RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
	
IN THE MATTER OF:		DOCKET NUMBER: BC-2012-02750
				COUNSEL:  NONE
 				HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

1.  His records be corrected to show that he was medically discharged.

2.  He receive a medical retirement.

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APPLICANT CONTENDS THAT:

On 6 May 2012, he was advised that he was honorably released at the end of his enlistment but was not allowed to reenlist.  

When he was leaving Dover AFB, Delaware, he was told that he had a code on his paperwork preventing him from reenlisting due to medical reasons.  

Upon his separation from the Air Force, he received from the Department of Veterans Affairs a 40 percent disability rating which is now rated at 60 percent.  

He should have been medically retired.

In support of his request the applicant provides a personal statement.   

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

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STATEMENT OF FACTS

On 10 Jun 1993, the applicant enlisted in the Air Force.  On 3 Apr 2002, he was honorably discharged with a reentry code of 2X, which denotes “First Term, Second Term, or Career Airman Nonselected for Reenlistment” and a separation code of JBK, which denotes “Completion of Required Active Service.”

According to the available evidence, in Mar 1999, the applicant was evaluated by a civilian orthopedist for bilateral knee pain with a resulting clinical diagnosis of Patellofemoral Pain Syndrome (PFPS). 

In Apr 1999, he received a referral Enlisted Performance Report (EPR) for disobeying lawful orders from his supervisor.  He was counseled on three occasions and he was also not recommended for reenlistment. 

In Feb 2000, the applicant received an Article 15 and another referral EPR for misuse of his government travel card.  

In Aug 2001, his commander sent a memorandum to the Medical Evaluation Board (MEB) discussing the applicant's inability to adequately perform his assigned duties and inability to deploy due to his medical conditions. 

On 20 Sep 2001, a MEB convened for the purpose of continued active duty.  The MEB recommended referral to the Informal Physical Evaluation Board (IPEB).  

On 3 April 2002, the applicant was honorably discharged from active duty after serving 8 years, 9 months and 23 days.

In Sep 2011, the Department of Veterans Affairs (DVA) rated his bilateral PFPS with chrondroplasty at 10 percent for each knee utilizing diagnostic Rating code 5260.  

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AIR FORCE EVALUATION:

The BCMR Medical Advisor recommends the narrative reason for separation be changed to a medical separation, under the authority of Air Force Instruction 36-3212, Physical Evaluation for Retention, Retirement and Separation, with a combined disability rating of 20 percent (10 percent for each knee).  

A review of the applicant’s medical records show the applicant was diagnosed with PFPS in his left knee and that he had left knee surgery in Apr 2001.

On 14 Aug 2001, his commander initiated a MEB based on the applicant’s inability to perform his duties and deploy.  The MEB recommended referral to the IPEB; however, there is no supporting documentation that this recommendation was accomplished.

In Oct 2001, the applicant was found worldwide qualified and was returned to duty, without limitations.

It is likely the applicant’s knee condition was a significant factor in his persistent and recurring knee pain which impacted his ability to perform his duties.  Given the absence of clinically significant radiological or physical evidence of severe pathology by the military or civilian orthopedist and the applicant’s functional capacity, the medical reviewer recommends a 20 percent disability. 

Addressing the applicant’s implicit desire for a medical retirement, the military Disability Evaluation System (DES), established to maintain a fit and vital fighting force, can by law, under Title 10, United States Code (U.S.C.), only offer compensation for those service incurred diseases or injuries which specifically rendered a member unfit for continued active service and were the cause for career termination; and then only for the degree of impairment present at the “snap-shot” time of final military disposition and not based on future occurrences.  The applicant has presented evidence that his knee ailment precluded the reasonable performance of his military duties, as first determined through his commander’s input to the MEB.  Addressing the applicant’s other medical conditions, operating under a different set of laws (Title 38, U.S.C.), with a different purpose, the DVA is authorized to offer compensation for any medical condition determined service incurred, without regard to [and independent of] its demonstrated or proven impact upon a service member’s fitness for continued service or narrative reason for release from military service; nor the intervening or transpired period since the date of separation.  With this in mind, Title 38, U.S.C., which governs the DVA compensation system, was written to allow awarding compensation ratings for any condition with a nexus with military service.  This is the reason why an individual can be found fit for release from active military service for one reason and yet sometime thereafter receive a compensation rating from the DVA for one or more other conditions found service-connected, that was not proven militarily unfitting during service or at the time of release from military service.  The DVA is also empowered to conduct periodic reevaluations for the purpose of adjusting the disability rating awards (increase or decrease as the level of impairment from a given service connected medical condition may vary (improve or worsen) over the lifetime of the veteran.  Thus, the fact that the severity of the applicant’s medical condition(s) may have worsened [now reported at 60%] over time is not relevant to his clinical status at the time of separation.  

The complete medical evaluation is at Exhibit C.  

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APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

He understands that the undiagnosed illness should be taken into accountability for MEB ratings; however, he was never advised that he was up for an MEB, nor was he advised of his MEB rights. He was never given the opportunity to meet an MEB which could have found him fit for duty in a different section of the Air Force.  He understands that the PEB looks at medical conditions that are career ending; however, certain sections did not do what they should have done and he was not given any options.



The applicant’s letter, with attachments, is at Exhibit D.

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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 not timely filed; however, it is in the interest of justice to excuse the failure to timely file. 

3.  Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice to warrant changing his discharge to a medical retirement.  We took notice of the applicant's complete submission in judging the merits of the case and do not find that it supports a determination that he should be medically retired.  While the applicant’s response to the BCMR Medical Advisor is noted, he has provided no evidence which, in our opinion, successfully refutes the assessment of his case by the BCMR Medical Consultant.  Therefore, we agree with the recommendation of the BCMR Medical Advisor and adopt his opinion as our findings in this portion of his case.  In view of the above and absence evidence to the contrary we find no basis to favorably consider the applicant’s request.

4.  Notwithstanding the above, sufficient relevant evidence has been presented to demonstrate the existence of error or injustice warranting a medical discharge.  In coming to our determination we reviewed the complete evidence of record, in particular, the advisory prepared by the BCMR Medical Advisor who recommends changing the applicant’s records to show that he was discharged for medical reasons.  Accordingly, we agree with the recommendation of the BCMR Medical Advisor and adopt the rationale expressed as the basis for our decision that the applicant has been the victim of either an error or an injustice.  As such, we recommend the applicant’s records be corrected to show that he was medically separated with a combined disability rating of 20 percent (10 percent for each knee).  Therefore, in the interest of justice, we recommend his records be corrected to the extent indicated below. 

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THE BOARD RECOMMENDS THAT:
      
The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that:

	a.  On 1 Apr 2002, 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 Patellofemoral Pain Syndrome (PFPS), a condition in which is rated at a compensable percentage of 20 percent under the Veterans Administration Schedule for Rating Disabilities (VASRD) code 5260; 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 cause by an instrumentality of war.   

	b.  On 3 Apr 2002, he was discharged with severance pay with a 20 percent compensable disability rating for PFPS.

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The following members of the Board considered Docket Number BC-2012-02750 in Executive Session on 17 September 2013, 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 6 Jun 2012, w/atch.
    Exhibit B.  Applicant’s Military Service Records
    Exhibit C.  Letter, SAF/MRBC, dated 15 Jan 2013, w/atch. 
    Exhibit D.  Letter, Applicant, undated, w/atch.   
    




 
					Panel Chair