RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-01135
		INDEX NUMBER:  145.00
	XXXXXXX	COUNSEL:  
	XXXXXXX	HEARING DESIRED:  Yes

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APPLICANT REQUESTS THAT:

It appears that the applicant is requesting that the entry-level separation she received for a defective enlistment be voided and she be given a disability discharge.

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APPLICANT CONTENDS THAT:

In a four-page Brief of Counsel, with attachments, applicant’s counsel outlines the applicant’s arguments in support of her request.

Her discharge for a defective enlistment was wrong and the rationale for her separation was and is factually inaccurate.

The applicant was fully forthcoming regarding her prior elbow injury.  The injury that occurred to her elbow on 21 Jan 03 was the aggravation of an existed prior to service (EPTS) condition.

The applicant’s injury was misrepresented to avoid placing her in the disability evaluation system (DES).

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

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STATEMENT OF FACTS:

The applicant entered the Air Force on 14 Jan 03.  On 28 Jan 03, she was notified by her training squadron commander that he was recommending her discharge from the Air Force for erroneous enlistment, based on a medical summary, dated 27 Jan 03, that found that the applicant did not meet minimum medical standards to enlist and should not have been allowed to join the Air Force due to a left elbow injury.  The applicant was also advised that she was not recommended for a disability separation because medical staff found her unqualified.  The applicant acknowledged receipt on 28 Jan 03, waived her right to counsel and to submit statements on her behalf.  She also acknowledged that if discharged for the reasons stated, she would not be entitled to any disability, retirement, or severance pay.  The training squadron commander recommended to the group commander that the applicant be discharged for the reasons stated above.  The discharge action was reviewed by the training wing deputy chief of military justice and found to be legally sufficient to support her separation, subject to inclusion in the file of a report of medical examination showing the applicant to be qualified for worldwide duty.  On 28 Jan 03, the training group commander approved the applicant’s entry-level separation with service as uncharacterized.

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AIR FORCE EVALUATION:

AFPC/JA recommends denial of the applicant’s request.  They discuss below the central issues of counsel’s arguments.

The medical waiver for the applicant’s prior elbow injury was incorrectly given at the time of her in processing.  The Air Force’s mistake in allowing the applicant to in process was the basis of the subsequent administrative discharge under AFI 36-3208 for Erroneous Enlistment.  Assuming that the waiver was proper, a waiver pursuant to AFI 48-123 does not provide a bar to subsequent administrative discharge.  Paragraph 8.1.2.3 specifically provides for invalidation of a waiver if the patient’s medical status changes.

Regarding a determination of line of duty (LOD), whenever a military member has a disease or injury that results in an inability to perform military duty for more than 24 hours or will likely lead to permanent disability, a LOD determination as to the cause of the disease or injury is required.  On a determination of Existed Prior to Service (EPTS), AFR 36-2910, paragraph 1.9.2 states that an injury will be considered EPTS if the disease or injury, or the underlying condition causing it, existed before the member’s entry into military service and was not aggravated by service.  LOD processing is not required for injuries that existed prior to active duty and not service aggravated.  Service aggravation is defined as a preexisting condition made worse, as opposed to being rendered temporarily symptomatic, (1) by a specific external event (e.g., a slip and fall) which is otherwise LOD or (2) in the case of internal process (e.g., heart attack) by special demands of military service.  In the applicant’s case, her left elbow was dislocated prior to her entering the Air Force.  The fall during basic training did not cause the condition or worsen it.  The fall rendered the prior injury temporarily symptomatic and disqualified the applicant from further service.  With the applicant’s injury being found EPTS, further LOD processing was not required.

Eligible members whose military service is cut short due to a service-related physical disability incurred in the line of duty are eligible for benefits under the disability system.  Otherwise, they are usually involuntarily administratively separated.  Pursuant to AFI 36-3208, paragraph 5.13.3, an Erroneous Enlistment is one the Air Force should not have accepted, but does not involve fraud.  An Erroneous Enlistment based on failure to meet physical standards may be waived, but as indicated in the applicant’s medical records, was preventing her from completing training.  The applicant was ineligible for a physical disability separation because her injury was not incurred in line of duty and was determined to be EPTS.

The complete evaluation is at Exhibit C.

AFPC/DPPRS recommends denial of the applicant’s appeal.  Based on their review of the documentation in the applicant’s file, they believe that her discharge was consistent with the procedural and substantive requirements of the discharge regulation.

AFPC/DPPRS also advised that they noted an administrative error on the applicant’s DD Form 214 and have issued a new DD Form 214 changing the separation code from “JFW” to “JFC” and the narrative reason for separation from “Failed Medical/Physical Procurement Standards” to “Erroneous Enlistment.”

The complete evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant’s counsel responded to the Air Force evaluations.  Counsel states that the applicant was not separated because of a pre-existing condition, which was aggravated by active duty service.  Counsel states that the active duty injury to the applicant’s elbow did not render it temporarily symptomatic.  The applicant’s injury was not temporary as the applicant underwent physical therapy for two months.  Counsel opines that this is clearly a service aggravation case.

Counsel’s complete submission is at Exhibit F.

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ADDITIONAL AIR FORCE EVALUATION:

Pursuant to the Board’s request, the BCMR Medical Consultant evaluated the applicant’s appeal.  He recommends that the applicant’s records be corrected to show service-connected injury with disability discharge rated at 10%.

Evidence of record indicates that the applicant’s functional outcome from her pre-service injury was good and that her injury while in basic training was not merely a transient aggravation of a chronic condition, but rather a new, distinct injury to the same elbow.  Basic trainees with similar injuries are frequently kept on active duty for up to six months to receive treatment and resume training upon recovery.  If the service-incurred injury does not improve sufficiently they are referred for evaluation in the disability evaluation system.

