RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBER:  BC-2007-01247
                                             INDEX CODE:   108.04, 110.03,
                                               131.09, 145.06
      XXXXXXXXXXXXXXXXXX                COUNSEL:  NONE

                                             HEARING DESIRED:  NO

________________________________________________________________

APPLICANT REQUESTS THAT:

He be granted a military retirement as a disabled veteran with the  rank  of
technical sergeant (E-6).

He be retroactively reinstated into the Air National Guard (ANG)  until  his
Medical Evaluation Board (MEB) is finalized.

________________________________________________________________

APPLICANT CONTENDS THAT:

Air Force Instruction (AFI)  36-3212,  Physical  Evaluation  for  Retention,
Retirement, and Separation, paragraph 4.5, states  that  members  undergoing
an MEB must not be retired, discharged, or released  from  active  duty  for
any reason until notification is received from  the  Secretary  of  the  Air
Force (SECAF).  No such notification has been  given  concerning  his  right
knee problems.

There are ongoing errors and injustices.  He had  a  difficult  time  as  he
left active duty.  He was fired from  his  civilian  job  because  of  these
errors and injustices for the very things they convened [sic] found  he  did
not commit.  This case deserves a second look  and  merits  actions  in  his
favor as nothing can be gained by hiding these matters from scrutiny.

In support of his appeal, he  has  provided  copies  of  his  NGB  Form  22,
National Guard Bureau Report of Separation and Record  of  Service,  his  DD
Form 214, dated 3  March  2004,  a  12  August  2004 letter  from  the  89th
AMDS/SGPFB concerning his placement in  MEB  channels,  a  29  October  2003
letter from OSD/P&R addressing  Personnel  on  Medical  Hold,  and  numerous
documents from his military medical records.

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

________________________________________________________________



STATEMENT OF FACTS:

The applicant enlisted in the ANG on 23 November 1984, and was activated  on
1 February 2003  in  support  of  OPERATION  IRAQI  FREEDOM  (OIF).   On  20
February 2003, he was deployed to a  classified  OCONUS  location,  and,  on
26 February 2003, it was determined that he should be returned to  his  home
station due to an old versus new anterior  cruciate  ligament  tear  in  his
right knee.  He was subsequently returned to his home station  and  remained
on active duty.  Following a course of conservative  treatment  and  limited
duty  profiles,  he  underwent  knee  surgery  on  31  July  2003,  and  was
subsequently released from active duty on 3 March 2004.

On 4 August 2004, the applicant was evaluated for psychiatric illness by  an
MEB.  The MEB concluded that the applicant did  not  currently,  or  in  the
past, have any psychiatric symptoms, and although he has had  conflict  with
several supervisors, these  have  not  been  the  result  of  a  psychiatric
illness.  The MEB stated that he was medically  acceptable,  recommended  he
be returned to duty without psychiatric limitations, and if he continued  to
have conflict, administrative channels should be pursued over a  psychiatric
MEB.

In January 2007, the applicant was notified that he  was  being  recommended
for an administrative discharge due to his failure to comply  with  National
Guard Bureau (NGB) dental requirements.  His AF Form 422,  Physical  Profile
Serial Report, dated 8 January 2007, states that his  previous  profile  for
non-compliance had expired on 17 November 2006, he remained in Dental  Class
4, and that NGB members with a known dental condition who refuse  to  comply
with a request for evaluation are considered medically unfit  for  continued
military duty.  On 29 January 2007,  the  applicant  applied  for  voluntary
transfer  to  the  Retired  Reserve,  effective  29  March  2007,  and   was
subsequently transferred to the Retired Reserve, awaiting pay at age 60,  in
the grade of staff sergeant (E-5.)  His date of birth is 20 April 1961  (age
46) and he completed 22 years, 4 months, and 5 days of net service.

________________________________________________________________

AIR FORCE EVALUATION:

The 113th MSF/DP recommends denial of any relief.  Per  Air  National  Guard
Instruction (ANGI) 36-2502,  Section  1.1.2,  “prior  to  promotion  to  any
grade, the immediate  commander  must  first  recommend  the  airman.   This
recommendation must be based on a period of  time  sufficient  to  permit  a
substantive evaluation of the airman’s  total  performance.”   There  is  no
evidence in the applicant’s military personnel  records  to  substantiate  a
recommendation for promotion to the grade of technical sergeant  (E-6).   In
addition, in accordance with section 1.3.7  of  the  same  ANGI,  he  became
ineligible for promotion after he  voluntarily  requested  transfer  to  the
Retired Reserve on 29 January 2007  after  receiving  notice  of  his  being
recommended for an administrative discharge due to  his  failure  to  comply
with NGB dental evaluation requirements.  Since he has already retired,  any
further  disability  processing  should  now  be  accomplished  through  the
Department of Veterans Affairs (DVA).

