reevaluation as the VA and NAS assessments both indicated his  medical
condition had deteriorated.  On 28 October 2004, HQ ANG/SG advised the
unit SG the applicant’s medical condition had not improved and he  did
not meet medical standards for worldwide duty.  On 5 November 2004, HQ
ANG notified his unit that the applicant  was  medically  disqualified
from further military service and recommended for discharge.   He  was
notified of his rights under the Disability  Evaluation  System  (DES)
and acknowledged his receipt of the notification on 29 November  2004.
On  8  January  2005,  his  squadron  commander  submitted  a  fitness
determination worksheet for  HQ  ANG/SG  wherein  he  recommended  the
applicant be retained.  On 11 January 2005, his  immediate  supervisor
wrote a letter also recommending he be retained.  On 20 April 2005, he
wrote a letter of appeal to his unit  Air  Surgeon  requesting  he  be
allowed to continue his military duties.  He was  transferred  to  the
Retired Reserve effective 1 June  2005  after  having  served  for  26
years, 6 months, and 9 days.
_________________________________________________________________

AIR FORCE EVALUATION:

HQ ANG/DPFOC  recommends  denial.   DPFOC  notes  responsible  medical
personnel within the 125 MDG contend he was properly informed  of  the
MEB and IPEB processes as well as the possible results of Board action
on his eligibility  for  an  active  duty  disability  separation  and
benefits as well as possible VA benefits.  The 125 MDG states  he  was
briefed in October 2003, prior to the  MEB  and  his  medical  records
contain annotations dated early April 2004 that indicate  he  received
counseling by the PEBLO in accordance with Air Force  Instruction  36-
3212 regarding the IPEB.

DPFOC contends the exact  nature  and  extent  of  the  counseling  he
received in October 2003 and in April 2004 are not  annotated  in  the
available records and it is not possible to ascertain if the PEBLO  or
others definitively counseled  the  member  he  would  be  potentially
eligible for disability retirement or  severance  pay  should  he  not
contest the findings of the MEB that found  him  unfit  for  worldwide
duty.

Regarding his contention he was not given adequate time with which  to
consider his options after being briefed by telephone on 6 April  2004
and was told he had to make a decision that same day, DPFOC cites  AFI
44-157 wherein the applicant is allowed up to three  days  to  make  a
decision to submit a letter of exception to the  MEB.   The  applicant
was given that time frame by members of the 125 MDG to ensure  he  was
expediently counseled.  Thus, he made the decision to submit a  letter
of exception to the IPEB on that same day.

As for his contention he was unaware he  would  be  evaluated  further
regarding his fitness for continued worldwide duty, it is important to
note that further  review  by  Air  Reserve  Component  (ARC)  medical
authorities is a well established practice pursuant to AFI 44-157.  He
was placed in a temporary profile status by HQ ANG/SG via an  AF  Form
422 until 31 December 2004 to allow for  complete  assessment  of  his
continued fitness for worldwide duty; it is unlikely he was  not  made
aware that he would continue to be evaluated.

In summary, DPFOC contends he was  counseled  appropriately  regarding
the MEB/IPEB process.  His affirmative action  to  file  a  letter  of
exception clearly indicated his belief he was fit for continued  duty.
After being returned to duty, albeit with restrictions, he  ultimately
submitted evidence that  resulted  in  the  determination  of  medical
disqualification for further service.  DPFOC can find no  evidence  or
error or injustice in this case.

DPFOC’s complete evaluation, with attachments, is at Exhibit B.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the  applicant  on
28 October 2005 for review and comment within 30  days.   As  of  this
date, no response has been received by this office.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

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

2.  The application was timely filed.

2.  The application was not  timely  filed;  however,  it  is  in  the
interest of justice to excuse the failure to timely file.

3.  Insufficient relevant evidence has been presented  to  demonstrate
the existence of error or injustice.  After a thorough review  of  the
evidence of record and applicant's submission, we  are  not  persuaded
that his uncorroborated assertions of miscounseling, in and by itself,
sufficiently persuasive to override the rationale provided by the  Air
National  Guard.   Furthermore,  applicant  submitted  a   letter   of
exception to the IPEB assuring the Board that the surgery on his  knee
had been successful and he was able to do his duty with  no  problems.
The unit SG and the unit commander both concurred with his  letter  of
exception.  Consequently, the IPEB reversed their original decision to
recommend he be retired/separated and decided instead he be considered
fit and that he be returned to duty   Therefore,  in  the  absence  of
persuasive evidence to the contrary, we find no  compelling  basis  to
recommend granting the relief sought in this application.
_________________________________________________________________

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-
2004-03882  in  Executive  Session  on  18  January  2006,  under  the
provisions of AFI 36-2603:

      Ms. Kathleen F. Graham, Panel Chair
      Mr. Wallace F. Beard, Jr., Member
      Ms. Josephine L. Davis, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 3 Dec 04, w/atchs.
    Exhibit B.  Letter, ANG/DPFOC, dated 21 Oct 05, w/atchs.
    Exhibit C.  Letter, SAF/MRBR, dated 28 Oct 05.




                                   KATHLEEN F. GRAHAM
                                   Panel Chair