RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2008-01824
            INDEX CODE:  108.00
            COUNSEL:  NONE
            HEARING DESIRED:  NOT INDICATED

_________________________________________________________________

APPLICANT REQUESTS THAT:

The applicant is the widow of the deceased former servicemember.

She requests:

      1.  The Medical Evaluation Board (MEB) review started  in  early  2007
for her husband be completed to determine  entitlements  and  benefits  that
may have occurred from the MEB decision.

      2.  Her husband’s records be corrected to show that he  was  medically
retired on the date of his death, 24 Jan 08.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Her late husband was  in  the  process  of  undergoing  a  MEB;  however,  a
procedural delay of over six months  kept  his  case  from  further  review.
When he died of cardiac arrest on 24 Jan 08, the MEB  process  was  stopped.
His knee replacement and subsequent medical issues would have resulted in  a
medical retirement  and  she  would  have  received  medical  and  financial
benefits.

In support of  the  application,  applicant  submits  email  communiqué  and
documentation extracted from the former member’s medical records.

The applicant's complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The decedent was a Reservist who served 29 years, 9 months and 29 days.

The remaining relevant facts pertaining to this application, extracted  from
the applicant’s military records, are contained in the letters  prepared  by
the appropriate offices of the Air Force at Exhibits C and D.

_________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/DPSD recommends  denial.   DPSD  states  the  Disability  Evaluation
System (DES) never received a referral  to  the  Physical  Evaluation  Board
(PEB) and therefore could not have given the member a medical retirement  or
discharge.

The complete DPSD evaluation is at Exhibit C.

HQ AFPC/JA recommends denial.  JA states the decedent was an Air  Force  IMA
with more than 20 years of service.   He  was  serving  in  an  active  duty
status on orders from 4 Dec 07 to 22 Feb 07.  His orders  were  amended  and
extended  several  times  during  2007  while  he  dealt  with  two  medical
conditions; sleep apnea and a total knee replacement.  On  18  Jul  07,  his
Commandant submitted  a  letter  stating  that  his  medical  condition  had
negatively impacted the squadron’s mission and  recommended  he  undergo  an
MEB and subsequently be medically retired.  The MEB was  initiated  but  was
delayed for six months.  On 24 Jan  08,  the  servicemember  suffered  fatal
cardiac arrest prior to completion of the MEB.

The final service order indicates the decedent had over 31 years of  service
for basic pay purposes and just less than 30 years of service for  Title  10
U.S.C 12732 purposes.

His records indicate he suffered a knee  injury  in  Mar  05  while  playing
basketball in the base gymnasium while serving as an active duty  reservist.
 His injury was determined to have occurred in the Line of Duty  (LOD).   He
had knee surgery on or about 25 Mar  05  to  repair  his  ligament  but  the
medical documentation stated that a full knee replacement would probably  be
necessary in the future.

He was diagnosed with sleep apnea in 2007 while on active duty  orders.   An
LOD was conducted on this medical condition and concluded that  it  occurred
while in the line of duty; however, the  LOD  board  non-concurred  in  this
finding and held that the condition existed prior to service (EPTS).  On  25
Oct 07, the approving authority held that this illness was EPTS.   In  early
2007, he was evaluated for  a  total  knee  replacement.   The  surgery  was
scheduled for 14 May 07,  and  his  orders  were  extended  to  Jun  07  for
rehabilitation and  recovery.   However,  correspondence  dated  20  Sep  07
indicates that the former servicemember may have delayed his  surgery  until
Sep 07 to determine whether he needed orders.  In  fact,  the  email  states
the entire MEB process would  have  to  be  reaccomplished  because  of  the
addition of the sleep apnea condition.  This  correspondence  was  prior  to
the final LOD board finding that the sleep apnea was EPTS.

There is nothing to verify whether the MEB had ever begun  to  consider  his
case and no evidence to support that the MEB was ever started or delayed.

