RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBERS:  BC-2004-00085
		INDEX CODE 108.02, 110.02
	 	COUNSEL: 

	 	HEARING DESIRED:  No

_________________________________________________________________

APPLICANT REQUESTS THAT:

His 1992 voluntary separation under the Special Separation Benefit (SSB) early release program be changed to a disability retirement for knee problems.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Prior to and during the offer of the Voluntary Separation Incentive (VSI)/SSB programs, he was medically removed from his career field but Medical Evaluation Boards (MEBs) were never convened.  His commander briefed him to take the money and get out because his normal career field was overstaffed and so was the one he was in.  The medical problems shown at the Department of Veterans Affairs (DVA) Compensation and Pension (C&P) exams are the same as those he had on active duty.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 24 Jun 76 for a period of four years.  He was honorably released from active duty in the grade of sergeant on 23 Jun 80 after four years of active service and transferred to the Air Force Reserves.

He reenlisted in the Regular Air Force on 15 Nov 83.  During the period in question, he initially was an aircraft electro-environmental systems specialist instructor with the 3370 Technical Training Group at Chanute AFB, IL.  He then was assigned to the 86th Maintenance Squadron in Ramstein AB, Germany, as an electro/environmental specialist.

The applicant injured his left knee playing softball in Oct 87, resulting in arthroscopic surgery in Jan 88.  He tore the medial meniscus of his right knee squatting down to pick up a ball in Apr 90, which led to arthroscopic surgery in Nov 90 in an attempt to repair the tear.  He initially did well post-operatively but then experienced a sudden pop and pain during rehabilitation leading to his second arthroscopy on the right knee in Mar 91, which revealed the initial repair had failed and the tear had increased in size.   

He continued to experience pain, which limited his duty performance.  He was placed on physical profiles restricting running, aerobics, squatting or bending.  The profile dated 21 Aug 91, indicated the applicant was pending an MEB and recommended cross training to “administrative type duties due to chronic knee weakness and pain.”  No further documentation of an MEB being required or accomplished is found in the records.  

The decision to process a member through the military Disability Evaluation System (DES) is determined by a MEB when he/she is determined disqualified for continued military service.  The decision to conduct an MEB is made by the medical treatment facility providing health care to the member.

The applicant applied for cross training in Sep 91 and his request was approved on 23 Dec 91.  He interviewed for the education and accounting/finance career fields and qualified for both.  He instead accepted training for a career as a Separation Specialist on 6 Jan 92, with training to begin on 11 Jan 92.

The applicant underwent a third right knee arthroscopic surgery on 27 Jan 92 due to continued symptoms of popping and pain.  Findings showed a degenerative tear of the right medical meniscus with other aspects normal.  At the time of a 25 Mar 92 follow-up appointment, examination demonstrated no swelling, a full range of motion (ROM), and improving strength.  The applicant reported occasional recurrent swelling.  The surgeon recommended continued strengthening exercises and follow-up as needed for symptoms.

In Jan 92, early separation programs were implemented to draw down the Armed Forces (177,000 in the Air Force) and the Air Force aggressively encouraged eligible members to separate under the VSI/SSB program.  The VSI program offered payment of an annuity paid for twice as many years as the member’s length of service, but required service in the Ready Reserve for the length of the VSI payment.  SSB offered a single lump sum and required three years of service in the Ready Reserves.  The applicant opted for the SSB and his training was cancelled on 16 Mar 92.

The applicant’s separation exam on 27 Mar 92 cleared him for separation while reporting a history of pain in both knees, multiple knee surgeries, and that the applicant complained of still having problems.

On 15 Jul 92, the applicant was voluntarily and honorably released from active duty in the grade of staff sergeant after 13 years, 8 months and 1 day of active service, under the provisions of the SSB program, and transferred to the Air Force Reserves.  He received a lump sum payment of approximately $34,418.88.  On 15 Jul 95, after three years, the applicant was honorably discharged from the Air Force Reserve.  

_________________________________________________________________

AIR FORCE EVALUATION:

The AFBCMR Medical Consultant advises the mere presence of a medical condition does not qualify a member for disability evaluation.  The Consultant discusses the differences between the military and DVA medical evaluation systems.  Although the applicant was medically disqualified from his original career field due to knee pain, his condition was not the cause for termination of his career.  Had he not applied for cross-training and undergone evaluation in the DES, his condition was not severe enough to warrant a rating entitling him to a disability retirement.  At the time of his separation medical exam, placing the applicant on “medical hold” (retention on active duty for disability evaluation of medical conditions) for purposes of MEB was not indicated.  Active duty members who develop medical problems during the final 12 months of their active duty period (i.e., have a scheduled retirement or separation as in this case) are presumed fit for continued active duty unless there is clear and convincing evidence to the contrary.  For members who are in the process of retiring or separating, medical hold is not approved for the purpose of evaluating or treating chronic conditions, performing diagnostic studies, elective surgery or its convalescence, other elective treatment of remedial defects, or for conditions that do not otherwise warrant termination of active duty through the DES.  Furthermore, when there has been no serious deterioration within the presumptive period (i.e., the final 12 months of active service), the ability to perform duty in the future shall not be a consideration.  Therefore, denial is recommended.

A complete copy of the evaluation is at Exhibit C.

HQ AFPC/DPPD found no basis to correct the applicant’s medical records to reflect a disability retirement.  The applicant was treated fairly throughout the disability process and was not erroneously briefed concerning his rights at the time of his election to separate under SSB.  DPPD agrees with the Medical Consultant’s advisory and determines no injustice or error occurred in the process leading to the applicant’s retraining and election to separate under SSB.  The applicant’s request should be denied.

A complete copy of the evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Complete copies of the Air Force evaluations were forwarded to the applicant on 27 Aug 04 for review and comment within 30 days.  As of this date, this office has received no response.

_________________________________________________________________

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 error or injustice.  After a thorough review of the evidence of record and the applicant’s submission, we are not persuaded his voluntary separation under the provisions of SSB should be changed to a disability retirement. The applicant’s contentions are duly noted; however, we do not find these assertions, in and by themselves, sufficiently persuasive to override the evidence of record and the rationale provided by by the AFBCMR Medical Consultant.  We therefore adopt the rationale expressed in the advisory opinions as the basis for our decision that the applicant has not sustained his burden of having suffered either an error or an injustice.  In view of the above and absent persuasive evidence to the contrary, we find no compelling basis to recommend granting the relief sought.

_________________________________________________________________

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.

_________________________________________________________________

The following members of the Board considered this application in Executive Session on 21 October 2004 under the provisions of AFI 36-2603:

			
The following documentary evidence relating to AFBCMR Docket Number BC-2004-00085 was considered:

  Exhibit A.  DD Form 149, dated 5 Dec 03, w/atchs.
  Exhibit B.  Applicant's Master Personnel Records.
  Exhibit C.  Letter, AFBCMR Medical Consultant, dated 20 Jul 04.
  Exhibit D.  Letter, HQ AFPC/DPPD, dated 13 Aug 04.
  Exhibit E.  Letter, SAF/MRBR, dated 27 Aug 04.

                                   Panel Chair