Based on limited medical information from the applicant’s physical therapy/occupational therapy, it is not clear whether the applicant’s condition has recovered or if there is permanent residual impairment.  Based on the nature of the injury and the results of the orthopedic examination, complete recovery appeared to be the expected result.  Based on the available evidence, the left elbow would have rated zero percent under VASRD codes for elbow loss of range of motion.  However, the Physical Evaluation Board (PEB) may have rated the associated mild pain with decreased grip strength no more than 10 percent.

The BCMR Medical Consultant concludes that the applicant’s injury while on active duty was a distinct, new injury to the left elbow and not a transient exacerbation of an existing prior to service condition.

The complete evaluation is at Exhibit G.

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APPLICANT”S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Applicant’s counsel responded that he agrees with the additional Air Force advisory prepared by the BCMR Medical Consultant.

Counsel’s complete response is at Exhibit I.

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SECOND ADDITIONAL AIR FORCE EVALUATION:

Since AFPC/JA made their recommendation to deny the applicant relief prior to the BCMR Medical Consultant’s review of the case and his subsequent recommendation to grant the applicant a measure of relief, they were asked to review their recommendation in light of the BCMR Medical Consultant’s evaluation and determine if it would change their original recommendation.  Upon review of the BCMR Medical Consultant’s findings, AFPC/JA recommended that the applicant’s records be corrected to reflect a service-connected injury with disability discharge at 10 percent rating (Exhibit J).

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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 error or injustice.  In view of the recommendation of the BCMR Medical Consultant and AFPC/JA’s subsequent recommendation to grant the applicant relief in an addendum to their evaluation, the majority of the Board agrees that the applicant should be granted relief.  The majority of the Board believes that the BCMR Medical Consultant’s findings provide a reasonable basis to conclude that the injury to the applicant’s elbow while on active duty was a new and distinct injury rather than EPTS.  We note the BCMR Medical Consultant’s observation that basic trainees with similar injuries are frequently kept on active duty for up to 6 months to receive treatment and resume training upon recovery.  If the service-incurred injury does not improve sufficiently, they are referred for evaluation in the disability evaluation system.  This did not happen in the applicant’s case, apparently, because clinic personnel determined that the applicant’s injury was EPTS.  The BCMR Medical Consultant appears to believe that there is the possibility of an incorrect determination since clinic personnel rather than orthopedics made the determination.  Additionally, although the applicant was initially treated by orthopedics after her injury, she was not provided a recommended follow up examination with them.  Given the possibility of an incorrect determination, the majority of the Board believes that the benefit of the doubt should be given to the applicant.  Given that the applicant disclosed her previous elbow injury during her enlistment physical and was given a waiver, the majority of the Board believes that the Air Force could and should have been more thorough in their evaluation of the applicant’s active duty injury, thereby resolving the doubt that now exists.  Therefore, the majority of the Board recommends that the applicant’s records be corrected as 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:

	a.  On 27 January 2003, she was found unfit to perform the duties of her office, grade, rank or rating by reason of a physical disability incurred while entitled to basic pay; that the diagnosis was for her elbow injury pain, VASRD Code 5307, rated at 10 percent; that the degree of impairment was a permanent condition; that the disability was not due to intentional misconduct or willful neglect; that the disability was not incurred during a period of unauthorized absence; the disability was received in line of duty; and that the disability was not the direct result of armed conflict or caused by an instrumentality of war.

	b. On 28 January 2003, she was not released from active duty under the provisions of AFI 36-3208, Chapter 5, Section C, Paragraph 5.14, under Basis for Erroneous Enlistment, but on that date, she was discharged from active duty for a physical disability under the provisions of AFI 36-3212.

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The following members of the Board considered this application in Executive Session on 29 April 2004 and 26 May 2004, under the provisions of AFI 36-2603:

By majority vote, the Board voted to correct the records, as recommended.  Mr. XXX voted to deny relief, but did not desire to submit a minority report.  The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 19 Apr 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFPC/JA, dated 18 Jun 03.
    Exhibit D.  Memorandum, AFPC/DPPRS, dated 9 Jul 03.
    Exhibit E.  Letter, SAF/MRBR, dated 10 Jul 03.
    Exhibit F.  Memorandum, Counsel, dated 5 Feb 04.
    Exhibit G.  Memorandum, BCMR Medical Consultant, dated
                18 Mar 04.
    Exhibit H.  Letter, AFBCMR, dated 19 Mar 04.
    Exhibit I.  Memorandum, Counsel, dated 29 Mar 04.
    Exhibit J.  Memorandum, AFPC/JA, dated 5 May 04.

                                   
                                   Panel Chair

AFBCMR BC-2003-01135

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 XXXXXXX, XXXXXXX, be corrected to show that:

		a.  On 27 January 2003, she was found unfit to perform the duties of her office, grade, rank or rating by reason of a physical disability incurred while entitled to basic pay; that the diagnosis was for her elbow injury pain, VASRD Code 5307, rated at 10 percent; that the degree of impairment was a permanent condition; that the disability was not due to intentional misconduct or willful neglect; that the disability was not incurred during a period of unauthorized absence; the disability was received in line of duty; and that the disability was not the direct result of armed conflict or caused by an instrumentality of war.

		b. On 28 January 2003, she was not released from active duty under the provisions of AFI 36-3208, Chapter 5, Section C, Paragraph 5.14, under Basis for Erroneous Enlistment, but on that date, she was discharged from active duty for a physical disability under the provisions of AFI 36-3212.

		
		Director
		Air Force Review Boards Agency