RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF: 				DOCKET NUMBER: BC-2014-03528

 						COUNSEL:  NONE

						HEARING DESIRED:  NO 



APPLICANT REQUESTS THAT:

His separation from the Air National Guard (ANG) for non-retention 
be changed to a medical retirement.

The following missing medical documents be put in his medical 
file: (Administratively Corrected)

	AF Form 422, Physical Profile Serial Report, dated 5 March 
2007.

	AF Form 422, dated 5 May 2007.

	Memorandum, medical evaluation appointment, dated 8 January 
2011.

	SF 600, Chronological Record of Medical Care, dated 8 January 
2011.

	Memorandum, medical evaluation appointment, dated 14 May 
2011.

	Doctor’s note, dated 8 September 2011.  

	AF Form 422, dated 15 September 2011.

	Doctor’s note, dated 22 September 2011.

	Doctor’s note, dated 4 October 2011.

	Surgery report, pages 4 and 5, dated 18 November 2011.


APPLICANT CONTENDS THAT:

The missing documents in his medical records are the result of the 
medical squadron not following the procedures in AFI 48-123, 
Medical Examinations and Standards, AFI 10-203, Duty Limiting 
Conditions, and AFI 36-3208, Administrative Separation of Airmen.  

In support of his requests, the applicant provides character 
reference letters and extracts from his medical records, email 
communiqué and other various documents associated with his 
requests.

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


STATEMENT OF FACTS:

On 15 September 2012, the applicant was discharged from the Air 
National Guard (ANG) and on 16 September 2012, he was placed on 
the Retired Reserve List.   

On 1 October 2011, the applicant was notified of his commander’s 
intent to recommend he be discharged from the ANG In Accordance 
With (IAW) AFI 36-3209, Separation and Retirement Procedures for 
Air National Guard and Air Force Reserve Members.  The specific 
reason for the recommendation was erroneous enlistment.  

The commander states that he would not have permitted the 
applicant to reenlist on 15 September 2011 had he been aware of 
his entire fitness history.  The applicant’s Fitness Assessment 
(FA) history was reviewed in detail and it was found that he had 
not met Air Force fitness standards since 12 October 2007 when he 
received a marginal score of 73.5.  He tested in 2008 and 2009 and 
received poor scores.  In 2010, he was exempt from the FA and 
received an unsatisfactory score in May 2011.  He then tested 
again on 10 and 11 September 2011 and received unsatisfactory 
scores.   He had ample opportunity to meet the standards and 
failed to do so.  His inability to meet fitness standards since 
2007 undermined his supervisory authority and reduced his 
effectiveness as a Noncommissioned Officer (NCO) responsible for 
leading subordinates.  

On 1 October 2011, the applicant acknowledged the discharge 
recommendation and requested a hearing.  He indicated he would 
submit statements in his own behalf, make a personal appearance 
before the board and consult legal counsel.  

His NGB Form 22, Report of Separation and Record of Service, 
reflects he was honorably discharged on 15 September 2012, IAW AFI 
36-3209, paragraph 3.12.1, Discharge for the Good of the Service, 
with a separation code of “RBD” which denotes “Sufficient Service 
for Retirement.”  He was credited with 26 years, 10 months and 
19 days of total service for retired pay.

Per Reserve Order EK-6336 dated 6 September 2012, the applicant 
was placed on the Retired Reserve List effective 16 September 
2012.

On 23 June 2015, AFMOA/SGAT scanned the missing medical documents 
noted above into the applicant’s Service Treatment Record.


AIR FORCE EVALUATION:

The BCMR Medical Consultant recommends denial of the applicant’s 
petition to supplant his non-retention action and transition to 
the Retired Reserve with a medical retirement.

Addressing the applicant’s fitness to serve, the AF Form 469, Duty 
Limiting Condition Report, is a key tool utilized by Air Force 
providers to indicate whether a service member is under care for a 
medical condition affecting duty, mobility or requires a Medical 
Evaluation Board (MEB).  Except for the 11th hour AF Form 469 of 
8 September 2012, for a condition determined not in the Line of 
Duty (LOD), none of the applicant’s other AF Forms 469 introduced 
the prospect of a medical condition requiring a MEB/Physical 
Evaluation Board (PEB).  This appears to have paved the way for 
his commander to deny reenlistment.  Determinants of unfitness are 
outlined in DODI 1332.38, Physical Disability Evaluation, and 
several policy statements within this directive could have 
precluded processing the applicant through the Disability 
Evaluation System (DES). 

The applicant provides extracts of AFI 48-123, Medical Examination 
and Standards, demonstrating conditions and defects that are 
potentially disqualifying and/or preclude continued military 
service presumably to bolster his position that he should have 
been placed in a medical hold to undergo a MEB.  The Medical 
Consultant concedes there is evidence of significant 
osteoarthritis of the right knee.  However, none of his service or 
civilian records refer to the presence of joint instability, 
recurrent effusion or locking of the knee; nor frequent 
incapacitation.  In July 2007, he did undergo right shoulder 
surgery however, in December 2007 he was assigned a “U1” profile 
which denotes World Wide Qualified (WWQ) and cleared by his 
provider to perform all aspects of fitness testing.  The 
applicant’s AF Form 469 dated 8 January 2012, documents duty and 
mobility restrictions with an expiration date of 15 March 2012; 
along with a check mark in Block 31, to indicate the condition 
would be resolved within 31 to 365 days.  However, no subsequent 
AF Form 469 was presented after the date of expiration in order to 
specifically determine the more current status of his left 
shoulder and its impact upon his fitness to serve.  The applicant 
also highlighted obstructive sleep apnea requiring use of 
Continuous Positive Airway Pressure (CPAP); however, under today’s 
standards use of the CPAP is not an automatic basis for an unfit 
finding by a PEB.  Although a ratable condition by the Department 
of Veterans Affairs, members are more commonly retained who have 
this condition and, at worse, are placed on a stratified 
Assignment Limitation Code (ALC). 

