RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:		DOCKET NUMBER:  01-02189
			INDEX CODE:  110.00
			COUNSEL:  NONE

			HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

Her voluntary retirement for years of service be set aside, and she be awarded a disability retirement.
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APPLICANT CONTENDS THAT:

Since she had an established date of retirement, she believes the Informal Physical Evaluation Board (IPEB) could not get past the presumption of fitness rule and never considered the alternatives allowed by AFI 36-3212, paragraph 3.17.2.  Her medical doctors provided an incomplete recommendation to the IPEB that did not accurately reflect her record.  Therefore, she should have been medically retired.

In support of her submission the applicant provided a personal statement, copies of a letter from 14MDG/SGO, MEB report, her Air Force retirement physical, VA rating decision, and numerous medical reports.  The applicant’s complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

The applicant was appointed a second lieutenant, Reserve of the Air Force on 30 June 1970 and was voluntarily ordered to extended active duty on that same date.  She was integrated into the Regular Air Force on 25 July 1973 and was progressively promoted to the rank of colonel.  She was released from active duty on 31 July 1998 and voluntarily retired for length of service on 1 August 1998.  She was credited with 28 years, 3 months, and 25 days of total active federal military service. 

The remaining relevant facts pertaining to this application, extracted from the applicant’s military records, are contained in the letters prepared by the appropriate offices of the Air Force at Exhibits C and D. 

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AIR FORCE EVALUATION:

The BCMR Medical Consultant reviewed applicant's request and recommends denial.  The Medical Consultant states that the her 28 years of service were marked by 26 years of low back pain that she relates to her experience driving a half-ton pickup truck in Thailand in 1972.  Through the ensuing years she was treated for multiple back complaints along with knee and foot problems that led to multiple surgeries, in spite of which she continued to perform admirably as noted in her performance reports dating through January 1997, the last one found in her records.  She additionally underwent a hysterectomy and bilateral ovary removal following infections associated with use of an intrauterine contraceptive device.  Other medical problems were fibromyalgia, shingles, migraine headaches, and a myriad of other problems which are detailed in her retirement physical examination performed in July 1998 when she was found fit for service or retirement.  Since retirement, she has been seen by the Department of Veterans Affairs (DVA) system and received a rating of 80%, 50% of which is for her hysterectomy.  Her back problems, which have led to further surgery since the DVA decision, were rated at 20%.  The Physical Standards Section found she had not overcome the presumption of fitness rule in determining she did not qualify for a disability retirement.  She contests this decision based on her perception that she was not fulfilling her duties as a colonel in the Air Force and that her ROTC students deserved better than what she was able to provide.  Again, her performance records do not indicate a diminution in her abilities or performance.

For an individual to be considered unfit for military service there must be a medical condition so severe that it prevents performance of any work commensurate with rank and experience.  Once this determination is made, namely that the individual is unfit, disability-rating percentage is based upon the member's condition at the time of permanent disposition.  In this instance, the applicant's conditions had not rendered her unfit for continued military service, and she has continued to hold down a full-time job in her retirement.  Clearly, the hysterectomy for which she is most highly compensated was not an unfitting condition for her continued service, and the other conditions were not of such severity to have overcome the presumption of fitness that applies in the last year of one's service for conditions that have been known for a period of time but which do not progress in severity to such an extent as to render the individual incapable of performance of his/her duties as would occur with a catastrophic and sudden change.  Records do not show that this was the case, and her present appeal should not receive favorable consideration.  Evidence of record establishes beyond all reasonable doubt that the applicant was properly evaluated, that retirement for length of service was proper, and that no error or injustice occurred in this case.  

In response to additional information submitted by the applicant, the BCMR Medical Consultant provided an addition advisory in which he states that the information provided outlines her present limitations, but, does not add additional information that would change previous decisions regarding her condition at the time of her retirement.  Changes one experiences in the period following separation or retirement cannot be applied retroactively to the person’s period of active duty.  Such changes are to be considered in the DVA reviews of one’s status in the years following retirement where compensation may change with the changing disabilities.  The Medical Consultant is of the opinion that the additional information provided in the "Functional Exam/Assessment (FCE)" in no way alters the findings at the time of the applicant’s retirement that would warrant reconsideration for a disability retirement.  The Medical Consultant’s evaluation is at Exhibit C.

AFPC/DPPD reviewed applicant's request and recommends denial.  DPPD states the disability processing records reflect that the applicant was presented before an MEB on 26 Feb 98, and her case referred to the Informal Physical Evaluation Board (IPEB) for adjudication.  The board, following their review, determined that none of her medical conditions were severe or grave enough to overcome the presumption of fitness under the provisions of Department of Defense Instruction 1332.38, and recommended that she be returned to duty.  Records indicate that her voluntary retirement at that time had already been approved for 1 Aug 98. Active duty and Ready Reserve members undergoing an MEB who are subsequently determined fit for duty do not have entitlement to a Formal PEB since such a finding does not cause an involuntary separation for a physical disability.  Individuals who are pending retirement at the time they are referred for a physical disability evaluation enter the disability evaluation system under a rebuttal presumption that they are physically fit.

The applicant’s military records reflect that her retirement physical conducted on 9 Jun 98 found her qualified for worldwide duty with no disqualifying physical profiles and clearly reflect she was reasonably capable of performing her duties right up until the time of her approved retirement.  This is further attested to in her performance reports and again in her citation in which she was awarded the Legion of Merit.

