RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2009-00798 

 COUNSEL: 

 HEARING DESIRED: YES 

 

_________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

His records be corrected to reflect that he received a medical 
discharge or medical retirement, rather than an administrative 
discharge based on minor disciplinary infractions. 

 

_________________________________________________________________ 

 

THE APPLICANT CONTENDS THAT: 

 

He should have been medically retired from the Air Force and not 
discharged. He had a spinal cord injury and multiple sclerosis 
(MS) while in the Air Force and the Department of Veterans 
Affairs (DVA) rated him 100 percent disabled due to these 
conditions. 

 

In support of the appeal, the applicant submits copies of a 
corporate award and rating data sheet, DD Form 293, Application 
for the Review of Discharge from the Armed Forces of the United 
States, and a radiology report. 

 

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

 

_________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

The applicant enlisted in the Regular Air Force on 5 Jan 95, and 
was progressively promoted to the grade of airman first class. 

 

On 17 Jun 97, he was notified of his commander's intent to 
recommend him for a general (under honorable conditions) 
discharge for minor disciplinary infractions. 


The commander stated the following reasons for the proposed 
discharge: 

 

a. On 2 Mar 96, the applicant received DD Form 1408, Armed 
Forces Traffic Ticket, for being stopped by law enforcement for 
driving with expired temporary license plates. 

 

b. On 28 Oct 96, he received a Letter of Counseling, for 
writing two insufficient fund checks on his checking account. 

 

c. On 16 Nov 96, the applicant received a Letter of 
Reprimand (LOR), for failing to report as scheduled for annual 
home station training. 

 

d. On 21 Mar 97, he received a LOR for being apprehended by 
law enforcement for wrongful appropriation of another dormitory 
resident’s VCR. 

 

e. On 24 Mar 97, he received a LOR, in addition to an 
unfavorable information file, on 28 Mar 97, for committing a 
dormitory violation by allowing his cousin to remain in his 
dormitory room while he was deployed to the missile field. 

 

f. On 2 Apr 97, he received a LOR, for failure to report 
for a pre-departure briefing prior to assuming his post at the 
India Missile Alert Facility. 

 

g. On 2 May 97, he received a LOR, for failure to go to a 
scheduled appointment. 

 

h. On 15 May 97, he received a LOR, for failing to maintain 
sufficient funds in his checking accounts. 

 

He was advised of his rights in this matter and after consulting 
with counsel submitted a statement in his own behalf. The 
discharge case was reviewed by the base legal office and they 
recommended the applicant be discharged with a general (under 
honorable conditions) discharge without probation and 
rehabilitation. 

 

The discharge authority approved the separation and directed the 
applicant be discharged with a general (under honorable 
conditions) discharge. On 27 Jun 97, under the provisions of 
AFI 36-3208, Administrative Separation of Airmen, he was 
discharged for Misconduct. He received a general (under 
honorable conditions) discharge characterization and a Reentry 
(RE) Code of 2B, “Separated with a General or UOTHC Discharge,” 
which bars immediate reenlistment. He completed a total of 
2 years, 5 months, and 22 days of active service. 

 

_________________________________________________________________ 

 


AIR FORCE EVALUATION: 

 

AFPC/DPSOS recommends denial of the applicant’s request for a 
change to his discharge characterization. AFPC/DPSOS indicates 
the applicant was counseled on numerous occasions for his 
behavior and afforded an opportunity to overcome his 
deficiencies. Despite attempts to counsel the applicant, he 
continued to fall below normal Air Force standards. 

 

AFPC/DPSOS states the discharge case does reveal that the 
applicant complained of back pain as a result of an injury he 
received in Oct 96. In his response to the proposed discharge, 
he claimed that he could not meet Air Force standards because he 
injured his back in Oct 96 and has been experiencing intense 
pain. The base legal office stated the applicant’s claim does 
not justify an honorable discharge because there is no causal 
connection between back pain and failing to maintain sufficient 
funds, wrongful appropriation, or dorm violations. 

