RECORD OF PROCEEDINGS 
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 
 
IN THE MATTER OF: DOCKET NUMBER:  BC-2009-04292 
 
  COUNSEL:  NONE 
 
  HEARING DESIRED:  YES 
 
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APPLICANT REQUESTS THAT: 
 
1.  His retirement grade of technical sergeant (E-6) be changed to his highest grade held of captain (O-3E). 
 
2.  If his retirement grade is changed as requested, he be allowed to change his participation in the Survivor Benefit Plan (SBP). 
 
3.  If his retirement grade is changed as requested, he receive payment for 30 days of leave. 
 
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APPLICANT CONTENDS THAT: 
 
1.  He served in the grade of captain for 6 plus years, but after 20 years of service, he was retired at his highest enlisted grade of technical sergeant(E-6) because of the 10-year officer rule, despite having serious medical issues that were not addressed. 
 
2.  Despite a long, dramatic and very painful free-fall in his overall health and physical capabilities, he was never evaluated by a medical board or given any adequate support to address his issues. 
 
3.  He retired in April 2008 due to a combination of severe on-duty injury complications suffered in December 2004 and degenerative arthritis in his lower back that started in 2002. 
 
4.  He discussed his medical issues with medical board personnel at Nellis AFB, NV and was told face to face that the Air Force would not medically board him since he was planning to retire and had less than a year left.   He now knows he should have been boarded anyway because he was on medical profiles for so long. 
 
5.  The realization that the medical board was a dead end did not bother him at the time because he was told by Military Personnel Flight personnel that a medical retirement would not change his circumstances and he would still be retired as an enlisted member. 
 
In support of his appeal the applicant submits a signed statement, various personnel documents, a DVD of his medical records, and a copy of documentation processed by the Department of Veterans Affairs pertaining to his disability claim.   
 
The applicant’s complete submission, with attachments, is at Exhibit A. 
 
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STATEMENT OF FACTS: 
 
The applicant, an active duty captain, retired from active duty effective 31 March 2008 in the grade of technical sergeant    (E-6) due to not meeting the requirements under federal law to retire as an officer.  
 
Pursuant to Title 10 United States Code, Section 8911, the applicant needed 10 years commissioned service to retire as an officer.  The 10 years could be waived to 8 years commissioned service until December 2008; however, the applicant only had 6 years and 1 month of commissioned service time at retirement. 
 
In accordance with AFI 36-3212, Physical Evaluation for Retention, Retirement and Separation, members permanently retired for disability or placed on the Temporary Disability Retired List (TDRL) retire in the grade in which serving on the date placed on the TDRL or on the date permanently retired for disability. 
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AIR FORCE EVALUATION: 
 
AFPC/DPSOR recommends denial of the applicant’s request to be retired in the grade of captain and to be paid leave at the officer rate.   
 
Since the applicant had not been twice non-selected for promotion, his retirement did not qualify as involuntary, which would have allowed payment of accrued leave at the officer rate.  The applicant applied for retirement under a provision considered voluntary, AFI 36-3203, Service Retirements, Para 3.7, which allows an officer to request to resign and retire, if eligible, in enlisted status only if the officer has an extreme hardship uncommon to other Air Force members.  The officer must first request a voluntary resignation by providing extensive evidence to the SAF concerning the hardship situation, must apply for an active duty enlistment and accession, must be approved for resignation to retire in enlisted status by the SAF, and must apply for retirement while in that active duty enlisted status.  The applicant’s request to retire in an enlisted status was voluntary. 
 
Email traffic shows that the applicant after speaking with personnel in Medical Standards elected to proceed with his voluntary retirement in enlisted status as it was likely he would have been returned to duty rather than found medically unfit. 
 
The applicant will be advanced to the grade of captain on the retired list on 21 March 2018, the date his time on active duty and the retired list totals 30 years. 
 
The complete DPSOR evaluation, with attachments, is at Exhibit C. 
 
AFPC/DPAMM makes no recommendation, but notes the applicant did not meet the requirements for referral to a Medical Evaluation Board. 
 
The applicant experienced significant medical issues limiting his ability to exercise and perform the fitness test.  He received extensive medical care for these issues, to include specialty consultations and physical therapy.  His medical profiles were generally for fitness restrictions with only two relative short periods of time where he was not world-wide qualified.  The applicant continued to work throughout his medical evaluation and treatment and his military providers did not refer his case to an MEB. 
 
Since the purpose of an MEB is to remove members who can no longer perform military duties because of physical or mental defect, members are referred to an MEB when they are identified with a disqualifying condition(s).  In this case, the applicant’s conditions were not disqualifying from active duty service since he was able to continue working.  In addition, as he approached his April 2008 retirement, his conditions did not overcome the Presumption of Fitness in AFI 41-210, Patient Administration Functions. 
 
The complete DPAMM evaluation is at Exhibit D. 
 
The BCMR Medical Consultant recommends denial of the applicant’s request for a medical retirement. 
 
