RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2013-01167
	XXXXXXX	COUNSEL: NONE
		HEARING DESIRED: NO

________________________________________________________________

APPLICANT REQUESTS THAT:

His regular retirement be changed to a medical retirement.

________________________________________________________________

APPLICANT CONTENDS THAT:

Since his conditions were not improving, he was instructed to 
submit his retirement paperwork.  He was unaware that he was 
supposed to process through a Medical Evaluation Board (MEB) 
until a master sergeant at the Medical Wing advised him that he 
"slipped through the cracks" and should have been medically 
boarded.

In support of his request, the applicant provides copies of his 
separation documents, Department of Veterans Affairs (DVA) 
Rating Decision and various other documents associated with his 
request.

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

________________________________________________________________

STATEMENT OF FACTS:

On 20 Sep 2011, the applicant was relieved from his current 
assignment and transferred to the Reserve Retired List, eligible 
for Reserve retired pay at age 60 under Title 10, U.S.C. 
§ 12731.

According to the 28 Feb 2013, DVA Rating decision provided by 
the applicant, the DVA granted him a 90 percent rating for his 
service connected disabilities.

The remaining relevant facts pertaining to this application are 
contained in the letters prepared by the appropriate offices of 
the Air Force and the BCMR Medical Consultant at Exhibits C, E 
and H.

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AIR FORCE EVALUATION:

NGB/SGPA recommends denial.  SGPA states that the applicant was 
discharged with a physical disqualification.  It is unclear how 
he could receive this type of discharge without being referred 
to the Disability Evaluation System (DES) and to be found unfit 
for military duties.  The only medical documentation submitted 
was his DVA compensation form showing his medical conditions and 
the percentages awarded for each condition.  There are no other 
documents to substantiate his request.

The complete SGPA evaluation is at Exhibit C.

The BCMR Medical Consultant regrettably recommends denial.  The 
fact that the applicant was released under the provisions of AFI 
36-3209, Separation and Retirement Procedures for Air National 
Guard and Air Force Reserve Members, means that the medical 
condition that resulted in his Physical Disqualification was 
either determined not in line of duty or not permanently 
aggravated through military service.  The fact that the DVA has 
apparently found a number of medical conditions service 
connected and assigned disability ratings is neither 
determinative of the applicant's fitness to serve nor the reason 
for his release from military service; as the mere existence of 
certain medical conditions is not automatically determinative of 
a member's unfitness to serve.  Thus, it is also entirely 
possible that the applicant was released due to a medical 
condition that is not listed among those for which he received 
service connection by the DVA.  Addressing the applicant's 
desire for a medical retirement, the military DES, established 
to maintain a fit and vital fighting force, can by law, under 
Title 10, U.S.C only offer compensation for those service 
incurred [in line of duty or permanently aggravated] diseases or 
injuries which specifically rendered a member unfit for 
continued active service by a Physical Evaluation Board and were 
the cause for career termination.  On the other hand, operating 
under a different set of laws (Title 38, U.S.C.), with a 
different purpose, 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 retainability, fitness to serve, or the 
narrative reason for release from service.  This is the reason 
why an individual can be released from military service for one 
reason and yet sometime thereafter receive compensation ratings 
from the DVA for service connected, but not militarily unfitting 
conditions.  No service medical documentation (Duty-Limiting 
Condition Reports, Physical Profile Serial Reports, commander's 
performance assessment, line of duty documents, medical progress 
notes and summaries) has been provided upon which to make a 
reasoned analysis of the existence of possible error or 
injustice in the applicant's release from military service, 
under the provisions of AFI 36-3209.  Thus, there is presumption 
of regularity on the part of the Air Force in processing the 
applicant's release from service and transfer to the Retired 
Reserve List.

The complete Medical Consultant’s evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

He had a total hip replacement on 4 May 2013 and was unable to 
reply to the BCMR advisory prior to the suspense date.  In 
further support of his appeal, he provides additional supporting 
documents.