The Medical Consultant cannot provide implicit misadventure on the 
part of his commander or complicity by military providers; nor is 
he in a position to supplant his clinical judgment with that of 
the treating physicians familiar with his medical condition and 
its impact upon WWQ at the time of his service.  However, based 
upon the periodic assessments of the civilian orthopedic surgeon, 
the Medical Consultant is convinced that his right knee, which 
precluded the performance of high impact activities, albeit 
approved for a permanent waiver, would have likely generated an 
MEB or WWQ determination at some point when such restrictions had 
been imposed for 12 months or more.  Although the military 
providers appear to have been careful not to issue an extended 
“L4” (not WWQ) profile for the applicant’s right knee, the Medical 
Consultant opines the severity of his right knee arthritis and the 
restrictions imposed would be incompatible with the rigors of 
continued military service and raise doubt to his ability to 
function as a Total Force asset.  The Medical Consultant 
considered including the applicant’s more recently operated left 
shoulder as an unfitting medical condition; however, no evidence 
is supplied to indicate the clinical status of this condition or 
whether it rendered him incapable of performing his military 
duties at the time he was released from military service.   

Based upon criteria outlined in the Veterans Affairs Schedule for 
Rating Disabilities (VASRD), the Medical Consultant opines the 
applicant’s right knee would rate at least 10 percent but not 
greater than 20 percent under VASRD code 5003.  Such a rating 
decision would still only give the applicant the option of a 
medical separation with severance pay and not a medical 
retirement.  Although otherwise justifiable, supplanting his 
current length of service Reserve Retirement with severance pay 
could be considered a longer-term detriment to him. 

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


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

He disputes the facts in the BCMR Medical Consultant’s advisory.  
He is not alleging anything and has provided AFI references and 
copies of letters from his doctors.  

The medical squadron did not follow Air Force regulations.  He 
presented evidence of physical disabilities and they were not 
vetted according to procedures outlined in the regulations.  He 
was encouraged to stay in contact with his former command and 
provide necessary documentation that would be needed during the 
DES process.  However, they never contacted him and did not do 
their part.

His orthopedic surgeon dispatched a memorandum characterizing his 
degree of osteoarthritis as grade 3, on a scale of 1 through 4, 
where 4 represents exposed bone.  His orthopedic surgeon stated 
that reflecting upon past surgical history and significance of 
arthritic wear, that it would be very difficult for him to stand 
and walk for long periods of time.  Thereafter, in August 2012 he 
underwent a sleep study which demonstrated obstructive sleep 
apnea.  He knows this is medically disqualifying.  In a 20 August 
2012 e-mail, he was told that his medical condition would be 
reviewed at drill and that the doctor could sign off the paperwork 
that would be sent to the Force Support Squadron (FSS) showing 
that he had a disqualifying condition.  

He knows three individuals who received medical separations for 
sleep apnea.  He asks how he is different and why he is being 
singled out.  He was not treated fairly.  There are inaccuracies 
in the evaluation and it changes the meaning of what is being 
said.  This is not fair to him.

He provides his points history and asks if there is anything else 
that he could provide in his case.  The BCMR Medical Consultant 
makes him feel that his doctor is not credible.  He also makes him 
feel that the regulation is not important.  His orthopedic and 
spine center is a reputable place and they take care of athletes 
from Fresno State University and other individuals from the 144th 
have gone there, to include pilots.  

The applicant’s complete submission, with attachment, is at 
Exhibit E.


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.  While the 
applicant's assertions that he was treated differently from others 
is noted, he has not provided substantial evidence which, in our 
opinion, successfully refutes the assessment of his case by the 
BCMR Medical Consultant.   Therefore, we agree with the opinion 
and recommendation of the BCMR Medical Consultant and adopt the 
rationale expressed as the basis for our decision that the 
applicant has failed to sustain his burden of proof that he has 
suffered an error or injustice.  We also note that the AFMOA/SGAT 
added the missing medical documents noted above to his medical 
records; therefore, this request is moot.  In view of the above 
and in the absence of evidence to the contrary we find no basis to 
recommend granting the additional relief sought in this 
application.


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-2014-03528 in Executive Session on 14 April 2015 under the 
provisions of AFI 36-2603:

	 , Panel Chair
	 , Member
	 , Member

The following documentary evidence was considered:

Exhibit A.  DD Form 149, dated 24 Jul 14, w/atchs.
Exhibit B.  Applicant's Master Personnel Records.
Exhibit C.  Memorandum, BCMR Medical Consultant, dated 23 Feb 15.
Exhibit D.  Letter, SAF/MRBR, dated 9 Mar 15.
Exhibit E.  Letter, Applicant, undated, w/atch.