RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:	DOCKET NUMBER:  BC-2013-04674

		COUNSEL:  NONE

		HEARING DESIRED:  YES 


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APPLICANT REQUESTS THAT:

The narrative reason for separation on his DD Form 214, Certificate of Release or Discharge from Active Duty, be changed from “maximum service or time in grade,” to “medical disability.”  

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APPLICANT CONTENDS THAT:

He should have been retired due to medical disability because he was unable to perform duties required by Air Force regulations prior to being discharged.  Unless the Air Force corrects the narrative reason for his separation stating he was retired due to a medical disability, his spouse will not be able to receive medical treatment at a Military Treatment Facility (MTF) or a Department of Veterans Affairs (DVA) Medical Center, nor be eligible for the TRICARE/CHAMPVA new inflation rate index policy that locks in premiums at the rate it is at the time of the new policy. 

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

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STATEMENT OF FACTS:

The applicant entered a second period of active service in the Regular Air Force on 16 Apr 82.

On 31 Dec 97, the applicant was honorably discharged with a narrative reason for separation of “maximum service or time in grade;” he was credited with 20 years and 15 days of active duty and retired, effective 1 Jan 98.  

The remaining relevant facts pertaining to this application are described in the letter prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit C.    

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AIR FORCE EVALUATION:

The BCMR Medical Consultant recommends denial indicating there is no evidence of an error or an injustice.  The applicant’s principal recurring medical issue relates to chronic pain involving multiple joints, referred to in the record as seronegative arthropathy (SNA) and polyarthropathy. As far back as 20 Sep 85, a medical provider recorded the applicant's complaint of fever, weight-loss, and polyarthropathy.  On 8 Oct 86, the applicant underwent a whole body bone scan in search of an identifiable cause of his pain.  All anatomic findings were reported as "normal."  A repeat bone scan in Feb 92 for suspected osteoarthritis of the left hip confirmed "active arthropathy" on the left.  From 30 Sep 93 to 18 Dec 96, the applicant’s AF Form 422, Physical Profile Serial Report, showed assignments of an "L3" profile (lower extremities, defects or impairments that require significant restriction of use) and “L1” profile (No loss of digits or limitation of motion; no demonstrable abnormality; able to perform long marches, stand over long periods, run), but indicating the applicant was worldwide qualified (WWQ), "Yes," with no recorded expiration date listed.  On 19 Dec 96, the "L3" profile was changed to "L4" (functional level below the standards of 3), with the notation that the medical defect/condition requires MEB or PEB processing and that Assignment Availability Code (AAC) 37 (member in MEB/PEB process) applies.  On March 7, 1997, the applicant's MEB convened.  The AF Form 618, Medical Board Report cover-sheet, listed conditions under review as, Polyarthropathy and probable seronegative spondyloar ­ thropathy, aphthous ulcer, groin rash, otosclerosis, possible sicca of the eyes, and left calcaneal spur.  On 9 Apr 97, a copy of the AF Form 618 was stamped, dated, and signed, by HQ AFPC/DPAMM officials to indicate that applicant was returned to duty fit following a review by the Informal Physical Evaluation Board (IPEB).  The actual IPEB decision document is not supplied.  On 8 May 97, a healthcare provider changed the profile restrictions back to "L4" and entered "not worldwide qualified x 2 months" and recommended reevaluation by an MEB.  On 22 Sep 97, the applicant completed his separation physical documents.  His AF Form 1180, Outpatient Record Problem List, characterizing his overall health as "worse" compared to his last medical assessment.  In his own hand-writing, the applicant entered: "Many untreated events involving multiple joints and muscle problems, mental depression, ulcers, rashes, otosclorosis, sicca of eyes, tinnitus, hemorrhoids, and GERD."

