RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:	DOCKET NUMBER:  BC-2013-00741

		COUNSEL:  NO

		HEARING DESIRED:  NO 


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APPLICANT REQUESTS THAT:

His honorable discharge be changed to a medical retirement.  

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APPLICANT CONTENDS THAT:

He injured his back twice during training while serving in the Montana Air National Guard (MT ANG) between Oct 93 and Dec 93.  Due to the injury, he was unable to continue his duties with the ANG or continue his civilian career in law enforcement.  Rather than going through the medical evaluation board (MEB) process, he was just discharged.  The Department of Veteran’s Affairs (DVA) has rated him as having a 60 percent service-connected disability, and he is receiving DVA benefits for 100 percent unemployability.  Rather than being discharged because he couldn’t continue his duties, he should have been sent to an MEB and medically retired.  

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

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STATEMENT OF FACTS:

The applicant entered the MT ANG on 28 Jan 93, after serving in the U.S. Army and U.S. Army Reserve.  

On 26 Aug 94, the applicant was honorably discharged from the ANG, and was credited with 1 year, 6 months, and 29 days of reserve service this period. 

The remaining relevant facts pertaining to this application are described in the letters prepared by the Air Force offices of primary responsibility, which are attached at Exhibits C and E.    

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AIR FORCE EVALUATION:

NGB/SGPF recommends denial, indicating there is no evidence of an error or injustice.  Between 1 Nov 93 and 16 Dec 93, the applicant presented with a history of back pain, no trauma identified or incident report included.  The service member was advised to consult orthopedics.  He deferred this exam, and was again advised on 16 Dec 93 to follow-up at his home unit.  No further treatment records were included or available for review while this applicant was a member with the MT ANG.  The applicant separated from the MT ANG in 1993.  Due to the lack of service treatment records since 1993 or a completed Air Force Form 348, Line-of-Duty Determination, to substantiate a definitive diagnosis, and having submitted no statement from a credentialed military health provider indicating the condition was disqualifying and required a medical evaluation board (MEB), there is no evidence or support or warrant a medical retirement. 

A complete copy of the NGB/SGPF evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 14 Apr 13 for review and comment within 30 days (Exhibit D).

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ADDITIONAL AIR FORCE EVALUATION:

The BCMR Medical Consultant recommends denial, indicating there is no evidence of an error or injustice.  Addressing the applicant’s expressed 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 of career termination; and then only for the degree of impairment present at the time of separation and not based on future occurrences.  Although the documentation indicates the applicant presented with back pain during a period of active military service and was placed on profile restrictions, totaling 12 days, this evidence alone would have been [and is now] insufficient to trigger an MEB or to now justify a retroactive MEB.  This is particularly relevant in the context of the absence of clinical follow-up, as advised prior to the applicant’s release from service; and his apparent awareness of the limited medical capabilities of his servicing medical unit, under his signature.  The Medical Consultant concedes the medical evidence of Dec 93 would suggest the need for further follow-up care, as a minimum, or an appropriate final Service medical disposition; even to support retention on active duty orders under today’s standards, until either returned to duty without restrictions or processed through the DES.  However, there is no stated or claimed reason or records as to why the applicant did not timely seek the advised follow-up care and evaluations after completion of his training and, therefore, the stand-alone service progress notes of record are insufficient to suggest the applicant should have been placed on medical hold [not allowed to separate] for processing through the military DES.  The applicant’s DVA rating decisions were based upon clinical findings from examinations conducted well after his release from service; and thus, are neither reflective of his fitness to serve or near the severity of his medical condition at the “snap-shot” time of his release from service.  Indeed, the latest service clinical evidence would suggest that had the applicant been processed through the military DES based upon the medical evidence of 1993, his disability rating would have fallen short of the rating that would qualify for medical retirement.  The DVA, on the other hand, operating under Title 38 U.S.C, 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 retainability, fitness to serve, narrative reason for separation, or the intervening or transpired period since the date of separation.  This is the reason why an individual can be found fit for release from military service, and yet sometime thereafter receive a compensation rating from the DVA for conditions determined to be the service-connected, but which were not proven militarily unfitting or the cause of separation.  Thus, a medical condition that was not unfitting while in service, and was not the cause of separation or retirement, which may later progress in severity causing disability, or which was merely determined service connected by the DVA, is not a basis to retroactively grant a military medical retirement.  The Medical Consultant opines the applicant has not met the burden of proof of an error or injustice. 

A complete copy of the BCMR Medical Consultant evaluation is at Exhibit E.

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APPLICANT'S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 12 Dec 13 for review and comment within 30 days.  In response the applicant submitted an expanded personal statement explaining his history of back pain, the specific injury for which he contends medical retirement is warranted, and the impact of his injury on his life (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 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 error or injustice.  We took notice of the applicant’s complete submission in judging the merits of the case, to include his rebuttal response to the advisory opinion; however, we do not find the documentation presented sufficient to conclude the applicant has been the victim of an error or injustice.  While the Board notes the applicant did suffer a back injury while serving on active duty, we agree with the opinion and recommendation of the AFBCMR Medical Consultant that the applicant did not provide sufficient documentation to support his assertion that he should have been processed through the DES or that his discharge was the result of his medical condition.  Therefore, in the absence of evidence to the contrary, we conclude that no basis exists for us to recommend granting the relief sought in this application.

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THE BOARD DETERMINES THAT:

The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application.

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The following members of the Board considered AFBCMR Docket Number BC-2013-00741 in Executive Session on 13 Feb 14, under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member



The following documentary evidence pertaining to AFBCMR Docket Number BC-2013-00741 was considered:

	Exhibit A.  DD Form 149, dated 6 Feb 13, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records
Exhibit C.  Letter, NGB/SGPF, dated 25 Mar 13.
Exhibit D.  Letter, SAF/MRBR, dated 14 Apr 13.  
Exhibit E.  Letter, BCMR Medical Advisor, dated 11 Dec 13.
      Exhibit F.  Letter, SAF/MRBC, 12 Dec 13.
      Exhibit G.  Letter, Applicant, undated. 




                                   
                                   Panel Chair