RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:	DOCKET NUMBER:  BC-2013-01436

		COUNSEL:  NONE

		HEARING DESIRED:  YES


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APPLICANT REQUESTS THAT:

His disability discharge be changed to a medical retirement, and he receive retirement pay from 27 Nov 10 to the present.  

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APPLICANT CONTENDS THAT:

He suffers from lower back injuries, Traumatic Brain Injury (TBI), and Post Traumatic Stress Disorder (PTSD), all which should be found to be combat related.  He was in Khobar Towers in Saudi Arabia in 1996 when it was bombed by a terrorist, and he received the Purple Heart from that event.  The Department of Veterans Affairs (DVA) determined the applicant has a combined disability rating 90 percent.  

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

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STATEMENT OF FACTS:

On 25 Jun 96, the applicant was stationed at Khobar Towers in Saudi Arabia during the terrorist attack in which a truck-bomb was detonated, killing numerous U.S. Servicemen.  

On 14 Jun 97, the applicant was released from active duty prior to having completed his first full term of service.  The narrative reason for separation was “Miscellaneous/General Reasons.”   

On 30 Dec 99, the applicant reentered the regular Air Force.

On 16 Aug 06, the applicant was awarded the Purple Heart (PH) Medal for wounds received in action on 25 Jun 96.

On 8 Apr 08, the applicant was seen by a civilian neurosurgeon for back pain.  The neurosurgeon’s associated report states “He has had back and right leg pain for the last year.  This started in June 2008.  The pain started spontaneously without injury.”   

On 6 Apr 10, an Informal Physical Evaluation Board (IPEB) found the applicant unfit for duty due to his back injury, that his back injury was combat related due to his being involved in a the terrorist bombing, and recommended discharge with severance pay and a disability rating of ten percent.  The applicant disagreed with the findings and appealed to the Formal Physical Evaluation Board (FPEB).

On 3 Jun 10, the Commander of the 82nd Medical Group requested the applicant’s MEB processing also evaluate his PTSD.

On 12 Jul 10, the FPEB evaluated the applicant’s case, including his PTSD diagnosis.  The FPEB considered his current functionality and degree of impairment and concluded his back condition is best rated at ten percent for objective evidence of painful motion.  The board did not find evidence supporting his contention that his back injury was combat related given that there was no documentation in the applicant’s record of back injury while he was deployed or evidence of treatment for 12 years after the incident.  Further, the FPEB cited the 2008 neurosurgeon’s report stating the member had only been experiencing pain for approximately one year and that the pain spontaneously occurred without injury.  In addition, the FPEB found that although the applicant had been diagnosed with PTSD, he remained highly functional in his military duties, achieving ratings of “5—Truly Among the Best” on his Enlisted Performance Reports for years and had no limitations or restrictions from a mental health perspective until May 10.  The Board concluded that the PTSD did not preclude the applicant from adequately performing his duties.  

On 13 Oct 10, the Secretary of the Air Force Personnel Council (SAFPC), after reviewing the applicant’s complete case, concurred with the findings of the FPEB and directed that the applicant be discharged and receive severance pay with a disability rating of ten percent.  SAFPC also noted that the Apr 09 medical record stating the applicant had been experiencing pain for approximately one year at the time undermines his claim the back pain is combat-related.  In addition, his service records and medical records are very clear that he has been able to continue in his duties without impairment from PTSD since re-entering the service in 1999.  

On 28 Nov 10, the applicant received an honorable discharge with a narrative reason for separation of “Disability, Severance Pay.” 

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

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AIR FORCE EVALUATION:

AFPC/DPFD recommends denial indicating there is no evidence of an error or an injustice.  The Department of Defense (DoD) and Department of Veterans Affairs (DVA) disability evaluation systems operate under separate laws.  Under Title 10, United States Code (USC), Physical Evaluation Boards (PEB) must determine if a member’s condition renders them unfit for continued military service related to their office, grade, rank or rating.  The fact that a person may have a medical condition does not mean that the condition is necessarily unfitting for continued military service.  To be unfitting, the condition must be such that it alone precludes the member from fulfilling their military duties.  If the PEB renders a finding of unfit, the law provides appropriate compensation due to the premature termination of their career.  Further, it must be noted that Air Force disability boards must rate disabilities based on the member’s condition at the time of evaluation; in essence a snapshot of their condition at the time.  It is the charge of the DVA to pick up where the AF must, by law, leave off.  Under Title 38, USC, the DVA may rate any service-connected condition based upon future employability or reevaluate based on changes in the severity of a condition.  In the applicant’s case, his FPEB noted:  The Board considered the current functionality and degree of impairment and concluded his back condition is best rated at 10 percent for objective evidence of painful motion.  With regard to the member’s contention that his back condition is combat-related, the Board does not find evidence to support this finding.  The Board notes the member was present at the bombing of Khobar Towers; however, there is no evidence documentation of the record of a back injury while the member was deployed or evidence of treatment for 12 years after the incident.  Additionally, the neurosurgeon’s 8 Apr 09 report indicated the member had only been experiencing pain for approximately one year at the time he sought treatment and that the pain spontaneously occurred without injury.  As for his claim regarding PTSD, the member was diagnosed with this condition following the Khobar Towers bombing, and has been treated for this condition with counseling on and off for years.  His most recent mental health notes indicate his Axis I diagnosis includes adjustment disorder with depression, PTSD and partner relational problems.  He has remained highly functional in his military duties (receiving 5-level Enlisted Performance Reports) and had no limitations or restrictions from a mental health perspective until May 10.  The FPEB concludes this condition has not precluded the service member from adequately performing his duties.  In addition, on 13 Oct 10, SAFPC concurred with the previous boards and directed the member be discharged with severance pay and disability of 10 percent.  SAFPC noted:  While he contends his PTSD should be considered unfitting as well, his service record and medical record is very clear that he has been able to continue in his duties without impairment from his condition since reentering the service in 1999.  While the Board agrees that the member’s PTSD is service-connected and combat related, it is not currently unfitting.  In the face of multiple evaluations indicating a normal or near-normal range of motion, allowing a 10 percent rating for objective evidence of painful motion is more consistent with the complete record.  The medical record of Apr 09 stating the member had been experiencing pain for approximately one year at the time undermines the claim for the back pain.  While it is believable that a significant explosion could cause back problems, the lack of treatment or impairment over the intervening 12 years makes that connection less plausible.  The preponderance of evidence reflects that no error of injustice occurred during the disability evaluation process or the rating applied at the time of the board. 

A complete copy of the AFPC/DPFD evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 19 Apr 13 for review and comment within 30 days.  As of this date, no response has been received by this office (Exhibit D).

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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 timely filed.

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 Air Force office of primary responsibility (OPR) and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice.  Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the 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-2013-01436 in Executive Session on 14 Jan 14, under the provisions of AFI 36-2603:

	, Panel Chair
	, Member
	, Member

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 4 Sep 12, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records
	Exhibit C.  Letter, AFPC/DPFD, dated 16 Apr 13.
	Exhibit D.  Letter, SAF/MRBR, dated 19 Apr 13.




                                   
                                   Panel Chair