RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF: 	DOCKET NUMBER: BC-2014-01156

					COUNSEL:  NONE

		HEARING DESIRED:  NO 




APPLICANT REQUESTS THAT:

His administrative discharge be changed to a medical/early retirement.


APPLICANT CONTENDS THAT:

He was unfairly discharged from active duty due to mishandling of his medical issues, mishandling of his case during the Medical Evaluation Board (MEB) process, to include substandard support from the MEB staff, and a possible conflict of interest with his case being handled in the medical facility he worked in, and the Deployment Availability Working Group (DAWG) chairperson being in his chain of command, as well as being his wife’s direct supervisor.

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


STATEMENT OF FACTS:

The applicant initially entered the Regular Air Force on 29 Oct 95.

On 23 Apr 10, the applicant’s officer performance report (OPR), covering the period 22 Apr 09 through 21 Apr 10, was referred to the applicant for comments and ratings related to his failure to meet Air Force physical fitness standards.  

On 23 Apr 10, the applicant submitted a rebuttal describing details of his medical condition to include hospitalization for reconstructive ligament surgery, resulting in him being placed on a medical profile. 

On 3 May 10, the additional rater signed (concurred with) the referral OPR, acknowledging that she carefully considered the applicant’s comments in his 23 Apr 10 memorandum.  

On 25 Apr 11, the applicant acknowledged receipt of notification by his wing commander that he was considered, but not selected, for promotion by the CY10D lieutenant colonel nurse corps central selection board. 

On 28 Mar 12, the applicant acknowledged receipt of notification by his wing commander that he was considered, but not selected, for promotion by the CY11C lieutenant colonel nurse corps central selection board, and since this was the second board which did not select him for promotion, the law required that he be involuntarily separated NLT 30 Sep 12.

On 30 Sep 12, the applicant was furnished an honorable discharge, with a narrative reason for separation of non-selection, permanent promotion, and was credited with 16 years, 11 months, and 2 days of active service.   

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


AIR FORCE EVALUATION:

AFPC/DPANM recommends denial indicating there is no evidence of an error or an injustice that warrants changing the applicant’s administrative discharge to a medical discharge.  DPANM worked the applicant’s medical case on two separate occasions.  In 2010, the applicant was under treatment for Obstructive Sleep Apnea (OSA), requiring the use of a Continuous Positive Airway Pressure (CPAP) device.  He was pending a deployment, and his medical treatment facility (MTF) needed a determination regarding eligibility to deploy with OSA requiring CPAP.  After reviewing the applicant’s Review in Lieu of (RILO) package, DPANM placed an assignment limitation code (ALC) C-1 on his records.  The ALC-C1 indicated the applicant met medical retention standards, but would require a waiver in order to deploy.  

On 6 Sep 12, DPANM received the applicant’s separation RILO package.  DPANM was required to pre-screen all cases prior to referral to the Integrated (DOD/VA) Disability Evaluation System (IDES), and was the approval authority for Medical Holds.  Medical Hold is a method of retaining a member beyond an established retirement or separation date for reason of disability processing.  DPANM determined that none of the conditions listed as reasons for submission of the Separation RILO package were cause for referral to IDES.  According to the documents submitted, the applicant’s pituitary microadenoma was not malignant and stable in size.  The applicant experienced growth hormone deficiency and low testosterone as a result of the tumor, but both conditions were successfully treated.  The applicant underwent an independent evaluation of the microadenoma with a civilian provider, and no changes in management were made as a result of that independent evaluation.  The applicant had Vitamin D deficiency and was receiving appropriate dietary supplementation for that condition.  He had experienced bilateral hip pain since 2006, and underwent right hip arthroscopy with gluteus medias and gluteus minimus repair in Apr 12.  This surgery was determined to be successful with the exception of post-operative groin pain.  The Orthopedic Surgeon recommended deployment restriction, but noted no job restrictions affecting the applicant’s ability to function as a surgery scheduler.  The applicant’s commander recommended return to duty. 

