RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2013-01985
	XXXXXXX	COUNSEL:  XXXXXXXX
		HEARING DESIRED: YES

________________________________________________________________

APPLICANT REQUESTS THAT:

1.  Her Reserve retirement be changed to a medical retirement 
based on her physical and mental conditions with a 50 percent 
disability rating or greater.

2.  She receive any additional relief the Board feels is 
appropriate.

________________________________________________________________

APPLICANT CONTENDS THAT:

She should have been allowed a Medical Evaluation Board (MEB) 
for her worsening service-connected illnesses.  At a minimum, 
she should have been extended on active duty to accommodate this 
process.

She was approved for a 10 percent disability rating; however, 
this was done before she underwent back surgery and had 
significant outpatient and inpatient psychiatric treatment; her 
conditions should be rated higher.

Another MEB was initiated as a result of mental and physical 
deterioration subsequent to her first MEB/Physical Evaluation 
Board (PEB).  

Her mental and physical ailments are service-connected; were 
present and diagnosable during her last year of service and 
prevented her continued service.  She was hospitalized for 
severe depression and suicidal ideations, a condition which 
mandates MEB processing in accordance with AFI 48-123, Medical 
Examinations and Standards, para 5.3.12.5.  This is in 
addition to her previous MEB/PEB determination of 10 percent 
severance pay.

Air Force regulations and instructions clearly require that 
servicemembers suffering from service-connected illness and 
injury should not be discharged or released from active 
service until medical processing is complete.

In support of her appeal, the applicant provides a 21-page 
brief from counsel, with attachments; copies of NGB Form 22, 
Report of Separation and Record of Service, issued in 
conjunction with her 21 Feb 11 transfer to the Retired Reserve; 
DD Form 214, Certificate of Release or Discharge from Active 
Duty, issued in conjunction with her 23 Feb 11 release from 
active duty; Reserve Order EK-2605, retirement order, dated 
16 Feb 11, and various other documents associated with her 
request.

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

________________________________________________________________

STATEMENT OF FACTS:

On 24 Feb 98, the applicant, a member of the Colorado Air 
National Guard (COANG) entered active duty as an Active Guard 
Reservist (AGR).  

On 29 Sep 08, while serving as an AGR, a MEB was conducted and 
the applicant was diagnosed with degenerative disc disease of 
L5-S1 and referred to the Informal PEB (IPEB).  

On 21 Feb 11, the applicant was released from active duty 
and transferred to the Non-Affiliated Reserve Section (NARS).  
On 22 Feb 11, the applicant was placed on the USAF Reserve 
Retired List awaiting pay at age 60.  She was credited with 
20 years, 11 months, and 6 days of service for retired pay.

________________________________________________________________

AIR FORCE EVALUATION

NGB/SGPA recommends denial.  SGPA notes that the applicant had 
an MEB that started in 2008.  The AF Form 618, Medical Board 
Report, states the applicant's disqualifying condition was 
degenerative disc disease.  The narrative summary for the 
applicant’s MEB included a mental health narrative summary with 
her additional mental health conditions.   The applicant 
stated that she was initially found unfit with severance pay 
of 10 percent by the IPEB.  The AF Form 618 from the IPEB was 
not submitted for review; only a portion was copied and pasted 
to a word document.  There is no way to determine if the other 
conditions were considered.  The applicant states that she 
appealed the decision in 2009.  Out of the 400 pages of 
documents that were submitted for this BCMR there were no 
records from the Formal PEB (FPEB).  There is no written 
confirmation regarding either the conditions considered or the 
outcome of the FPEB.  The applicant retired honorably in 
2011, two years after her original MEB.  One could surmise 
that the FPEB found the applicant fit and returned her to 
duty in 2009.  Unfortunately, the lack of sufficient 
documentation submitted goes against recommending relief to 
the applicant.

The complete SGPA evaluation is at Exhibit C.

