RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

      IN THE MATTER OF:            DOCKET NUMBER:  BC-2008-01354
            INDEX CODE: 110.00
                 COUNSEL:  NONE
                                   HEARING DESIRED:  NO

________________________________________________________________

APPLICANT REQUESTS THAT:

His retirement be corrected to show that he was medically retired  with  at
least a 40% disability rating due to the amputation of his  leg  and  other
injuries.

_________________________________________________________________

APPLICANT CONTENDS THAT:

On 11 May 2005, he was involved in an automobile accident.  He  was  treated
for two broken ankles, a smashed left leg, broken  right  heel,  a  compound
fracture of his left arm, simple fracture of the right arm, broken  fingers,
cracked ribs and a multitude of other minor  injuries.   It  was  determined
his injuries were in the line of duty (ILOD).  His left leg was fitted  with
an external halo device.  He wore this device from May 2005  until  November
2005.  He spent two additional months in nursing home facilities because  he
could not care for  himself.   He  remained  in  a  wheelchair  due  to  his
bilateral leg injuries.  In  January  2006,  he  started  treatment  for  an
infection in his lower left leg.  Several medications  were  used  until  it
was  determined  he  had  contracted  Methicillin-Resistant   Staphylococcus
Aureus (MRSA).  An incomplete Medical Evaluation  Board  (MEB)  package  was
forwarded to the Informal Physical Evaluation Board (IPEB).   Not  having  a
full and complete package with his medical records did not  allow  the  IPEB
to fully understand the overall extent of his injuries.  In  July  2006,  he
was advised to  consider  amputation  of  his  lower  leg.   He  reluctantly
agreed.  After his leg was amputated he asked for another  MEB  due  to  the
loss of his left leg and the extensive damage  to  his  right  ankle,  arms,
fingers and other  injuries.   Had  the  IPEB  received  a  full,  complete,
accurate written picture of his medical condition, they would  have  made  a
determination that he be medically retired with a minimum  of  40%  for  the
loss of his leg.  Since retirement, he has had an  operation  on  his  right
foot and received a new left leg.  The injuries to his right ankle and  heel
should have  been  considered  just  as  unfitting  for  continued  military
service as the loss of his left leg.

In support of his request, the  applicant  submits  a  personal  statement,
copies of AF IMT 348, Line  Of  Duty  Determination,  a  copy  of  his  MEB
evaluation; AF IMT 618, Medical Board Report; AF Form 422, Physical Profile
Serial Report; AF Form  1185,  Statement  of  Record  Data;  AF  Form  356,
Findings and Recommended Disposition of United States  Air  Force  Physical
Evaluation Board; and other various documents associated with his request.

His complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

On 11 May 2005, he was involved in a head-on motor  vehicle  accident.   He
sustained multiple fractures of the upper/lower extremities and rib cage.

On 19 May 2006, he received retirement orders  relieving  him  from  active
duty effective 31 December 2006.

On 25 May 2006, an MEB convened and referred  his  case  to  the  IPEB  for
diagnosis of bilateral lower leg fractures.

On 26 June 2006,  the  IPEB  reviewed  his  case  and  found  him  fit  and
recommended his return to duty.

On 4 August 2006, his left leg was amputated below the knee.

On 18 October 2006, his retirement orders were rescinded and he was  placed
on medical hold.

In December 2006, he requested to be released from medical hold  to  return
to  a  climate  presumably  more  conducive  to  his  safe   recovery.   He
acknowledged  understanding  of  the  “possible  ramifications”  for  being
released from medical hold.

On 31 December 2006, he was retired in the grade of colonel.

He served a total of 33  years,  7  months  and  12  days  of  satisfactory
service.

_________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/DPPD recommends denial.  DPPD states that in accordance with AFI 36-
3212, the board applied the presumption of fitness rule and determined  his
medical condition did not overcome the presumption.  It was also noted that
HQ ANG/SG makes the final determination of whether or not an  Air  National
Guard member is medically qualified for worldwide duty and deployable.   By
law, a member may appeal a recommended disposition if he/she is found unfit
and is being involuntarily separated  or  retired  for  disability.   While
members can currently request to appeal a fit finding;  that  was  not  the
case at the time he was boarded.  The preponderance  of  evidence  reflects
that no error or injustice occurred during the disability process.