 

According to AFPC/DPSOS, there was a sufficient basis for the 
applicant’s discharge from the Air Force. The discharge record 
does reveal he received a separation medical evaluation, dated 
24 Jun 97, and he was not referred for further evaluation and was 
apparently medically cleared for separation. AFPC/DPSOS defers 
to the appropriate medical authorities for comment as to whether 
further evaluation was appropriate at the time of the applicant’s 
discharge. 

 

AFPC/DPSOS states that based on the documentation on file in the 
master personnel records, the discharge, to include his 
characterization of service, was consistent with the procedural 
and substantive requirements of the discharge instruction and was 
within the discretion of the discharge authority. He did not 
provide any evidence of an error or injustice that occurred in 
the discharge processing. 

 

The complete AFPC/DPSOS evaluation is at Exhibit C. 

 

The BCMR Medical Consultant recommends denial of the applicant’s 
request to change his reason for discharge to a medical 
retirement. The Medical Consultant indicates that he is happy 
the applicant is receiving proper care and support for his MS. 
Without copies of the applicant’s medical records, he cannot 
comment on the adequacy of evaluations or treatment received 
during military service. 

 


However, had the applicant been diagnosed with MS prior to 
separation, received a Medical Evaluation Board (MEB), and was 
found unfit to serve by a Physical Evaluation Board (PEB), he 
would have still been confronted concurrently with the approved 
administrative discharge and the medical discharge action. Such 
cases are resolved by the Secretary of the Air Force Personnel 
Council (SAFPC) in a process referred to as a “dual action” 
review and analysis. The task of the SAFPC would be to select 
which reason for separation and service characterization is 
appropriate. In conducting such an analysis, a search for any 
causal or mitigating relationship between the service member’s 
act of misconduct and the unfitting medical condition and its 
relationship between the service member’s acts of misconduct and 
the unfitting medical conditions is undertaken. SAFPC may also 
consider the comparative gravity of the disciplinary infractions 
and the identified medical condition in making its recommended 
Secretarial action. 

 

There are medical conditions that are known to affect human 
behavior and cognitive functioning, however, the Medical 
Consultant found insufficient evidence to support a nexus between 
the applicant’s various acts of misconduct and a medical ailment, 
particularly at the time he committed his offenses. The Medical 
Consultant acknowledges the opinions put forth are not a 
substitute for an MEB, PEB, or SAFPC decisional body. 
Nonetheless, he opines that even if the applicant had been 
diagnosed with MS prior to his separation and his case was 
referred to SAFPC, he would have been vulnerable for execution of 
the approved involuntary administrative discharge. 

 

Noting the gravity of the applicant’s illness and the 
comparatively minor disciplinary infractions he committed, the 
Medical Consultant believes that SAFPC may have agonized to some 
degree over its decision, but noting that MS earns a minimum 
disability rating of 30 percent rendering the applicant eligible 
for a medical retirement. Despite the fact that the applicant 
was not placed on medical hold or was not diagnosed with MS prior 
to separation, the Medical Consultant finds the burden of proof 
of an error or injustice has not been met to warrant a change of 
the record. The Board retains the authority to upgrade the 
applicant’s discharge as a matter of clemency. No evidence, 
other than our knowledge of the applicant’s illness, which is 
reportedly 100 percent disabled, and the Air Force’s inability to 
make the diagnosis prior to his discharge are available to 
bolster this position. 

 

 

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

 

_________________________________________________________________ 

 


APPLICANT’S REVIEW OF AIR FORCE EVALUATION: 

 

He submits copies of his medical records and his DVA Rating, 
which the Medical Consultant did not have to properly review and 
consider his request to change his discharge to a medical 
retirement. 

 

His medical records reveal that he was on medical profile from 
all duties due to severe medical injury and sickness due to him 
falling in Oct 96 until his separation in Jun 97. He was 
restricted from walking, standing, or lifting. The medical 
conditions he sustained while on active duty prevented him from 
serving in the Air Force and affected his ability to work in the 
civilian sector. As such, his discharge should be changed to a 
medical retirement. 

