RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2013-01157
                                 COUNSEL:   
	  		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

He be medically retired and receive a minimum of 70 percent pay for disability for Post-Traumatic Stress Disorder (PTSD), fibromyalgia, chronic fatigue syndrome, sleep apnea and other conditions.  

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APPLICANT CONTENDS THAT:

He was separated from active duty on 27 May 2008 without referral to a Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB).  

The Air Force did not complete a Post Deployment Health Assessment (PDHA) although he completed the form on-line.

In Mar 2012, he requested that he be processed through the Disability Evaluation System (DES) but his request was denied.

In support of his request, the applicant provides a chronological brief of events, copies of policy memorandums on PDHA, letters on fitness determination, AF Form 489, Duty Limiting Condition Report; Informal Physical Evaluation Board (IPEB) recommendation, Department of Veterans Affairs (DVA) rating and various other documents associated with his request.  

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

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STATEMENT OF FACTS:

He entered active duty, this period, on 26 Dec 2007. 

He was deployed to Balad, Iraq, from 1 Jan 2008 to 8 May 2008.  

He was released from active duty on 27 May 2008.

The applicant served five months and two days on this active duty tour.  

On 6 Nov 2010, the applicant presented to the DVA on his own accord for a Persian Gulf War Survey.  He reported symptoms of mild pain of the extremities and a persistent cough.  He was previously treated for hypertension and as a result of this examination, he was diagnosed with mild chronic lumbar pain with myelopathy, mild PTSD, mild Barrett’s esophagus, mild irritable bowel syndrome, an umbilical hernia, mild chronic cough, sleep apnea requiring Continuous Positive Airway Pressure (CPAP) and obesity.  Sleep apnea was cited as a disqualifying condition requiring evaluation of fitness.  

On 18 May 2011, NGB/A1PS found the applicant medically disqualified for worldwide duty for sleep apnea and requested a fitness evaluation.  

On 8 Jun 2011, the IPEB found the applicant fit for duty with a diagnosis of Obstructive Sleep Apnea (OSA).  The ANG/SG would make the final determination whether the applicant was medically qualified for worldwide duty and deployable.  Because the applicant was found fit for duty, he was not processed through the DES.  

In Aug 2011, the applicant requested his retirement effective 11 Sep 2011 be delayed until a MEB validated the DVA findings and determine if he should be medically retired.  

On 15 Mar 2012, the applicant was advised by NGB/A1P that because he was found fit for duty; he was not eligible for processing through the DES.  

An Air Force Form 422, Notification of Air Force Member’s Qualification Status, dated 24 Apr 2012, shows the applicant was found fit for duty, with Assignment Limitation Code (ALC) C-1 which denotes “only assigned or deployed to DOD facilities with fixed medical treatment facilities” based on his diagnosis of OSA.  

On 25 Apr 2012, the 127th Medical Group/SG informed the applicant of the findings and instructed him to contact the medical group if selected for a deployment to ensure medical clearance was accomplished. 

On 9 Jan 2013, the applicant was placed on the Air Force Retired List, Retired Reserve Section, with effective retirement date of 15 Jul 2013.  He was retired in the grade of Senior Master Sergeant (SMSgt) with 21 years, 10 months and 14 days of active duty.    

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AIR FORCE EVALUATION:

NGB/SGPA recommends denial of the applicant’s request for a medical retirement.  There is no documentation showing any service aggravation while serving in the Michigan ANG or while deployed.  The DVA documentation shows that the applicant had constant pain from his 2002 surgery and that the pain lasted several days.  In accordance with Air Force Instruction (AFI) 48-123, Medical Examinations and Standards, members are responsible for reporting any medical or dental issues that may impact utilization and readiness.  The applicant was involved in a motor vehicle accident in 1996 and had two surgeries for his back; however, there is no documentation to show any service aggravation. The applicant had seven deployments during his time in the military and was able to perform his military duties and also continued to work as a civilian police officer with no record of any issues or concerns due to his conditions. Furthermore, the applicant was diagnosed with fibromyalgia and chronic fatigue syndrome in 2010 by the DVA but there is no documentation to support any service connected aggravation.  It is also unclear when the applicant was given the diagnosis of PTSD as there is no record of service connected PTSD from his 2008 deployment.  

The aforementioned conditions do not require a waiver and entrance into the DES in accordance with AFI 48-123.  However, in 2010, the applicant was diagnosed with OSA, a disqualifying condition requiring a waiver.  

In Jan 2011, the Michigan ANG submitted a world-wide duty waiver.  The applicant’s medical history to include all diagnosis from the DVA, were included in the narrative summary of his waiver for OSA.  The applicant was originally disqualified from military service by NGB/SGPA; however, the applicant disagreed with the findings and requested an IPEB which found the applicant fit for duty on 8 Jun 2011.  