Because none of the conditions listed as reasons for the submission of the separation RILO package met criteria for referral to the IDES, DPANM was unable to place the applicant on Medical Hold.  IAW AFI 41-210, TRICARE Operations and Patient Administration (version dated 6 Jun 2012), paragraph 4.53.1.6.1., Medical Hold "will not be used for the purpose of evaluating or treating chronic conditions, performing diagnostic studies, elective treatment of remedial defects, non-emergent surgery or its subsequent convalescence, civilian employment issues, preservation of terminal leave, or for any other condition which does not warrant termination of active duty." As a result, the applicant was assigned an ALC-C2 (C-2s can go anywhere in the continental United States, Hawaii and Elmendorf without a waiver, but assignments to Eielson AFB, Alaska, overseas assignments and deployments require a waiver approved by the gaining major command surgeon general), because he required specialist follow-up (Endocrinology) at least annually. 

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

AFPC/DPFD does not provide a recommendation.  The preponderance of evidence reflects that the USAF Physical Disability Division (AFPC/DPFD) never received a referral to the Physical Evaluation Board (PEB).  Therefore, that office could not have processed the case or given the applicant a medical retirement/separation. 

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

AFPC/DPSOR recommends denial indicating there is no evidence of an error or an injustice regarding the applicant’s involuntary discharge, which encompasses the separation program designator (SPD) code, narrative reason for separation, and character of service.  A review of the applicant’s records indicates that his separation was processed in accordance with AFI 36-3207, Separating Commissioned Officers (officers who are twice non-selected for promotion).  He was not selected for promotion by the CY11C lieutenant colonel nurse corps (NC) central selection board, which was the second time he was not selected by the board for promotion.  He was notified by his commander on 26 Mar 12, that a mandatory discharge was required.  The applicant acknowledged receipt of the notification of discharge, and the discharge authority separated the applicant with an honorable discharge.  

A complete copy of the AFPC/DPSOR evaluation is at Exhibit E.  

BCMR Medical Consultant recommends denial indicating there is no evidence of an error or an injustice regarding the applicant’s petition to supplant his involuntary separation with an early medical retirement.  The Medical Consultant was not supplied with the totality of the applicant’s medical documentation, but was provided evidence of selected episodes of care during calendar years 2011 and 2012, along with a series of email inquiries regarding his MEB or the status of the MEB.  The documentation provided revealed his previous diagnosis of OSA, and that he was retained with an ALC C-1, with an approved deployment waiver from USAFCENT/SG officials in Dec 10.  Additionally, medical documentation gave the Medical Consultant an awareness of the spectrum of the applicant’s medical conditions: (1) Hypertension (well controlled on current regimen), (2) Decreased Libido (testosterone level ordered), (3) Depression (well-controlled; continue Zoloft, treated since 09), (4) Gout (plan trial of Allopurinol only for prevention), (5) Hyperlipidemia (intolerant to fibrates or statins; Ilpid panel ordered), (6) Nasal passage blockage (Zyrtec working well), (7) Dermatophytosis/Onychomycosis, right 2nd toe, referred to Podiatry (recorded as big toe in other docs).  The applicant requested an appointment with orthopedics regarding his right hip; which caused “mild constant discomfort,” but which “gets worse when he walks.”  Medical documentation on 4 Jan 12 showed the applicant presented for an Annual Periodic Health Assessment.  Noteworthy are the provider’s words entered, “Had no concerns and is otherwise well.”  Thereafter, the case file contains series of emails reflecting interest expressed by the applicant and his spouse on the MEB process or status of his MEB, over a several month period.

On 28 Aug 12 the orthopedic surgeon provided an updated summary on the applicant’s hip issues; recent surgery appears to have resolved the applicant’s right hip gluteus minimus tendinopathy bilaterally.  He was scheduled to undergo surgery on the left side in the near future and it was hoped to have similar results.  On the same date, an endocrinology second opinion regarding the applicant’s pituitary tumors revealed that symptoms may have been the result of a temporary condition associated with mood disorder or stressful conditions at the time.  Later confirmed a presence of a small adenoma of the pituitary gland which the provider found “not concerning as it was small in size, but would need periodic surveillance, as it may be the cause of why the applicant’s testosterone and growth hormone are low.”  

