RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-01659

  						COUNSEL:  NONE

						HEARING DESIRED:  YES



APPLICANT REQUESTS THAT:

His general (under honorable conditions) discharge be changed to 
a medical retirement.


APPLICANT CONTENDS THAT:

He was on active duty with the Louisiana Air National Guard 
(ANG) when he was diagnosed with multiple sclerosis (MS) and 
optic neuritis.  In July 2009, he met a Medical Evaluation Board 
(MEB) and his case was referred to a Physical Evaluation Board 
(PEB).  He was taken off orders on 30 January 2010 without his 
knowledge and denied TRICARE benefits for medical treatment.

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


STATEMENT OF FACTS:

On 30 July 2009, the applicant was seen by an MEB and his case 
was referred to an Informal Physical Evaluation Board (IPEB) 
with a diagnosis of “Optic Neurites and Muscular Dystrophy.”  
The PEB requested additional documentation from the applicant on 
numerous occasions via email and telephone in order to evaluate 
the applicant’s case.  However, they were unable to contact him.  
Therefore, the MEB was returned without action.

The applicant with 14 years, 9 months and 5 days of total 
service for pay was furnished a general (under honorable 
conditions) discharge on 10 September 2010, under the provisions 
of AFI 36-3209, paragraph 3.13.13 (Failure to Comply with 
Requirement for a Medical Examination).

The Department of Veterans Affairs (DVA), Rating Decision, dated 
February 24, 2015, awarded the applicant a combined evaluation 
for compensation for optic neuritis both eyes with secondary 
optic atrophy, residuals of MS to include mild ataxic gait with 
weakness and constant tingling of legs, and migraines, to 
include migraine variants.

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


AIR FORCE EVALUATION:

The AFBCMR Medical Consultant recommends approval.  He 
recommends changing the record to reflect the applicant was 
found physically unfit by a Physical Evaluation Board and that 
he was retired permanently with a combined disability rating of 
50 percent, which includes a 40 percent disability rating for 
unilateral optic neuritis and left visual field defect, as 
initially determined by the DVA, and a 10 percent disability 
rating for migraine headaches.  Any increase in disability 
ratings by the DVA thereafter would not represent the 
applicant’s level of impairment at the “snap shot” time of his 
military service; whereas the DVA, operating under Title 
38 U.S.C., is authorized to adjust disability ratings as the 
level of impairment due to a given medical condition may vary 
over the lifetime of the veteran.

The applicant was eligible for MEB/PEB processing for his Line 
of Duty (LOD) Optic Neuritis and neuromuscular deficits, later 
attributed to MS.  Notwithstanding the fact that there is no 
clear and unmistakable evidence regarding whether these 
conditions existed prior to service, the fact that the applicant 
was issued orders from 13 February 2008 through 28 May 2008 and 
again from 19 June 2008 through 18 May 2009 [essentially a 
clinical continuum], makes an EPTS determination unlikely.  

With respect to the applicant’s compliance or non-compliance 
with timely submission of requested medical information, there 
is evidence of his active involvement and interest in the 
process through earlier email traffic; although concentrating at 
the time mostly on maintaining his TRICARE and DEERS 
eligibility.  The applicant clearly offered to send reports to 
proper authorities when obtained.  However, the applicant also 
appears to have required a change in civilian neurologists, as 
the initial neurologist appears to have elected to remove 
himself from his case.  It is not known if this factor 
contributed to delays in getting the required medical 
information to his servicing Physical Evaluation Board Liaison 
Officer and, subsequently to the IPEB.  Additionally, the 
telephone number the applicant offered as his “new phone number” 
was apparently disconnected at the time attempts were made to 
contact him.  There is no evidence that either the applicant or 
medical officials sought use of an alternative method of 
communicating, e.g., registered letter to last known address.  
Absent such evidence, the AFBMCR Medical Consultant opines the 
Air Force acted within its authority to discharge the applicant.

While there appears to be no error in the applicant’s discharge 
action, the uncertainty of where the fault lies and possible 
shared culpability, compounded by differing diagnostic opinions 
between civilian providers and the change in providers, leads 
this reviewer to consider depriving the applicant of the medical 
separation or retirement, that was clearly underway, represents 
a probable injustice.

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


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the 
applicant on 1 May 2015 for review and comment within 30 days 
(Exhibit D).  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 not timely filed; however, it is in the 
interest of justice to excuse the failure to timely file.

3.  Sufficient 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 and agree with the opinion and recommendation 
of the AFBCMR Medical Consultant and adopt his rationale as the 
basis for our conclusion the applicant has been the victim of an 
injustice.  As noted by the AFBCMR Medical Consultant, there was 
no error in the applicant’s discharge action; however, the 
differing diagnostic opinions between civilian providers and the 
change in providers could have deprived the applicant of the 
medical separation or retirement that was underway prior to the 
applicant’s discharge process.  Additionally, the applicant’s 
active role during the medical process provides credibility to 
his efforts to obtain proper resolution of his medical 
condition.  Thus, we believe this to be an injustice.  
Therefore, we recommend the applicant’s records be corrected as 
indicated below.

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.


THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air 
Force relating to APPLICANT, be corrected to show that:

a.  On 9 September 2010, he was found unfit to perform the 
duties of his office, rank, grade, or rating by reason of 
physical disability, incurred while he was entitled to receive 
basic pay; that the diagnosis in his case was optic neuritis 
with a visual field defect, and migraine headaches, under 
Department of Veteran Affairs (DVA) diagnostic code 6026-
6080 and 8100; that the combined compensable percentage was 
50 percent; that the degree of impairment was permanent; that 
the disability was not due to intentional misconduct or willful 
neglect; that the disability was not incurred during a period of 
unauthorized absence; and, that the disability was not received 
in the line of duty as a direct result of armed conflict or 
caused by instrumentality of war.

b.  On 10 September 2010, he was not discharged from active 
duty, but effective that date he was medically retired with a 
50 percent disability rating.

c.  His election of Survivor Benefit Plan option will be 
corrected in accordance with his expressed preferences and/or as 
otherwise provided for by law or the Code of Federal 
Regulations.


The following members of the Board considered AFBCMR Docket 
Number BC-2015-01659 in Executive Session on 1 June 2015, under 
the provisions of AFI 36-2603:


All members voted to correct the records, as recommended.  The 
following documentary was considered:

  Exhibit A.  DD Form 149, dated 9 January 2014, w/atchs.
  Exhibit B.  Applicant’s Available Master Personnel Records.
  Exhibit C.  Letter, AFBCMR Medical Consultant,
		      dated 30 April 2015.
  Exhibit D.  Letter, SAF/MRBR, dated 1 May 2015.