The complete DPPD evaluation is at Exhibit B.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant responded stating DPPD missed the mark.  DPPD cites  AFI  36-
3212, as it applies to  presumption  of  fitness  and  states  he  did  not
overcome that presumption.  The AFI states the PEB will  presume  a  member
fit if he or she has been able to do his or her duty satisfactorily in  the
12 months before a scheduled retirement.  The presumption of fitness may be
overcome within the presumptive period if an acute, grave illness or injury
occurs that would prevent the member from performing further duty if he  or
she were not retiring.  He was involved in a serious traffic  accident  and
never returned to his previous  duties  in  the  20  months  prior  to  his
retirement.  When he met the IPEB, they did not see his medical records and
were not informed he was unsuccessfully fighting the MRSA infection in  his
left leg.  The IPEB did not know he was facing an amputation that  occurred
on 3 August 2006 while on active duty.  The IPEB was not  informed  he  had
not worked since his accident and would not return due to the  constant  IV
medications,  pending  amputation,  additional  operations  and   follow-on
rehabilitation before his forced retirement.   A  full  evaluation  of  his
injuries should have  been  delayed  until  his  amputation  and  condition
stabilized.  He should have received a minimum of  40%  per  Department  of
Veterans Affairs (DVA) guidelines, for the loss of an arm or leg.  He  does
not fault the Formal PEB.  Their decision was based on the  faulty  picture
painted by Buckley AFB who had not treated him for  any  of  his  injuries,
infections, amputation or rehabilitation.   He  is  now  forced  to  use  a
wheelchair 50 percent of the day and  will  never  recover.   He  does  not
understand how the Air Force states he was not  disabled  in  the  line  of
duty.  He  lost  his  leg  and  was  forced  to  retire  before  completing
rehabilitation and receives no compensation or disability rating.

His complete response is attached at Exhibit D.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

The BCMR Medical Consultant  recommends  denial.   The  Medical  Consultant
states the applicant survived a serious head-on accident.   Within  the  12
months of his projected retirement  date,  he  underwent  an  MEB  and  was
returned to duty.  At the time of the return to duty decision he was  still
undergoing rehabilitative measures, with the expectation of a  satisfactory
outcome.  His case was reviewed  by  the  IPEB  which  found  him  fit  and
recommended his return to duty; a decision which he accepted, although  his
commanding officer indicated that a return to duty decision  would  have  a
negative effect on the Air Reserve Personnel Center and Air National Guard.
 The Medical Consultant opines, however, that the recurrence of  his  wound
drainage and the ultimate requirement for  a  below-knee  (B-K)  amputation
represents an acute  worsening  of  an  existing  condition  affecting  his
overall health such that a repeat MEB and referral to an IPEB  should  have
occurred.  Had he had an MEB at the point of recurrence of his infection or
the amputation, it is conceivable, although unlikely, that  he  might  have
been placed on the Temporary Disability Retired List (TDRL) due to relative
instability of his medical condition at the time.  However, the Board  must
consider the shared culpability of his  election  to  remove  himself  from
medical hold, which  then  prevented  the  Air  Force  from  conducting  an
appropriate reevaluation and determination of his fitness to  serve.   This
decision was his choice and does not now represent an injustice or error in
the processing of his retirement action.  The Medical Consultant empathizes
with his reported desire to timely  depart  what  he  perceived  to  be  an
environment non-conducive to the safe recovery of himself and  his  spouse;
but finds no error or  injustice  in  the  processing  of  his  retirement.
Further, addressing his fitness to serve at the time of his retirement, the
fact that he  received  a  B-K  amputation  would  not  have  automatically
rendered him unfit for continued military service; noting that some persons
with a favorable functioning prosthesis may be capable of performing  their
military  duties,  following  an  appropriate  period   of   post-operative
recovery.  Thus it is conceivable that he could have been again  found  fit
for a return to duty despite his amputation.

The complete Medical Consultant evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the BCMR Medical Consultant evaluation was forwarded to  applicant
on 1 August 2008 for review and response.  As of this date, no response  has
been received by this office (Exhibit C).

_________________________________________________________________

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 an error  or  injustice.   After  a  thorough  review  of  the
evidence of record and  the  documentation  submitted  in  support  of  his
appeal, we find no evidence  which  would  lead  us  to  believe  that  the
applicant’s disability processing and the final  disposition  of  his  case
were in error or contrary to the governing  Air  Force  instructions  which
implement the law.  As noted by the BCMR Medical Consultant, the  applicant
elected to  remove  himself  from  medical  hold  and  retire,  which  then
prevented the Air Force from conducting  an  appropriate  reevaluation  and
determination of his fitness  to  serve.   Therefore,  we  agree  with  the
opinion and recommendation of the BCMR Medical  Consultant  and  adopt  his
rationale as the basis for our conclusion that the applicant has  not  been
the victim of an error of  injustice.   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  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-2008-
01354 in Executive Session on 16 September 2008,  under  the  provisions  of
AFI 36-2603:

                 Mr.  Joseph D. Yount, Panel Chair
                 Mr.  Grover L. Dunn, Member
                 Mr.  Richard K. Hartley, Member

The following documentary evidence was considered:

Exhibit A.  DD Form 149, dated 25 February 2008, w/atchs.
Exhibit B   Letter, AFPC/DPPD, dated 2 May 2008.
Exhibit C.  Letter, SAF/MRBR, dated 23 May 2008.
Exhibit D.  Letter, Applicant, dated 3 June 2008.
Exhibit E.  Letter, BCMR Medical Consultant, dated 14 July 2008.
Exhibit F.  Letter, SAF/MRBR, dated 1 August 2008.




            JOSEPH D. YOUNT
            Panel Chair