The 113th MSF/DP evaluation is at Exhibit C.

NGB/SGPD recommends denial of applicant’s  request  for  reinstatement  into
the ANG to complete Disability Evaluation System (DES) processing.   He  was
in the process of being administratively discharged due to  his  failure  to
comply with NGB dental evaluation requirements, and he  can  pursue  further
disability processing through the DVA.

The NGB/SGPD evaluation is at Exhibit D.

NGB/A1PS recommends denial of any relief, and concurred with the  advisories
of the 113th MSF/DP and NGB/SGPD.

The ANG/A1PS evaluation is at Exhibit E.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant stated that a  response  was  not  necessary  if  a  fair  and
objective consideration of his family and his  behalf  has  been  concluded,
and furnished copies of a personal statement, a VA Patient Profile, dated  7
December 2007, an 8 December 2007 memo  to  Attorney  General  Gerstenfield,
and an e-mail trail with SAF/MRBR.

The applicant’s complete response, with attachments, is at Exhibit G.

________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

With the collective presumption  of  regularity  in  the  execution  of  the
applicant’s  discharge  and  transfer  to  the  Retired  Reserve,  and   the
available medical evidence of record, the BCMR Medical Consultant is of  the
opinion no change in the records is warranted.

The applicant requested and received a transfer to the  Retired  Reserve  in
lieu of an administrative discharge.  Based upon the knee pathology  (severe
degenerative joint disease) prior to  his  transfer,  it  is  reasonable  to
conclude that he may not have been able to adequately perform the rigors  of
his security forces occupation, particularly under the  austere  operational
conditions and physical stressors confronting all  members  of  today’s  Air
and Space Expeditionary Force.  Additionally, although he was released  from
active duty in  2003  to  perform  his  civilian  occupation,  a  U.S.  Army
orthopedic surgeon recommended that he  be  placed  on  “permanent  profile”
restrictions  as  early  as  24 April  2003.   If  the  aforementioned  duty
restrictions were present for at least 12 months, then  an  MEB  would  have
been undertaken.  However, his case never entered  the  Military  Disability
Evaluation  System  (MDES);  therefore,   he   would   not   have   received
notification from the SECAF or his designee regarding his fitness  to  serve
or the disposition of his case.  Had the applicant undergone an MEB for  his
right knee condition, his  case  likely  would  have  been  referred  to  an
Informal Physical  Evaluation  Board  (IPEB)  for  a  determination  of  his
fitness to serve and, had he been found unfit for duty, the IPEB would  then
have determined an  appropriate  disability  rating  under  the  appropriate
disability rating code.  Based upon a preponderance of medical evidence,  to
include  his  clinical  history,  physical  assessment,   and   radiographic
reports, it is likely he would have been  found  unfit  for  duty,  but  the
severity of his condition would not likely have risen to the  threshold  for
the medical retirement he desires under  the  applicable  disability  rating
code choices.

Nonetheless, the record does reflect  that  approximately  11 months  later,
the applicant did undergo an  assessment  for  an  MEB.   However,  the  MEB
Narrative Summary did not include a discussion of his knee ailment, but  was
instead limited to an assessment of a possible  psychiatric  disorder.   His
case was not referred  for  adjudication  by  a  Physical  Evaluation  Board
(PEB), and there is no accompanying medical  documentation  to  reflect  his
inability to perform his military duties,  or  to  perform  drill  for  pay,
between the dates of  this  MEB  Narrative  Summary  and  the  time  of  his
election to transfer to the Retired Reserve in January 2007.   Although  the
record reflects that officials within the Physical  Evaluation  Board  (PEB)
Liaison Office briefed him on  MEB  procedures,  there  is  no  accompanying
evidence that any formal MEB procedures ever took place.

Addressing the applicant’s eligibility for disability  compensation  through
the MDES, although his injury was considered to be in the line-of-duty,  the
record reflects that a significant element of his  knee  pathology  was  not
the result of his 26 February 2003  knee  injury,  but  was  due  to  severe
degenerative arthritis, a condition that existed  prior  to  his  activation
(EPTS) on 1 February 2003.  In such cases, an EPTS factor  would  have  been
taken into consideration in  the  disability  rating  computation  for  that
aspect of his knee condition that appears to have been above and beyond  the
expected natural progression of his degenerative  arthritis.   Specifically,
the  evidence  of  “severe  degenerative  joint   disease   and   osteophyte
formation” identified in his health record as early as June 2003 are  highly
indicative of a longer standing degenerative  disease  process  that  likely
predated his activation and injury in February,  2003.   Nonetheless,  since
he was reportedly asymptomatic and presumed fit  to  deploy  on  1  February
2003, it can be concluded his subsequent chronic knee  pain  is  principally
the result of a de novo injury and the subsequent permanent  aggravation  of
his  pre-existing  arthritic  condition.   While   it   is   reasonable   to
hypothesize that his physicians may have errantly elected not to  pursue  an
MEB for his knee condition in 2003, it is not reasonable  to  conclude  that
he was retained in drill status for over three years thereafter, only to  be
transferred  to  the  Retired  Reserve  upon  notification  of   involuntary
discharge action, which raises doubt as to  his  true  ability  to  function
despite his knee condition.