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

________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

The BCMR Medical Consultant again, regrettably recommends 
denial.  The Medical Consultant's objective is not to deprive 
the applicant of a benefit that he deserves or earns.  However, 
certain milestones must be met in order to validate his 
eligibility for the disability/medical retirement he desires.  
Most important of all qualifying criteria for the Reserve 
component is whether the medical condition that cut short the 
applicant’s career was found in line of duty, or if performing 
duty of 30 days or less whether the condition was incurred or 
permanently aggravated as a proximate result of performing 
military duties.  The DVA, operating under a different set of 
laws, establishes service connection and disability compensation 
for any medical condition determined by this body to have been 
incurred during a previous period of military service; and 
without regard to the narrative reason for release from service 
or fitness for continued service.  Aside from the "labral tear" 
noted on the applicant's left hip MR arthrogram, which connotes 
occurrence of some type of injury, the degenerative changes 
noted on the applicant's hips, shoulder, and knee X-rays were 
likely the result of the expected natural progression of the 
aging process and not the result of a specific traumatic event 
or permanent aggravation though the performance of duty.  Absent 
evidence of permanent service aggravation of the applicant’s 
condition for which he was found disqualified, absent a finding 
of in line of duty for his disqualifying condition, and absent 
evidence he was serving a period of 31 days or more at the time 
of disqualification, the applicant has not met the burden of 
proof of error or injustice that warrants the desired change of 
the record.



The complete Medical Consultant’s evaluation is at Exhibit H.

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APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

The permanent aggravation of his injuries occurred while he was 
deployed to Kirkuk, Iraq.   He also refutes some of the facts 
from the advisory.  He was never a member of the Coast Guard, 
but was a civilian employee for the Coast Guard.  He was an 
active duty member of the Marine Corps (1988-1992), Marine 
Reserves (1992-1993) and the Army (1993-1996).  He was then an 
Alaska Army Guardsman from 1996 to 1998 and finally an Air 
Guardsman from 1998 to 2012.  

The injury to his hip and knees occurred during his tour in 
Kirkuk Iraq from 2004-2005. He was performing afterhours 
refueling when two rocket propelled grenades were shot overhead. 
He immediately jumped off the tanks to seek shelter.  Although 
he was in pain and bruised he never sought medical attention 
because he was able to keep working.

There is also relevant information he does not have access to; 
specifically the first time he failed his fitness test in almost 
20 years of service was due to his injury.  In 2009, he was 
stretching and warming up for his fitness test when he felt a 
pop in his joint.  It was extremely uncomfortable, yet he 
attempted to perform the run.  He was unable to finish the run 
and subsequently failed the fitness test.  From that point 
forward his injuries became significantly worse.  He was not 
provided direction or leadership on how to properly document his 
injuries and did not seek medical advice until 2011.  It was at 
the end of his career that he was finally encouraged to obtain 
the AF Form 469, Duty Limiting Condition Report.

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

________________________________________________________________

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 Air Force office of primary responsibility 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 the applicant’s response to the 
evaluations is noted, other than his uncorroborated assertions, 
he has not provided any 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.

________________________________________________________________

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 11 Feb 2014, under the provisions of AFI 
36-2603:

      , Panel Chair
      , Member
      , Member

All members voted to correct the record as recommended.  The 
following documentary evidence was considered in AFBCMR BC-2013-
01167:

   Exhibit A.  DD Form 149, dated 28 Feb 2013, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, NGB/SGPA, dated 7 May 2013
   Exhibit D.  Letter, SAF/MRBR, dated 19 May 2013
   Exhibit E.  Letter, BCMR Medical Consultant, dated 
               21 May 2013
   Exhibit F.  Letter, SAF/MRBC, dated 21 May 2013.
   Exhibit G.  Letter, Applicant, dated 24 Jun 2013, w/atchs.
   Exhibit H.  Letter, BCMR Medical Consultant, 
               dated 3 Jan 2013 [sic].
   Exhibit I.  Letter, SAF/MRBC, undated
   Exhibit J.  Letter, Applicant, dated 8 Jan 2014, w/atchs.




								
								Panel Chair


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