 

In regard to the administrative infractions, the tags on his 
vehicle were expired. However, his home state of Pennsylvania 
allows active duty military members during wartime to drive 
vehicles with expired tags. Further, the other administrative 
infractions are related to his medical condition that caused 
mental impairment and prevented him from carrying out his normal 
duties. As to the VCR, he does not recollect the incident, but 
is sure that he paid for the damaged VCR and apologized to the 
owner. He disputes the Medical Consultant’s opinion noting the 
Medical Consultant did not have access to his medical records and 
submits his medical records for review. 

 

Although the Medical Consultant acknowledges the Air Force did 
not diagnose him with MS, did not send his case before a MEB, and 
notes that he would have been eligible for a military retirement 
at 30 percent due to his MS, the Medical Consultant overlooked 
his spinal cord injury to which he receives a 70 percent rating 
from the DVA. He did not state what the Air Force would have 
rated this condition had he been properly diagnosed. The Medical 
Consultant also overlooked his mental condition which directly 
affected his concentration, and for which he is currently rated 
at 50 percent for depression secondary to MS. 

 

His medical records should reveal that he was restricted from any 
extended walking, standing, or lifting because he was unable to 
do so. He is not sure why the military doctors did not realize 
that he was facing the initial attack of MS for the burning eye 
attack he had, which is a well known initial sign of MS. 

 

He understands the process to diagnose MS could take up to two 
years. His military records indicates that he had difficulty 
walking, standing, and lifting, and was restricted from these 


duties by a medical profile, while being prescribed steroids and 
elavil. His condition while on active duty, warrants that he be 
retired with a 100 percent disability rating from the Air Force. 

 

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

 

_________________________________________________________________ 

 

ADDITIONAL AIR FORCE EVALUATION: 

 

The BCMR Medical Consultant recommends the applicant’s records be 
changed to reflect that he was retired permanently, by reason of 
a disability, with a combined disability rating of 40 percent. 

 

The BCMR Medical Consultant states that in order for an 
individual to receive consideration for a medical retirement, 
first there must be evidence of a medical condition that 
precluded the performance of military service of a sufficient 
degree of severity and duration, that it required assessment by a 
MEB and subsequent referral to a PEB for a determination of the 
individuals fitness to serve. Personnel referred through such a 
system, namely the Military Disability Evaluation System (MDES), 
have usually been issued duty restricting profiles, depicting the 
ailment and limitations, with a start and end date of the 
restrictions. 

 

First addressing the medical administrative aspects of the 
applicant’s case, the records reflects that he was issued and re-
issued several duty profile documents on a recurring basis, 
between Nov 96 and the time of his separation. A review of these 
documents of record reflects that, despite the restrictions 
imposed to lifting and prolonged standing, the only ones 
depicting a significant adverse impact “P-4” upon the applicant’s 
worldwide qualification were issued only on 24 Oct 95, due to 
dental defects, after which he became dentally re-qualified for 
worldwide duty on 5 Jan 96 and on 15 Jan 97, due to back strain, 
with an expiration date of 15 Feb 97, and the ‘P-3” issued in 
Jun 97. Although the applicant’s physicians entered only “1s” on 
the majority of profile documents issued or renewed beginning on 
21 Nov 96 and ending on 15 Jan 97, the day his first “P-4” 
profile was issued, from a practical standpoint the Medical 
Consultant opines the actual written duty restrictions imposed, 
no standing greater than 30 minutes, then later reduced to no 
greater than 15 minutes, issued on 20 Dec 96, no walking greater 
than ¼ mile, and no lifting greater than 10 to 20 pounds would 
have, more likely than not, precluded worldwide qualification at 
the time, and thus, were not accurately represented by the “1s” 
entered in the profile documents. 


Nonetheless, the military clinical practitioner is challenged 
with balancing his patient’s response to treatment and conducting 
periodic follow-up evaluations, with the goal of resolution and 
maintaining employment to the extent possible, before 
contemplating MEB referral. For example, there is intervening 
evidence of optimism, or at least uncertainty, for the 
applicant’s eventual recovery, as shown by the pattern of month-
to-month profiles issuances and renewals, as opposed to a greater 
uninterrupted period of time, and in the progress note dated 
13 Dec 96, reflecting the physician declined renewal of the 
profile, with the written expectation that the applicant’s back 
pain will resolve with physical therapy. 