The MDES is chartered to maintain a fit and vital  fighting  force  and  can
only, by law, offer compensation  for  the  medical  condition(s)  that  cut
short a service member’s career, and then only to  the  degree  of  severity
present  at  the  time  of  final  disposition.    Documents   reflect   the
applicant’s knee condition was not the  cause  for  cutting  short  his  Air
Force career; rather, it  was  his  election  to  transfer  to  the  Retired
Reserve.  Nonetheless, although he did not receive  disability  compensation
through the MDES, he is eligible to receive disability compensation  through
the DVA for any service-connected medical condition without  regard  to  its
proven or demonstrated impact upon the performance of military duties.

Should the Board elect the alternative hypothesis that the applicant  should
have  undergone  an  MEB  for  his  knee  condition,  a  recommendation  for
discharge  with  severance  pay  with  a  20 percent  disability  rating  is
appropriate.  The BCMR Medical Consultant finds this disability  arrangement
to be consistent with  the  10  percent  disability  rating  for  “traumatic
arthritis” and separate disability rating of 10 percent for  an  unspecified
“knee condition” awarded to him as shown  on  a  presumably  DVA  outpatient
medical statement  dated  7  December  2007.   Additionally,  since  he  had
achieved at least 20 satisfactory years at the time of his transfer  to  the
Retired Reserve, he would still have the  choice  of  accepting  either  the
medical discharge with severance pay or a  length-of-service  retirement  at
age 60, but not both.

The BCMR Medical Consultant’s evaluation is at Exhibit H.

________________________________________________________________

APPLICANT'S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATION

A complete copy of the AFBCMR Medical Consultant  evaluation  was  forwarded
to the applicant on 8 January 2008, for review and comment, within 30  days.
 However, 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.

3.  Insufficient relevant evidence has been  presented  to  demonstrate  the
existence of  error  or  injustice.   We  took  notice  of  the  applicant's
complete submission in judging the merits of the  case;  however,  we  agree
with the opinions and recommendations of the Air Force  offices  of  primary
responsibility and adopt their rationale as the  basis  for  our  conclusion
that the applicant has not been the victim of an error  or  injustice.   The
applicant’s contentions are noted; however,  he  voluntarily  requested  and
received a transfer to the Retired Reserve  in  lieu  of  an  administrative
discharge, and there is no evidence in his  military  medical  records  that
his medical case was ever entered into  the  MDES  prior  to  his  voluntary
retirement.  The MDES can only, by law, offer  compensation,  to  include  a
medical retirement, for the medical condition (s) that cut short  a  service
member’s career, and then only to the degree  of  severity  present  at  the
time  of  final  disposition.   Documents  reflect  the   applicant’s   knee
condition was not the cause for cutting short his Air Force career;  rather,
it was his election to transfer  to  the  Retired  Reserve.   We  note  that
although he did not receive disability compensation through the MDES, he  is
eligible to receive disability compensation through the DVA for any service-
connected medical condition without regard to  its  proven  or  demonstrated
impact upon the performance of military duties.  Additionally, there  is  no
evidence in the applicant’s military personnel records  to  substantiate  he
was ever recommended for promotion  to  the  grade  of  technical  sergeant.
Therefore,  in  the  absence  of  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  Docket  Number  BC-2007-01247
in Executive Session on 13 March 2008, under the provisions of AFI 36-2603:

                       Mr. Thomas S. Markiewicz, Chair
                       Ms. Karen A. Holloman, Member
                       Ms. Josephine L. Davis, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 20 Apr 07, w/atchs.
    Exhibit B.  Automated Records Management System Extract.
    Exhibit C.  Letter, 113th MSF/DP, dated 13 Jul 07, w/atchs.
    Exhibit D.  Letter, NGB/SGPD, dated 19 Oct 07.
    Exhibit E.  Letter, NGB/A1PS, dated 6 Nov 07.
    Exhibit F.  Letter, SAF/MRBR, dated 16 Nov 07.
    Exhibit G.  Letter, Applicant, dated 8 Dec 07, w/atchs.
    Exhibit H.  Letter, BCMR Medical Consultant, dated 6 Jan 08.
    Exhibit I.  Letter, SAF.MRBR, dated 8 Jan 08.




                                   THOMAS S. MARKIEWICZ
                                   Chair