JA notes the applicant has not sufficiently established any legal basis  for
relief.  While the record supports an inference that an MEB began  there  is
no evidence supporting a conclusion  that  the  military  failed  to  timely
process the MEB.  In fact,  the  only  reasonable  conclusion  is  that  the
former service member delayed the MEB by  delaying  his  surgery  to  ensure
whether orders were necessary.  Although he cannot  be  faulted  for  making
this financial decision, it in no way supports a finding of any  illegal  or
improper processing of his MEB by the Air Force.

JA states it appears the Air Force properly referred the member to  the  MEB
and events beyond anyone’s control resulted in his  passing  away  prior  to
the MEB’s completion.  The MEB  cannot  be  completed  now  as  the  primary
purpose of the MEB is to determine the member’s fitness to  return  to  duty
and he is now deceased.

JA opines the possibility that the member’s attempt to add the  sleep  apnea
to the MEB delayed the process; however, it is unclear how the  LOD  board’s
subsequent finding of EPTS might have impacted  the  MEB  process.   If  the
member delayed his MEB for the purpose of adding the sleep apnea,  he  would
bear responsibility for any delay resulting therefrom.

JA concludes injustices have long  been  defined  in  the  BCMR  context  as
treatment by military authorities “that shocks the sense of justice, but  is
not technically illegal.”  There was no legal error in this case.


The complete JA evaluation, with attachments, is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant believes her case should be granted due to all the  years  her
husband served.  She states he worked hard to get  this  decision  finalized
before he passed away.  He believed he deserved medical retirement  for  all
the pain he suffered during the last years before his death.

Her complete response is at Exhibit F.

_________________________________________________________________

BCMR MEDICAL CONSULTANT EVALUATION:

The BCMR Medical  Consultant  recommends  medically  retiring  the  deceased
service member with a 30 percent disability rating, effective 24 Jan 08.

The Medical Consultant states the applicant  had  at  least  one  legitimate
medical condition, right knee arthoplasty, which he  strongly  opines  would
have formed the basis for termination of his military career had an MEB  and
referral to a PEB been  conducted  prior  to  his  death.   The  applicant’s
efforts to assure all  of  his  medical  and  administrative  concerns  were
answered should not be viewed as a deliberate act for secondary gain, or  as
an error or injustice on the part of the  government.   His  untimely  death
was certainly not anticipated by either medical officials treating  him  nor
those responsible for carrying out his MEB; particularly since the cause  of
death was unrelated to  the  principal  line  of  duty  knee  ailment  under
review.  With reference to his knee arthoplasty, had he been found unfit  by
a PEB, he would likely have received a 30  percent  disability  rating,  the
minimum rating for a total knee arthoplasty  as  outlined  in  the  Veterans
Administration Schedule for Rating Disabilities.

In conclusion, the  Medical  Consultant  is  well  aware  that  despite  the
established performance timeliness for conducting MEBs, occasionally  delays
in timely processing may occur  among  Reserve  component  units  due  to  a
variety of causes, e.g., availability of consultants,  deployments,  lengthy
LOD processing, service members  errantly  deactivated.   Judging  from  the
email traffic of record, it appears  that  medial  administrative  officials
were very interested in meeting the applicant’s needs up to the time of  his
death.  Therefore, while there appears to be no error or  injustice  in  the
processing of his MEB, the Board may elect to render a finding in  favor  of
the applicant based upon the much  earlier  identification  of  his  medical
impairment (June 05) and the posturing of an MEB (22 Nov 06), the  continued
symptoms despite the multiple surgical interventions,  the  full  year  that
transpired (2007) while holding a disqualifying profile, and the 10  Jan  08
measurements of his knee range of motion taken for the impending MEB.

The complete BCMR Medical Consultant’s evaluation is at Exhibit G.

_________________________________________________________________

APPLICANT'S REVIEW OF BCMR MEDICAL CONSULTANT EVALUATION:

A copy of the additional BCMR Medical Consultant’s evaluation was  forwarded
to the applicant on 19 Dec 08 for review and comment within 30 days.  As  of
this date, this office has received no response.

