RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBER:  BC-2003-03437
INDEX CODE:  108.00
	XXXXXXXXXXXXXXX				COUNSEL: NONE

	XXXXXXXXXX					HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT: 

Her military records be corrected to show she was placed on the Temporary Disability Retirement List (TDRL) or she be permanently retired for physical disability with a rating of at least 30%, her grade of staff sergeant (E-5) be restored, and she be awarded back pay and benefits back to her date of release from active duty. 

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APPLICANT CONTENDS THAT:

She was deprived of her right to a full and fair hearing as contemplated by the statute, Title 10, United States Code (USC), Section 1214.  Upon receiving the results of her Informal Physical Evaluation Board (IPEB), she was improperly advised by the Wilford Hall Medical Center staff concerning her rights and responsibilities.  She was never advised of her right to request a Formal Physical Evaluation Board (FPEB).  She was advised that the IPEB results were final and that she was required to sign the Air Force Form 1180 accepting them.  

In support of her application, the applicant provides her counsel’s brief, and copies of her service medical records; correspondence from the Department of Veterans Affairs (DVA), and documentation of award and personal appreciation contesting to the applicant’s character.  The applicant’s complete submission, with attachment, is at Exhibit A.

On 16 October 2003, prior to the Air Force advisories being written, the applicant’s counsel wrote the Board withdrawing from the applicant’s case and requesting the Air Force advisories be forwarded to the applicant.

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STATEMENT OF FACTS:

On 3 February 1986, the applicant enlisted in the Regular Air Force at the age of 18 in the grade of airman basic (E-1) for a period of four years.  After completing basic training, the applicant was trained as a personnel specialist; however, in 1990 she cross-trained into the Cardiopulmonary Laboratory Journeyman career field.  She was progressively promoted to the grade of staff sergeant (E-5) with a date of rank of 1 September 1996.  

In February 1994, the applicant underwent an arthroscopy stemming from a knee injury, sustained in February 1994.  On 6 October 1998, the applicant’s records met a Medical Evaluation Board (MEB).  The MEB determined the applicant suffered from chronic left knee patellofemoral arthralgia, and that it was incurred while entitled to basic pay.  The MEB recommended she be continued on active duty and referred her records to the IPEB for evaluation.  A statement from the applicant’s commander, dated 14 October 1998, indicated the applicant was capable of performing all duties without restriction and noted that even though her job performance had been satisfactory, her numerous medical appointments hindered her performance.  Her commander continued to state that if it were not for her physical profile, she would be capable of worldwide deployment.  

The IPEB’s findings, dated 28 October 1998, stated the applicant was unfit because of physical disability, her disability was incurred in the line of duty, and the degree of impairment might be permanent.  The IPEB recommended the applicant be discharged with severance pay with a ten percent disability rating.  

On 13 November 1998, the applicant agreed with the findings and recommendation of the board and consequently, on 20 November 1998, the Secretary of the Air Force approved the IPEB’s findings and directed that the applicant be separated from active service for physical disability under the provisions of 10 USC 1203, with severance pay.  

On 19 January 1999, the applicant was separated with an honorable discharge effective under Air Force Instruction 36-3212, with a narrative reason for separation as disability, severance pay.  She had served 12 years, 5 months, and 15 days on active duty.

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AIR FORCE EVALUATION:

The BCMR Medical Consultant is of the opinion that no change in the applicant’s records is warranted.  The BCMR Medical Consultant states that the applicant was disability discharged with severance pay for left knee patellofemoral pain syndrome (patellofemoral arthralia).  Evidence of the record shows that the applicant continued to perform her military duties in an exemplary fashion except she was unable to perform the Air Force aerobic test (cycle ergometry); had exceeded Air Force weight standards; and could not deploy, an increasingly important tasking of Air Force medical personnel, particularly critical care specialties such as cardiopulmonary technicians.  The IPEB properly determined she was unfit for continued military service and properly rated her knee condition.  The DVA has also similarly rated her knee condition at ten percent as of four years after the IPEB rating.  The applicant concurred with the findings and recommendation of the IPEB.  Although the applicant had a variety of other medical problems, none were unfitting at the time she was evaluated in the Disability Evaluation System (DES) for her knee pain.  The mere presence of a medical condition does not qualify a member for disability evaluation.  For an individual to be considered unfit for military service, the medical condition must prevent performance of work commensurate with rank and experience.  The BCMR Medical Consultant is of the opinion that action and disposition in this case were proper and equitable reflecting compliance with Air Force directives that implement the law.  The BCMR Medical Consultant’s evaluation is at Exhibit C.

AFPC/DPPD recommends denial of the applicant’s request.  DPPD states that the preponderance of evidence, other than her own testimony, does not indicate an injustice occurred at the time of her disability processing to show she was denied her right to appear before the FPEB.  This is indicated on the AF Form 1180, signed by the applicant herself, which clearly gave her three options on the election form.  It is the opinion of DPPD that the applicant was treated fairly throughout the DES process and, she was properly rated under Federal disability guidelines as required by military laws and policy in effect at the time of her evaluation.  DPPD wholeheartedly agrees with the comments and recommendation from the BCMR Medical Consultant.  The DPPD evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In her response to the Air Force evaluations, the applicant stated she is very bothered by the Air Force advisories.  Since her departure from the military, she feels she was given a bad deal.  She lives with daily pain in her knee.  She is not sure why she was not properly advised on her options; however, she does know that she did not sign in the block concurring with the IPEB’s findings and her subsequent release from the military.  The applicant’s rebuttal is at Exhibit F.

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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 not timely filed; however, it is in the interest of justice to excuse the failure to timely file.

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 and do not find that it supports a determination that the applicant was improperly separated from active duty in 1999.  An IPEB found the applicant unfit for continued military service and recommended she be discharged with severance pay with a ten percent disability rating for her knee condition.  We note the applicant signed an Air Force Form 1180 concurring with the findings of the IPEB, and accepted $43,466.40 in severance pay.  In view of the above and absent persuasive evidence that the applicant was denied rights to which entitled, appropriate regulations were not followed, or appropriate standards were not applied, we agree with the opinions and recommendations of the Air Force advisories and adopt their conclusions as our findings in the case.  Accordingly, the applicant’s request is not favorably considered.  

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.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application.

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The following members of the Board considered this application in Executive Session on 11 August 2004, under the provisions of AFI 36-2603:

The following documentary evidence for AFBCMR Docket Number BC-2003-03437 was considered:

    Exhibit A.  DD Form 149, dated 9 Oct 03, with atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, BCMR Medical Consultant, dated 3 Mar 04.
    Exhibit D.  Letter, AFPC/DPPD, dated 21 Apr 04.
    Exhibit E.  Letter, SAF/MRBR, dated 30 Apr 04.
    Exhibit F.  Applicant’s Rebuttal, undated.