 

Addressing the applicant’s disciplinary issues, the Medical 
Consultant concedes the medications prescribed to the applicant, 
Elavil at bedtime and muscle relaxants, could have affected his 
alertness at a given time. Whether these were the direct reason 
for the applicant’s failure to go to a scheduled appointment, 
failure to report to a pre-departure briefing, and failure to 
report as scheduled for annual home station training cannot be 
definitively or factually determined, particularly 
retrospectively. The Medical Consultant recommends rendering the 
benefit of doubt in favor of the applicant in these instances, 
noting one of the applicant’s physicians offered a statement for 
the applicant’s commander to this effect. That then leaves the 
applicant’s four instances of failure to maintain sufficient 
funds in his checking account, dormitory violation, and wrongful 
appropriation of a fellow dormitory resident’s VCR. Although 
central nervous system multiple sclerosis can affect some 
cognitive reductions, there is, otherwise, no evidence of record 
of the existence of a cognitive deficit, mood disorder, or 
inability to distinguish the difference between right and wrong. 
Consequently, despite the applicant’s ultimately diagnosed MS, 
the Medical Consultant found no definitive medical mitigation for 
the latter offenses, one of which could have resulted in an 
Article 15. 

 

Despite the aforementioned analysis, the Medical Consultant 
opines the applicant’s physicians should have further pursued the 
extremity paresthesias and possibly should have conducted a brain 
MRI scan prior to the applicant’s release from military service. 
Unfortunately, the applicant’s physicians were led down a path of 
treating what was believed to be a relatively benign 
musculoskeletal ailment. While missing the applicant’s diagnosis 
could be considered an error of omission, others could argue the 
standard of care was met, noting the etiology of his initial 
presenting complaints of back pain and the fact that the pain was 
attributed to blunt trauma experienced during his Oct 96 fall 
down a flight of stairs, to include the initial MRI scan of the 
lumbar spine which showed no evidence of nerve root or cord 
impingement. Therefore, the Medical Consultant opines that had 
the applicant undergone an MEB and was found unfit for MS and/or 
back pain, he would have still been vulnerable for a decision 
executing the approved administrative discharge. At the same 


time, the SAFPC could very well have considered the relative 
serious nature of the applicant’s illness in comparison to his 
administrative infractions, and recommended a medical basis for 
separation. 

 

Since, in accordance with the VA Rating Schedule, MS earns a 
minimum 30 percent disability rating, the applicant would have 
been medically retired with at least a 30 percent disability 
rating. Additional consideration would be made for including the 
applicant’s chronic low back pain in the disability rating 
computation. Utilizing the VA Rating Schedule, in effect at the 
time of the applicant’s separation, the Medical Consultant opines 
that a 20 percent disability rating, under VA Code 5295, in 
effect at the time, most closely matches the clinical findings of 
his health care professionals. Since the applicant had no 
evidence of herniated discs as a cause of his symptoms, then 
utilizing the VA code for intervertebral disc syndrome, VA Code 
5293, in effect at the time, would not have been appropriate. 
When combining, not adding, the 20 percent rating with the 
minimum 30 percent rating for MS, VA Code 8018, a 40 percent 
disability rating would be achieved. The Medical Consultant 
acknowledges the applicant has since received a separate 
disability rating award for his lower extremity weakness. 
However, based upon the clinical findings nearest to the 
applicant’s date of separation, the Medical Consultant opines the 
applicant’s lower extremity paresthesias would have been subsumed 
in the minimum 30 percent disability assigned to his underlying 
disease. Similarly, there was no evidence of a diagnosable 
depression at the time of separation and, thus, would not have 
been considered an unfitting condition. 

 

Finally, the Medical Consultant is sensitive to the fact the 
applicant has since suffered from a progression of his medical 
condition, to the point of being rated at 100 percent disabled by 
the DVA. The applicant has also received disability ratings for 
depression and other associated impairments attributed to his MS. 

 

The Medical Consultant concludes that a material error in the 
applicant’s clinical diagnosis resulted in an injustice, by 
depriving him of a full review through the MDES and dual action 
analysis by SAFPC. 

