RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2013-04059
	XXXXXXXXXX	COUNSEL: XXXXXXXXXX
		HEARING DESIRED: YES


APPLICANT REQUESTS THAT:

1.  Her involuntary separation from the Air Force be overturned.

2.  She be placed on the Permanent Disability Retired List 
(PDRL) effective of 1 November 2011.

3.  She receive back retirement pay from 1 December 2011 to 
present.


APPLICANT CONTENDS THAT:

An Informal Physical Evaluation Board (IPEB) found her fit for 
duty a mere six months after her diagnosis of Multiple Sclerosis 
(MS).  It appears this decision was grounded in part due to her 
commander's recommendation to retain her.  Her commander was not 
a physician.

The Veterans Administration Schedule for Rating Disabilities 
(VASRD) code of 8018, MS, has a minimum rating of 30 percent 
without residuals.  The applicant was non-deployable in a war 
time environment and was subject to constant medical scrutiny.  
Being retained on active duty by the IPEB and being coded with 
an Assignment Limitation Code (ALC) of C2 eventually caused her 
to be non-selected for promotion to the grade of Lieutenant 
Colonel (Lt Col) and involuntarily separated from the Air Force.

At the time of the IPEB, the applicant was under a P4 profile, 
was not physically qualified for service and should have been 
permanently retired.  A P4 profile denotes “Organic defect(s), 
systemic and infectious disease(s) which has already undergone 
an MEB or ALC fast track as determined by the Deployment 
Availability Working Group.  Assigning her to the PDRL is 
appropriate because the MS has been stable and therefore the 
Temporary Disability Retired List (TDRL) is not appropriate.

In support of her request, the applicant provides a counsel’s 
brief, copies of her SF 600, Chronological Record of Medical 
Care; AF IMT 618, Medical Board Report; AF Form 356, Findings 
and Recommended Disposition of USAF Physical Evaluation Board; 
AF Form 469, Duty Limiting Condition Report; AF Form 422, 
Notification of Air Force Member’s Qualification Status; DD Form 
214, Certificate of Release or Discharge from Active Duty; 
Enlisted Performance Reports, and various other documents 
associated with her requests.

Her complete submission, with attachments, is at Exhibit A.


STATEMENT OF FACTS:

According to her DD Form 214, the applicant entered the Regular 
Air Force on 10 July 1996.

According to SF 600 dated 24 April 2008, the applicant was 
diagnosed with MS.

In a letter dated 21 May 2008, addressed to the Medical 
Evaluation Board (MEB), the applicant’s commander documented 
that her medical condition had not altered her primary duty 
schedule and would not prevent her from serving in her primary 
Air Force Specialty Code.

According to AF IMT 618 dated 2 June 2008, a MEB recommended 
referral to the IPEB. 

On 19 August 2008, the IPEB found the applicant fit and 
recommended “Return to Duty,” finding the medical condition 
"does not prevent you from reasonably performing the duties of 
your office, grade, rank or rating."   The IPEB further stated 
that another MEB may be required if she should report any 
significant change in her medical condition, or should her 
medical condition affect her duty performance.

On 14 June 2011, the applicant was notified by her commander 
that she was non-selected for promotion to the grade of Lt Col 
by the Calendar Year (CY) 2011A Lt Col Central Selection Board 
(CSB).  Since this was her second nonselection, she would be 
involuntarily separated not later than 30 November 2011.

An AF Form 422 dated 11 July 2011, reflects the applicant was 
found fit and returned to duty with continuation of ALC-C2, 
which is used for medical conditions for which specialist 
medical care and referral within one year is likely but who 
could be deployed or reassigned OCONUS or to non-fixed 
environments if appropriate specialty care is available, or for 
short periods of time.  She was not worldwide qualified.  
Mobility restrictions expired on 30 August 2011.

On 30 November 2011, the applicant was honorably discharged 
under the provisions of AFI 36-3207, Separating Commissioned 
Officers.  Her narrative reason for separation is “Non-
selection, Permanent Promotion.”  She served on active duty for 
a period of 15 years, 4 months and 21 days.


AIR FORCE EVALUATION:

AFPC/DPSOO recommends denial of the applicant’s request that her 
involuntary separation be overturned.  The applicant met and was 
non-selected for promotion by the CY2010A and CY20l1A Lt Col 
CSBs which convened on 8 March 2010 and 7 March 2011, 
respectively.  As a result of her second non-selection she was 
involuntarily separated on 30 November 2011.  While counsel 
states that separation was inevitable given the coded ascription 
in combination with MS, the C-2 code nor any other medical 
issues on eligible officers is a part of the Officer Selection 
Record or the Officer Selection Brief.  The only way board 
members would know is if the applicant wrote a letter to the 
board and advised them of such.  DPSOO has reviewed the 
applicant's record and she did not write a letter to the board.  
Therefore, they do not believe the C-2 code nor any other 
medical issue was known to board members during the promotion 
scoring process or was a part of the promotion or continuation 
decision process.  Based on the guidance provided to the 
continuation board by the Secretary of the Air Force, the 
applicant's record was reviewed for continuation; however, in 
the eyes of the board, the applicant did not warrant retention 
on active duty.  To overturn her separation and continue her on 
active duty would be unfair to the other 156 officers who were 
not retained on active duty.