The Medical Consultant refers the applicant to the following extracted statements from Department of Defense Instruction 1332.38, paragraphs E3.P3.3.3 and E3.P3.3.4, which respectively read:  Adequate Performance until Referral.  If the evidence establishes that the Service Member adequately performed his or her duties until the time the Service member was referred for physical evaluation, the member may be considered fit for duty even though medical evidence indicates questionable physical ability to perform duty.  Cause and Effect Relationship.  Regardless of the presence of illness or injury, inadequate performance of duty, by itself, shall not be considered as evidence of unfitness due to physical disability unless it is established that there is a cause and effect relationship between the two factors. 
 
The Medical Consultant acknowledges the applicant has received disability compensation issued by the DVA for his service-incurred medical conditions.  However, the military Disability Evaluation System only offers compensation for an illness when it is the cause for career termination.  Operating under a different set of laws, Title 38 USC, the DVA is authorized to offer compensation for any medical condition deemed service incurred or aggravated, without regard to its impact upon a service member’s retainability or fitness to serve. 
 
Although it appears the applicant’s motivation to retire may have been linked to his frustration with his physical capabilities or possible concerns for administrative action, whether weight or fitness test related, it was nonetheless elective on his part upon reaching the qualifying years for retirement.  The Medical Consultant otherwise has no evidence to substantiate that he was misinformed in his decision to submit his retirement or that he was not given adequate support to address his issues and opines the applicant has not met the burden of proof of an error or injustice that warrants a change in the narrative reason or basis for his retirement. 
 
A complete copy of the Medical Consultant’s evaluation, with attachment, is at Exhibit E. 
 
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APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 
 
Applicant states he was greatly disappointed with the BCMR Medical Consultant’s evaluation and felt his character was on trial.  He was extremely frustrated with the medical care he was provided in his last few years of service.  Between his ankle injury and chronic back pain, he came to a point where he could no longer serve.  He gave it all he had and has lots of witnesses that have provided testimony to that end.  From answers regarding his retirement grade/pay, to other administrative issues, he received lots of bad advice and information.  He retired from the Air Force without the required 10 years as an officer for reasons out of his control.  His health and mobility challenges were the single reason he retired.  He gave all he had in uniform for 20 years.  He only hopes the Board will see fit to recognize what’s right.   
 
The applicant’s complete letter is at Exhibit G. 
 
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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 provided to demonstrate the existence of an injustice that warrants the applicant’s retirement grade be changed to captain.  After a review of the facts and circumstances of this case, we have reached a conclusion different from the Air Force offices of primary responsibility and the BCMR Medical Consultant in this matter.  We are persuaded the applicant has provided the necessary and appropriate documentation to sustain his burden that he has been the victim of an injustice and that he overcame the presumption of fitness and should have been found unfit for further military service.  It appears to us the applicant experienced significant medical issues; however, for whatever reason he was not properly referred to an MEB.  We are satisfied by the evidence provided the applicant voluntarily applied for retirement because he had no other choice and if not due to his health limitations would have continued to serve.  In view of the above, we believe a preponderance of the evidence presented warrants favorable consideration of his request.  Additionally, based on the recommendation to retire him in the higher grade, we believe he should also be provided the option to change his participation in the Survivor Benefit Plan.  However, we do not find the evidence sufficient to recommend granting payment for 30 days of leave.  Therefore, we recommend the applicant’s 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 issue involved.  Therefore, the request for a hearing is not favorably considered. 
 
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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 28 March 2008, he 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 Right Knee Pain (degenerative joint disease), VASRD Code 5003, rated at 10 percent, Chronic Back Pain (L4-L5 degenerative disc disease), VASRD Code 5242, rated at 10 percent, Right Ankle Pain (status –post multiple sprains, with ligament laxity), VASRD Code 5271, rated at 10 percent and Left Hip Pain (with mild degenerative joint disease with limited painful motion), VASRD Code 5252, rated at 10 percent, for a combined compensable rating of 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 31 March 2008, he elected spouse and child coverage under the Survivor Benefit Plan (SBP) based on full retired pay. 
 
 c. On 31 March 2008 he was honorably discharged and on 1 April 2008 he was retired by reason of physical disability under the provisions of AFI 36-3212, rather than retired for length of service. 
 
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The following members of the Board considered this application AFBCMR Docket Number BC-2009-04292 in Executive Session on 9 September 2010, under the provisions of AFI 36-2603: 
 
 Panel Chair 
 Member 
 Member 
 
All members voted to correct the records as recommended.  The following documentary evidence was considered: 
 
    Exhibit A.  DD Form 149, dated 5 Nov 09, w/atchs. 
    Exhibit B.  Applicant's Master Personnel Records. 
    Exhibit C.  Letter, AFPC/DPSOR, dated 17 Mar 10, w/atchs. 
    Exhibit D.  Letter, AFPC/DPAMM, dated 19 Apr 10. 
    Exhibit E.  BCMR Medical Consultant, dated 21 Jul 10. 
    Exhibit F.  Letter, SAF/MRBR, dated 30 Jul 10. 
    Exhibit G.  Letter, Applicant, dated 6 Sep 10. 
 
 
 
 
 
 
                                    
                                   Panel Chair