 

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

 

_________________________________________________________________ 

 


APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: 

 

He disagrees with the Medical Consultant’s recommendation that he 
be medically retired with a 40 percent disability rating. 
Although his medical records were not properly noted probably due 
to the inability of his physicians to diagnose his MS, what is 
noted was his inability to walk, stand, or lift, which is 
restricted on all of his medical profiles from Oct 96 until his 
separation in Jun 97. Further, he suffered with severe eye 
burning while on active duty, which is noted in his medical 
records as possible keratitis, but later discovered by the DVA to 
be optic atrophy secondary to MS, and which he receives a 30 
percent disability rating. 

 

Despite his depression not being properly treated or diagnosed 
while on active duty, it was noted that he was prescribed an 
anti-depressant (Elavil), and the DVA rated his depression at 
50 percent disabling and continues to treat him for this 
condition secondary to MS. All of the conditions combined, 
warrants medical retirement from the Air Force with a 100 percent 
disability rating. 

 

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

 

_______________________________________________________________ 

 

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. After a 
thorough review of the available evidence, we are persuaded that 
relief is warranted. We note the BCMR Medical Consultant opines 
that a material error in the applicant’s clinical diagnosis 
deprived him of a full review through the MDES and a dual-action 
analysis by SAFPC and recommends he be permanently retired by 
reason of disability with a combined disability rating of 
40 percent. While the applicant disagrees with the 40 percent 
disability rating, we do not find the applicant’s assertions, the 
documentation submitted in support of his appeal, to include his 
rebuttal responses to the additional Air Force evaluations, 
sufficiently persuasive to override the rationale provided by the 
BCMR Medical Consultant. Therefore, the applicant has failed to 
sustain his burden of establishing that any additional relief is 
warranted. Accordingly, we recommend that his records be 
corrected to the extent indicated below. 


 

4. The applicant's case is adequately documented and it has not 
been shown that a personal appearance with or without counsel 
will materially add to our understanding of the issues involved. 
Therefore, the request for a hearing is not favorably considered. 

 

_________________________________________________________________ 

 

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 26 Jun 97, he was found unfit to perform the 
duties of his office, rank, grade, by reason of physical 
disability, incurred while he was entitled to receive basic pay; 
that the diagnoses in his case were chronic low back pain 
(lumbosacral strain), VASRD code 5295; rated at 20 percent; and 
multiple sclerosis (MS), VASRD code 8018, rated at 30 percent; 
that the total combined compensable percentage was 40 percent; 
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. On 27 Jun 97, he was released from active duty and was 
permanently retired by reason of physical disability, with a 
40 percent compensable disability rating, effective 28 Jun 97. 

 

 c. At the time of his retirement, he was not married, 
had no eligible children, and declined coverage under the 
Survivor Benefit Plan. 

 

 d. On 14 Jan 98, he elected child-only coverage under the 
Survivor Benefit Plan, based on full retired pay. 

 

_________________________________________________________________ 

 

The following members of the Board considered Docket Number BC-
2009-00798 in Executive Session on 17 Jun 10, under the 
provisions of AFI 36-2603: 

 

 , Panel Chair 

 , Member 

 , Member 

 


All members voted to correct the record, as recommended. The 
following documentary evidence was considered under Docket Number 
BC-2009-00798: 

 

 Exhibit A. DD Form 149, dated 2 Jun 09, w/atchs. 

 Exhibit B. Applicant's Master Personnel Records. 

 Exhibit C. Letter, AFPC/DPSOS, dated 26 Oct 09. 

 Exhibit D. Letter, BMCR Medical Consultant, dated 24 Feb 10. 

 Exhibit E. Letter, SAF/MRBR, dated 1 Mar 10. 

 Exhibit F. Letter, Applicant, undated. 

 Exhibit G. Letter, BMCR Medical Consultant, dated 28 Apr 10. 

 Exhibit H. Letter, SAF/MRBR, dated 3 May 10. 

 Exhibit I. Letter, Applicant, undated. 

 

 

 

 

 Panel Chair