DPPD states the applicant’s medical records reflect that she was treated for various conditions throughout her military career.  The fact that a person may have been diagnosed with a medical condition does not automatically mean that they are unfit for continued military service.  To be unfitting, the medical condition must be such that the condition by itself precludes the member from fulfilling the purpose for which he or she is employed.  If a member is referred to an MEB/PEB, and the board renders a finding of unfit, the law provides appropriate compensation to the individual due to the premature termination of his or her career.  Further, USAF disability boards can only rate a member's medical condition based upon his or her medical state at the time of their evaluation; in essence a snapshot of the condition at that time.

DPPD states that following their examination of the file, DPPD determined that the member did not overcome the presumption of fitness at the time of her processing through the military disability evaluation system, and that her return to duty was appropriate and in accordance with military disability laws and policy.  Based on the above conclusions, DPPD found no reason that would justify correcting her records to reflect that she was awarded a disability retirement.  The medical aspects of this case are fully explained by the Medical Consultant; they agree with his advisory.  The member has not submitted any material or documentation to show she was unfit due to a physical disability under the provisions of Chapter 61, Title 10, USC, at the time of her service retirement.  The DPPD evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force Evaluations were forwarded to the applicant for review and response.  As of this date, this office has received no response (Exhibit E).

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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.  Sufficient relevant evidence has been presented to demonstrate the existence of probable injustice that would warrant the applicant's evaluation through the Air Force Disability Evaluation System.  At the recommendation of her physician, the applicant was referred to a Medical Evaluation Board (MEB).  The MEB, which convened on 26 Feb 98, reviewed her medical history and found that her medical conditions, which she incurred while she was entitled to receive basic pay, were permanently aggravated by military service and recommended that her case be forwarded to the Physical Evaluation Board (PEB) for disability consideration.  However, the Informal Physical Evaluation Board (IPEB) determined that none of her conditions were severe or grave enough to overcome the presumption of fitness rule and recommended that she be returned to duty.  The presumption of fitness rule states that service members who are pending retirement at the time they are referred for physical disability evaluation are under a rebuttable presumption that they are physically fit.  The applicant believes that because she already had an established retirement date, the IPEB could not see past the presumption of fitness rule, and therefore, she did not receive fair consideration under the DES.  In his recommendation to the MEB, her physician opined that her chronic pain in her back and multiple extremities had deteriorated to the point where he did not consider her qualified for worldwide duty.  In support of her request, she provided credible evidence from the MEB board members which indicated that her condition had acutely exacerbated to the point where her ability to perform her daily activities were significantly deteriorated and that she was often unable to complete her military duties.  The physicians went further and provided additional medical documentation along with a statement that indicated inadequate data was provided to the IPEB for consideration of her case.  In addition, a statement provided by her supervisor has led us to believe that her medical conditions had seriously inhibited her ability to perform her duties during the last few years of her tenure.  

The presumption of fitness rule is overcome when within the presumptive period, a serious deterioration of a previously diagnosed condition occurs and the deterioration would preclude further duty if the individual were not retiring; or, when a chronic condition exists and a preponderance of evidence establishes that the member was not performing duties befitting his or her experience in the office, grade, rank, or rating before entering the presumptive period.  We are inclined to believe that the aforementioned evidence provided by the applicant meets the criteria that would overcome the presumption of fitness rule.  We are also inclined to believe that because of the constraints of the presumption of fitness rule, the applicant may not have received fair and full disability consideration.  However, it remains our opinion that a duly constituted PEB, would be in the best position to make such a determination.  In view of this, we believe that the interest of justice can best be served by having the applicant reevaluated by the disability evaluation system.  We note that during this evaluation, if the applicant disagrees with the IPEB findings, she will have the right to present her case before a Formal PEB.  Therefore, we recommend that her records be corrected to the extent indicated below.

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THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that invitational travel orders be issued by competent authority for the purpose of evaluation by a Medical Evaluation Board (MEB) and a Physical Evaluation Board (PEB).

It is further recommended that the results of the evaluation be forwarded to the Air Force Board for Correction of Military Records at the earliest practicable date so that all necessary and appropriate actions may be completed. 

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The following members of the Board considered Docket Number 01-02189 in Executive Session on 10 Apr 02, under the provisions of AFI 36‑2603:

Panel Chair
Member
Member

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

    Exhibit A.  DD Form 149, dated .
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, BCMR Medical Consultant, dated 24 Oct 01.
    Exhibit D.  Letter, AFPC/DPPD, dated 19 Nov 01.
    Exhibit E.  Letter, SAF/MRBR, dated 30 Nov 01.
    Exhibit F.  Letter, BCMR Medical Consultant, dated 17 Dec 02.
    Exhibit D.  Letter, SAF/MRBR, dated 30 Jan 02.

					

AFBCMR 01-02189

MEMORANDUM FOR THE CHIEF OF STAFF

	Having received and considered the recommendation of the Air Force Board for Correction of Military Records and under the authority of Section 1552, Title 10, United States Code (70A Stat 116), it is directed that:

	The pertinent military records of the Department of the Air Force relating to XXXXX, be corrected to show that invitational travel orders be issued by competent authority for the purpose of evaluation by a Medical Evaluation Board (MEB) and a Physical Evaluation Board (PEB).

	It is further directed that the results of the evaluation be forwarded to the Air Force Board for Correction of Military Records at the earliest practicable date so that all necessary and appropriate actions may be completed.