The Medical Consultant reviewed the applicant’s 1300-plus pages of medical documentation finding that it revealed his condition was managed with different trials of medication.  With respect to the applicant's retainability and fitness to serve, one can conclude that his providers attempted to keep him on active duty to the extent possible, until he reached retirement eligibility, as noted by the variances in profile restrictions imposed, e.g., exercise at own pace, but which did not prohibit worldwide qualification for a significant period.  The applicant underwent an MEB on 4 Feb 97, but was returned to duty by the IPEB in Apr 97.  The likely reason for the applicant's return to duty lies within AF and DoD presumption of fitness policy.  Specifically, Department of Defense Instruction (DoDI) 1332.38, Physical Disability Evaluation, Enclosure 3, Paragraph E3.P3.5, sub-paragraph E3.P3.5.2, Presumptive Period. Service members shall be considered to be pending retirement when the dictation of the member's MEB occurs after the circumstance designated in paragraph E3.P3.5.2.4, which reads:
“An enlisted member is within 12 months of his or her retention control point (RCP) or expiration of active obligated service (EAOS), but will be eligible for retirement at his or her RCP/EAOS.”

It should be noted that since the applicant had only achieved the grade Technical Sergeant at 20 years of active duty, a mandatory retirement date of 1 Jan 98 was established, referred to as High-Year Tenure.  Under these circumstances, if a service member undergoes an MEB [specifically if the MEB narrative summary is dictated] within the 12 months of an approved retirement or retention control point, the service member enters a presumptive period during which he is presumed fit to return to duty.

However, the presumption of fitness can be overcome, if one of the following applies:

	(1) Within the presumptive period an acute, grave illness or injury occurs that would prevent the member from performing further duty if he or she were not retiring,

	(2) Within the presumptive period a serious deterioration of a previously diagnosed condition, to include a chronic condition, occurs and the deterioration would preclude further duty if the member were not retiring, or,

	(3) The condition for which the member is referred is a chronic condition and a preponderance of evidence establishes that the member was not performing duties befitting his or experience in the office, grade, rank, or rating before entering the presumptive period.  When there has been no serious deterioration within the presumptive period, the ability to perform duty in the future shall not be a consideration."

It could not be established that the applicant was unable to reasonably perform his military duties due to one or more medical conditions during his military service or at the time of his release from service.  Based upon the supplied service medical evidence, the Medical Consultant found no medical condition that established [or should have] a cause and effect relationship with termination of the applicant’s service or to justify an alternative reason for his release from active duty.  

Addressing the applicant’s expressed desire for medical retirement, the military Disability Evaluation System (DES), can by law 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.  On the other hand, 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 service.  This is the reason why an individual can be found fit for release from active military service and yet sometime thereafter receive a compensation rating from the DVA for one or more conditions found service-connected, but which were not proven militarily unfitting during the period of active service. 

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

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

He contends he was denied a proper review of his medical conditions by the Air Force at the time of his discharge.  His medical records show he was physically ill during the last ten years of his military service.  If his illnesses had been properly evaluated, the deforming of his left hip in 1992, the deterioration of his hands in 1993, and the erosion of his feet in 1998, could have been treated and reduced the affliction he now suffers with, which now includes skin cancer and the loss of his other hip. (Exhibit E).

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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.  We took notice of the applicant’s complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of the BCMR Medical Consultant and adopt his rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice.  While the applicant argues that he is the victim of an injustice due to the Air Force’s failure to timely diagnose his unfitting conditions, we are not convinced by the evidence of record that the applicant was deprived of the appropriate medical care for his conditions or that the impact of said conditions on his ability to perform his duties was not appropriately considered when he was processed through the disability evaluation system (DES).  Therefore, we are not convinced by the applicant’s arguments or the tome of evidence presented that he is the victim of an error or injustice.  Therefore, we find no basis to recommend granting the requested relief.

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 issues involved.  Therefore, the request for a hearing is not favorably considered.

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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-2013-04674 in Executive Session on 21 Aug 14, under the provisions of AFI 36-2603:

	
The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 15 Aug 13, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, BCMR Medical Consultant, dated 
		29 Apr 14.
Exhibit D.  Letter, SAF/MRBR, dated 20 May 14.
Exhibit E.  Letter, Applicant, received 18 Jun 14.