AFPC/DPFD recommends denial, stating, in part, that the 
preponderance of evidence reflects that no error or injustice 
occurred during the disability process.  In addition, they 
note that because the applicant was a member of the ANG the 
records of her evaluation by the PEB are not contained in 
the Automated Records Management System (ARMS) and only a 
few documents are available.  As such, some information 
available in conducting this review is based on dates reflected 
in the Military Personnel Data System (MilPDS) and the records 
provided by the applicant.

The MEB process started in 2008, on 7 Jul 09, the case was 
returned without action by the FPEB for an impartial review to 
be conducted and for the medical board to be resubmitted when 
everything was complete.  However, the IPEB did not receive a 
new medical board to adjudicate the case or to recommend a 
medical separation or retirement.

The complete DPFD evaluation is at Exhibit D.

The BCMR Medical Consultant recommends denial.  The Military 
Disability Evaluation System (MDES), 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 time of separation and not based 
on future occurrences.

The applicant reported being in a car accident in 1998, 2004, 
and 2008.  The applicant has a long history of lower back issues 
dating from 12 Feb 99, as described by the Department of 
Veterans Affairs (DVA) and service records.  The applicant’s 
records show that the lower back issues were responsible for 
numerous missed work days, (AF Forms 422, Physical Profile 
Serial Reports and AF Forms 469, Duty Limiting Condition 
Reports).  The preponderance of these AF Forms 422 and AF 
Forms 469 were related to the applicant’s lower back.  The 
applicant's commander was well within his/her prerogative to 
initiate an MEB since the applicant’s medical condition would 
likely continue to restrict her utilization as a Total Force 
asset.  The IPEB recommended Discharge with Severance Pay 
(DWSP) at 10 percent, using Veterans Affairs Schedule for 
Rating Disabilities (VASRD) code 5243; the applicant 
appealed the decision to the FPEB.  The FPEB's ultimate 
determination is unknown but the Medical Consultant surmises 
that the applicant was found fit for duty.

It appears, the applicant’s request to be returned to duty was 
ultimately granted and the applicant’s degenerative disc 
disease (lower back, VASRD code 5243) may well have been 
considered unfitting in May 08 at the IPEB.  If there were any 
further developments regarding the applicant’s lower back they 
were revaluated on 30 Mar 11, one month post military 
retirement by the DVA.  The DVA at that time found her 
degenerative disc disease VASRD 5243, non-compensable (0 
percent).  In summation, if the applicant’s lower back condition 
was unfitting it would have received a disability compensation 
rating of 0 percent, and therefore no error or injustice 
occurred during the disability process.

The AF Forms 422 and AF Forms 469 in the applicant’s supplied 
records appear to be in reference to degenerative disc disease 
of the cervical spine.  The DVA analysis was granted for 
“objective evidence of painful motion” [VASRD §4.59].  Had the 
applicant undergone an MEB, the condition would have been 
categorized as a condition that can be unfitting but not 
currently compensable or ratable (Category II), and therefore no 
error or injustice occurred during the disability process.

Addressing the applicant’s mental health request, the Medical 
Consultant considered both the quality and quantity of the 
supplied medical records in making a recommendation.  The 
Medical Consultant notes that the applicant’s first mental health 
assessment was on 9 Nov 99 and her mental health history spans 
over 10 years.  The applicant has been evaluated by numerous 
highly qualified mental health professions throughout her career 
and during retirement; as would be expected multiple opinions 
arise, “adjustment disorder, mixed anxiety, depressed mood, 
occupational problems, phase of life/life circumstance problem, 
major depressive disorder-partial remission, depression-not 
otherwise specified, and depression due to spinal pain.”  
Medicine is both an art and a science and each professional’s 
description and diagnosis was correct if viewed through “lens of 
that time.”  The applicant clearly had satisfactory coping 
skills since it appears she reasonably perform the duties of 
her office, grade, rank, or rating for over ten years; 
supporting this assessment is a career that progressed in a 
satisfactory manner.