The applicant’s commander provided mission impact letter, dated 6 Sep 12, to the MEB acknowledging the applicant’s medical condition(s) “precluded him from performing tasks requiring standing for long periods while assisting with surgical procedures and heavy lifting, such as patients and surgical equipment,” but he also discussed the applicant’s value to the organization and ability to perform alternative administrative duties in-garrison, along with a final recommendation for retention.  

Addressing the applicant’s concern for a conflict of interest in the processing of his MEB, according to AFI 41-210, Tricare Operations and Patient Administrative Functions, Section 4K, Medical Evaluation of SMs for Continue Military Service, para 4.57, where MEBs should be accomplished, and subpara 4.57.4, which reads, “Any MTF-assigned officer requiring an MEB shall not meet the MEB at his/her own MTF without a policy waiver from DPAMM.  The MTF Commander may submit a waiver request detailing why an MEB should be conducted at his/her own facility, as well as why the commander has no concern for a conflict of interest.”  No such waiver is present in the applicant’s file.  However, the aforementioned policy statement does not apply in the applicant’s case, since he, instead, underwent a pre-MEB procedure known as a Deployment Availability Working Group (DAWG) review or Review-In-Lieu-Of (RILO) MEB.  Thus, the decision whether or not (and where) to conduct an actual MEB and subsequent referral to a PEB rested with the approval authority at AFPC/DPANM.  In this instance, it was DPANM and not the servicing MTF that returned the applicant to duty with an ALC C2. 

Despite the fact the policies appear to have been properly followed, the Medical Consultant concedes there remains an inherent perception of bias in the applicant’s case, partly due to emails suggesting delays in processing his case and a possible rushed final fit disposition, via a DAWG or RILO review.  However, considering the preponderance of evidence, the Medical Consultant opines the applicant would likely to have still been returned to duty, noting his years of service and the commander’s assessment, even if the DAWG or RILO MEB review was more promptly conducted.  The fact that the applicant underwent successful right hip surgery in Apr 12, was scheduled for another surgery, and was granted requests for second opinions, confounds the implicit allegations of foot-dragging.  Under Title 38, U.S.C., the Department of Veterans Affairs (DAV) is authorized to offer compensation for any diagnosable medical condition with a nexus with military service, without regard to and independent of any proven or demonstrated impact upon a member’s retainability, fitness to serve, or the narrative reason for release from service.  With this in mind, Title 38 U.S.C. was written to allow awarding compensation ratings for conditions that were service-connected, but not individually unfitting during military service or at the time of separation.  



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


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 17 Nov 14 for review and comment within 30 days (Exhibit G).  As of this date, no response has been received by this office.


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 opinions and recommendations of the Air Force offices of primary responsibility (OPR) and the AFBCMR Medical Consultant and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice.  While the applicant’s contentions are duly noted, the evidence of record indicates that he was discharged due to being twice deferred for promotion to the grade of lieutenant colonel and while it seems he suffered from a variety of ailments, none of these conditions rendered the applicant unfit and there is no evidence that the early termination of his career was the result of an unfitting medical condition.  Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief.


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.





The following members of the Board considered AFBCMR Docket Number BC-2014-01156 in Executive Session on 24 Feb 15 under the provisions of AFI 36-2603:

	
The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 20 Jan 14, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPANM, dated 5 May 14, 
	            w/atchs.
	Exhibit D.  Memorandum, AFPC/DPFD, dated 4 Apr 14.
	Exhibit C.  Memorandum, AFPC/DPSOR, dated 19 Jun 14.
	Exhibit E.  Memorandum, BCMR Medical Consultant, dated
	            30 Oct 14.
	Exhibit G.  Letter, SAF/MRBR, dated 17 Nov 14.