_________________________________________________________________

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 an error or injustice.  While there  is  no  way  to  determine
with certainty if the applicant’s medical condition would have  resulted  in
his separation from military service, we took notice  of  the  BCMR  Medical
Consultant’s assessment that his right knee arthroplasty would  have  formed
the basis for termination of  his  military  career  via  the  MEB  and  PEB
process and his being found  “unfit”  would  likely  have  resulted  in  his
receipt of the minimum 30 percent disability rating;  thereby  resulting  in
his eligibility for a medical retirement.   Therefore,  we  agree  with  the
opinion and recommendation of the BCMR Medical Consultant and recommend  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 22 Jan 08, the applicant was found unfit to perform the  duties
of his office, rank, grade, or rating  by  reason  of  physical  disability,
incurred while he was entitled to receive basic pay; that the  diagnosis  in
his case was status-post right total-knee arthroplasty,  a  condition  which
is rated at a compensable percentage of 30%, under  Veterans  Administration
Schedule for Rating Disabilities (VASRD)  code  5055;  that  the  degree  of
impairment was permanent; that the disability was  not  due  to  intentional
misconduct or willful neglect; that the disability was not  incurred  during
a period of unauthorized absence; and that the disability was  not  received
in the line of duty as a direct result of armed conflict  or  caused  by  an
instrumentality of war.

      b.  He was discharged from active duty on 22 January 2008, and  on  23
January 2008, he was permanently retired by reason  of  physical  disability
with a 30 percent compensable disability rating, in the grade  of  Technical
Sergeant.

      c. On 22 January 2008, he  elected  full  and  immediate  spouse  only
coverage (Option CA) under  the  Reserve  Component  Survivor  Benefit  Plan
(RCSBP), naming Louise Blevins as spouse beneficiary based on  full  retired
pay.

_________________________________________________________________

The following members of the Board considered this application in  Executive
Session on 5 February 2009, under the provisions of AFI 36-2603:


      Ms. Patricia J. Zarodikiewicz, Vice Chair
      Ms. Barbara J. Barger, Member
      Mr. Alan A. Blomgren, Member

The following documentary evidence was considered for AFBCMR  Docket  Number
BC-2008-01824:

      Exhibit A.  DD Form 149, dated 7 May 08, w/atchs.
      Exhibit B.  Applicant's Master Personnel Records.
      Exhibit C.  Letter, HQ AFPC/DPSD, dated 14 Jul 08.
      Exhibit D.  Letter, HQ AFPC/JA, dated 7 Aug 08.
      Exhibit E.  Letter, SAF/MRBR, dated 22 Aug 08.
      Exhibit F.  Letter, Applicant, not dated, w/atchs.
      Exhibit G.  Letter, BCMR Medical Consultant, dated 16 Dec 08.
      Exhibit H.  Letter, SAF/MRBR, dated 19 Dec 08.




                                  PATRICIA J. ZARODKIEWICZ
                                  Vice Chair

                         DEPARTMENT OF THE AIR FORCE
                                WASHINGTON DC


[pic]
Office Of The Assistant Secretary


AFBCMR BC-2008-01824




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 APPICANT  be corrected to show that:

            a.  On 22 Jan 08, the applicant was found unfit to perform the
duties of his office, rank, grade, or rating by reason of physical
disability, incurred while he was entitled to receive basic pay; that the
diagnosis in his case was status-post right total-knee arthroplasty, a
condition which is rated at a compensable percentage of 30%, under
Veterans Administration Schedule for Rating Disabilities (VASRD) code 5055;
that the degree of impairment was permanent; that the disability was not
due to intentional misconduct or willful neglect; that the disability was
not incurred during a period of unauthorized absence; and that the
disability was not received in the line of duty as a direct result of armed
conflict or caused by an instrumentality of war.

      b.  He was discharged from active duty on 22 January 2008, and on 23
January 2008, he was permanently retired by reason of physical disability
with a 30 percent compensable disability rating, in the grade of Technical
Sergeant.

      c. On 22 January 2008, he elected full and immediate spouse only
coverage (Option CA) under the Reserve Component Survivor Benefit Plan
(RCSBP), naming Louise Blevins as spouse beneficiary based on full retired
pay.





     JOE G. LINEBERGER

     Director

     Air Force Review Boards Agency