The applicant was scheduled for retirement on 11 Sep 2011 but asked it be rescinded to allow for an additional MEB review.  A Review in Lieu of (RILO) was completed in Apr 2012 and his medical history was reviewed again and he was found fit for duty and given an ALC C-1. 

The complete SGPA evaluation is at Exhibit C.  

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The diagnosis of PTSD was made by the DVA on 6 Aug 2010 and was based on his PDHA which he completed on 15 Apr 2008 while deployed to Iraq.  He disagrees with SGPA that the aforementioned medical conditions do not require processing through the DES.  Importantly, the 6 Nov 2009 AMS states that OSA requiring CPAP is a disqualifying condition.  Moreover, he has had back pain since 1996 as a result of a motor vehicle accident and it is understood that he deployed on several occasions with his neck condition and that he aggravated the cervical condition while on active duty.  

He submitted a tuberculosis claim with the DVA in Sep 2009 as a result of contact with many civilians while deployed to Qatar.  The claim was denied as there was no evidence he had tuberculosis, however, he contends that his conditions are the result of burn pit exposure and Gulf War Syndrome.  He suffered respiratory conditions as well as other medical conditions as a result of the burn pit exposure.  He provided the documentation of his medical conditions to the 127th Medical Group.  

He continued to work in his civilian job until he was eligible for retirement.  For him to do otherwise would have been foolish.  He could not handle his civilian police job due to PTSD and retired when eligible.  

It is incorrect that there is no record of his inability to perform his military duties.  On 25 Sep 2010, he was medically disqualified from performing military duty.  He commenced his traditional Guardsman duties when the profile was lifted due to the uncertainty and being at least eligible for a reserve pension.  

The Jun 2011 IPEB only dealt with the OSA and it is an injustice that fibromyalgia and chronic fatigue syndrome were not considered.  On 29 Mar 2012, he requested that he be processed through the DES but was ignored by the NGB.  

In Mar 2010, he was diagnosed with OSA as part of his Gulf War Physical examination at the Detroit, MI, DVA.  He then submitted the documents to the 127th Medical Group. More recently, in   2012, he had a sleep study done and the physician, also an ANG flight surgeon, states that the OSA is a result of his       2008 deployment.  

The complete response, with attachments is at Exhibit D.  

On 16 Jan 2014, the applicant’s civilian legal counsel submitted a letter from the DVA for partial approval of Combat Related Special Compensation (CRSC) and combined rating of 70 percent effective 1 Oct 2009.

The complete response, with attachments, is at Exhibit F.  

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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 an injustice.  The applicant requests his length of service retirement be changed to a medical retirement with at least a 70 percent disability rating.  While the applicant contends he was separated from active duty without an MEB, he has not provided substantial evidence showing that he had an unfitting medical condition that would have required his processing through the Military Disability Evaluation System – a prerequisite to a medical discharge.  The Board notes that the Disability Evaluation System (DES) was established to maintain a fit and vital fighting force, and can by law, only offer compensation for those service incurred diseases or injuries which specifically rendered a member unfit for continued active service, were the cause for termination of their career, and then only for the degree of impairment present at the time of separation.  Conversely, the DVA operates under a separate set of laws and specifically addresses long term medical care, social support and educational assistance.  The DVA is chartered to offer compensation and care to all eligible veterans for any service-connected disease or injury without regard to whether it was unfitting for continued military service.  Thus the two systems represent a continuum of medical care and disability compensation that starts with entry on to active duty and extends for the life of the veteran.  The applicant’s case has undergone an exhaustive review by the Air Force Office of Primary Responsibility  (OPR) and we did not find the evidence provided, sufficient to overcome its  assessment of the case.  Therefore, we agree with the OPR's recommendation and adopt the rationale expressed as the basis for our decision that the applicant has failed to sustain his burden that he has suffered either an error or an injustice.  In the absence of persuasive evidence to the contrary, we find no basis to recommend granting the relief sought in this application. 

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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.

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The following members of the Board considered AFBCMR Docket Number BC-2013-01157 in Executive Session on 27 Jan 2014, under the provisions of AFI 36-2603:

      , Panel Chair
       , Member
	 , Member

The following documentary evidence was considered:

  	   Exhibit A.  DD Form 149, dated 5 Mar 2013, w/atchs.
  	    Exhibit B.  Applicant’s Master Personnel Records
  	   Exhibit C.  Letter, NGB/SGPA, dated 7 May 2013. 
	 Exhibit D.  Letter, Counsel, dated 17 Jun 2013, w/atchs.
	 Exhibit E.  Letter, SAF/MRBR, dated 19 Dec 2013
	 Exhibit F.  Letter, Counsel, dated 30 Dec 2013, w/atchs.



		
       
      Panel Chair