The complete DPSOO evaluation is at Exhibit C.

AFPC/DPSOR recommends denial of the applicant’s request that her 
involuntary separation be overturned.  The applicant did not 
provide any evidence that an error or injustice occurred in the 
processing of her discharge.  Officers who are twice non-
selected for promotion to the grade of captain, major, and 
lieutenant colonel are projected for mandatory separation.  
Therefore, the discharge, to include the separation code, 
narrative reason for separation and character of service, was 
appropriately administered and within the discretion of the 
discharge authority.  

The complete DPSOR evaluation is at Exhibit D.

The BCMR Medical Consultant recommends denial.  The neurology 
MEB narrative dated 24 April 2008, described the applicant's 
presenting symptoms of MS together with radiologic and 
laboratory test results.  The clinical findings on examination 
document a near normal neurological examination with some mild 
right upper extremity weakness.  Summary notes indicate, 
"Patient's current physical disability is mild" and acknowledges 
the unpredictability of the disease.

The MEB and IPEB found that, although the diagnosis of MS was 
present, it was not unfitting in 2008.  The ALC-C2 code was 
assigned and the applicant continued to perform her assigned 
duties in an exemplary fashion.  In fact, the commander's letter 
to the MEB identified the applicant as an outstanding performer. 
He further states that her medical diagnosis does not limit the 
mission in any way.  Thus, the applicant’s medical condition was 
not unfitting shortly after the diagnosis was established.  To 
establish whether the condition was unfitting around the time of 
separation, medical progress notes dated 11 February 2011, 
document the applicant had “no recurrence of symptoms since 
initial presentation in 2008.”  Additional comments state, “The 
patient is able to participate in all unit activities, denies 
any impact on duty because of multiple sclerosis.”  It also 
documents the most recent fitness test score (85 percent; 
Satisfactory) from June 2010.  An AF Form 422, dated 11 July 
2011, indicates the applicant was found fit for duty with 
continuation of the ALC-C2 restrictions which had previously 
been instituted.  Therefore, the Medical Consultant concludes 
the applicant's MS was not a medically unfitting condition at 
the time of separation and proper administrative procedures 
followed for determining fitness for duty.  The determination 
that involuntary administrative separation due to the second 
non-selection is clearly established as the sole reason for 
termination of the applicant's active duty career.  There is no 
evidence the level of fitness or any other physical limitations 
resulting from the MS shortened the applicant's career.

The military Disability Evaluation System (DES), established to 
maintain a fit and vital fighting force, can by law, under Title 
10, USC, 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. 
DODI 1332.32, Physical Disability Evaluation, Enclosure 3, Part 
3, Standards For Determining Unfitness Due to Physical 
Disability or Medical Disqualification, paragraph E3.P3.2.1, 
reads:" A Service member shall be considered unfit when the 
evidence establishes that the member, due to physical 
disability, is unable to reasonably perform the duties of his or 
her office, grade, rank, or rating to include duties during a 
remaining period of Reserve obligation."

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


APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Counsel stands by his assertion that MS is an unfitting 
condition, which by law, has a minimum disability rating of 
30 percent.  Moreover, the Air Force advisory opinions are 
nothing more than attempts to avoid responsibility to the 
applicant.

Counsel’s complete response 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 error or injustice.  We took notice 
of the applicant's complete submission in judging the merits of 
the case; however, we agree with the opinions and 
recommendations of the Air Force Offices of Primary 
Responsibility (OPR) and the BCMR Medical Consultant and adopt 
their rationale as the basis for our conclusion the applicant 
has not been the victim of an error or injustice.  While 
counsel’s response to the BCMR Medical and Air Force evaluations 
are noted, he has not provided substantial evidence which, in 
our opinion, successfully refutes the assessment of his case by 
the aforementioned evaluations.  Therefore, in the absence of 
evidence to the contrary, we find no basis 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(s) 
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 this application 
in Executive Session on 7 August 2014, under the provisions of 
AFI 36-2603:

      , Panel Chair
      , Member
      , Member

The following documentary evidence was considered pertaining to 
AFBCMR BC-2013-04059:

      Exhibit A.  DD Form 149, dated 21 August 2013, w/atchs.
      Exhibit B.  Applicant's Master Personnel Records.
      Exhibit C.  Letter, AFPC/DPSOO, dated 3 March 2013.
      Exhibit D.  Letter, AFPC/DPSOR, dated 4 April 2013
      Exhibit E.  Letter, BCMR Medical Consultant, dated  
                  8 April 2014.
      Exhibit F.  Letter, SAF/MRBR, dated 18 April 2014.
      Exhibit G.  Letter, Counsel, dated 26 May 2014.





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