In summary, the preponderance of, unbiased and impartial, 
evidence given by mental health professionals, supports a 
temporary, situational, transient, resolving, mild depression.  
Some of the inciting factors [pain] have been resolved DVA 
reports no further pain.  The Medical Consultant was unable to 
find any long term AF Form 422 with a Psychiatric profile (S-1).  
The applicant’s mental health issues were not unfitting and 
there was no error or injustice committed during the disability 
process.

The applicant was evaluated by a military mental health 
provider and her condition does not meet the criteria requiring 
a separate MEB.  The Medical Consultant believes the 
applicant has not met the burden of proof of error or 
injustice that warrants the desired change of the record.  The 
discharge was consistent with the procedural and substantive 
requirements of the discharge regulation.

The complete BCMR Medical Consultant evaluation is at Exhibit F.

________________________________________________________________

APPLICANT’S REVIEW OF THE AIR FORCE EVALUATION

Counsel notes that the applicant’s original PEB was not properly 
closed out.  After being notified of an initial 10 percent 
rating with severance pay in 2009, she appealed the matter to a 
FPEB.  After additional medical problems surfaced, the matter 
was returned for further investigation.  At this point, no 
further action was taken.  The applicant should have been 
extended on active duty until this process was properly closed 
out.

Counsel asserts that the opinion of the SGPA differs from that 
of DPFD, in that, the IPEB results were not submitted with the 
appeal.  Actually, the IPEB results and paperwork were submitted 
in the evidentiary packet with all other medical records from 
2009.

Counsel disagrees with the BMCR Medical Consultant’s opinion in 
regards to the three motor vehicle accidents and notes that they 
were In the Line of Duty (ILOD).

The applicant’s mental health conditions continued from 2004 and 
were aggravated, in 2010, by a hostile work environment which 
resulted in hospitalization and suicidal ideation.

The applicant’s PEB should have been continued and resulted in a 
medical retirement.

In further support of her appeal, she provides counsel’s 
statement; copies of letters and medical notes from her civilian 
provider and various other documents.


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

________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by 
existing law or regulations.

2.  The application was timely filed.

3.  Insufficient relevant evidence has been presented to 
demonstrate the existence of an error or an injustice warranting 
changing her Reserve retirement to a medical retirement with a 
50 percent disability rating.  We note that the applicant 
contends that her medical conditions warranted extended her on 
active duty for further MEB processing and provides letters of 
support from her commander and the Colorado ANG Assistant 
Adjutant General.  However, after carefully reviewing the 
evidence we do not find it supports a determination that she was 
improperly separated from active duty in 2011.  The applicant 
has provided no evidence which, in our opinion, successfully 
refutes the assessment of her case by the BCMR Medical 
Consultant.  Therefore we agree with opinion and recommendation 
of the BCMR Medical Consultant and adopt the rationale expressed 
as the basis for our conclusion the applicant has failed to 
sustain her burden of proof that she has been the victim of an 
error or injustice.  Accordingly, we find no basis upon which to 
recommend granting the relief sought in this application.

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.

________________________________________________________________

THE BOARD DETERMINES THAT:

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

________________________________________________________________



The following members of the Board considered AFBCMR Docket 
Number BC-2013-01985 in Executive Session on 4 Mar 14, under the 
provisions of AFI 36-2603:

	, Panel Chair
	, Member
	, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 19 Sep 12, w/atchs. 
    Exhibit B.  Applicant's Available Master Personnel Records.
    Exhibit C.  Letter, NGB/SGPA, dated 29 May 13.
    Exhibit D.  Letter, AFPC/DPFD, dated 18 Jun 13.
    Exhibit E.  Letter, BCMR Medical Consultant, 
                dated 17 Jul 13.
    Exhibit F.  Letter, SAF/MRBC, dated 29 Jul 13.
    Exhbiit G.  Email, Applicant, dated 29 Aug 13, w/atchs.




                                   Panel Chair