RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-00677
		INDEX NUMBER:  110.00
	XXXXXXX	COUNSEL:  None

	XXXXXXX	HEARING DESIRED:  No

_________________________________________________________________

APPLICANT REQUESTS THAT:

His Reenlistment Eligibility (RE) code be changed from “2Q,” “Personnel medically retired or discharged,” to one that will allow his reentry into the Air Force.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The disability for which he was discharged did not exist prior to service as indicated on his DD Form 214.

In support of his appeal, applicant references the claim he filed with the Department of Veterans Affairs (DVA).

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

_________________________________________________________________

STATEMENT OF FACTS:

Applicant entered active duty in the Air Force on 26 Dec 96.  According to the Medical Evaluation Board (MEB) report, Applicant was seen on 19 Jan 97 in the medical clinic for pain to his left knee.  Applicant indicated that he had caught his left foot in webbing on the confidence course and fell.  Applicant was treated and given a waiver from running and physical conditioning.  On  20 Jan 97, Applicant was seen in consultation by Orthopedics and told that as his pain decreased over the next 1-2 weeks, he could resume training.  However, the Applicant was seen at the medical clinic again on 28 Jan 97 and it was noted that his knee was worse.  On 31 Jan 97, Applicant was seen again because he fell down stairs and re-injured his left knee.  His exam was unremarkable and he was referred back to Physical Therapy.  On   5 Feb 97, Applicant was re-evaluated by the Chairman of the Department of Orthopedics.  It was recommended that administrative disposition be pursued due to his inability to meet medical standards/participate in basic training.  Applicant indicated he wanted to remain in the Air Force so he was given an additional waiver from running and physical conditioning.  He was subsequently given several more waivers.  On 24 Mar 97, he was told that his waiver time was over and he had to return to training.  Applicant indicated that if he returned to training he would fail.  On 25 Mar 97, an MEB diagnosed Applicant as having Patellar-Femoral Syndrome unresponsive to conservative therapy based on his statement that he could not continue training.  The condition was determined to have existed prior to service (EPTS) and to not have been permanently aggravated by service.  It was recommended that Applicant be referred to an Informal Physical Evaluation Board (IPEB).

On 14 Apr 97, the IPEB convened and diagnosed the applicant as having Patellofemoral Syndrome, left knee, EPTS, without service aggravation.  The IPEB recommended that Applicant be discharged under other than chapter 61, 10 U.S.C.  On 15 Apr 97, Applicant indicated that he did not agree with the findings and recommended disposition and demanded a formal hearing of his case.  He was scheduled to report to the Formal PEB (FPEB) on   21 Apr 97.  However, on 22 Apr 97, Applicant submitted a request to waive the FPEB due to having received an explanation of the IPEB’s findings and recommendations from his counsel.  Applicant indicated that he now wanted to concur with the IPEB findings and recommendations.  In his request, the applicant also indicated his understanding that if the waiver were approved, he would have no further right to demand a formal hearing without substantial new evidence.  The applicant’s waiver was approved on 22 Apr 97.  On 23 Apr 97, the Secretary of the Air Force Personnel Council (SAFPC) directed that the applicant be separated from active service for physical disability due to a condition that existed prior to service.

On 28 Apr 97, the applicant’s Training Squadron Commander requested a delay in the PEB proceedings due to the applicant having been placed on administrative hold pending an investigation for mal-training/mal-treatment of other trainees.  The applicant was removed from administrative hold on 29 Apr 97.  He was discharged on 1 May 97 with an RE code of “2Q.”

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPD recommends denial of Applicant’s request.  Applicant’s BCMR application states his contested medical condition did not exist prior to service and is supported by his claim to the DVA.  However, a DVA rating decision, dated 6 Mar 98, refers to a statement from a Dr XXXXX expressing that Applicant had a minor knee injury prior to military service and apparently had no problems when he entered active duty.  The DVA decision was reconsidered following Applicant’s rebuttal and they ruled in his favor and rated his left knee as service connected.  Applicant failed to provide supporting evidence that his left knee problem did not exist prior to his military service.

The complete 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 30 Apr 04 for review and comment within 30 days.  To date, a response has not been received.

_________________________________________________________________

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 error or injustice regarding the applicant’s request to change his code to one that will allow him to reenlist.  Although we agree with the Air Force office of primary responsibility regarding the determination of the applicant’s medical condition as EPTS, we believe the determination by the DVA that the applicant’s medical condition is service connected creates the appearance of an injustice.  While we recognize that the DVA system and the Air Force systems are separate and distinct, we believe that in the interest of justice the applicant should be given the waiverable code of “3K” whereby he may reenter service provided he meets the necessary requirements for enlistment and is granted a waiver.  We do not support changing the narrative reason for his separation since we believe it is correct and should be documented in his records.  Therefore, we recommend that his records be corrected as indicated below.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that at the time of his discharge on 1 May 1997, his Reenlistment Eligibility (RE) code was RE-3K.

_________________________________________________________________

The following members of the Board considered Docket Number BC-2004-00677 in Executive Session on 21 July 2004, under the provisions of AFI 36-2603:

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

     Exhibit A.  DD Form 149, dated 22 Mar 04, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Memorandum, AFPC/DPPD, dated 22 Apr 04.
     Exhibit D.  Letter, SAF/MRBR, dated 30 Apr 04.

                                   

AFBCMR BC-2004-00677

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 at the time of his discharge on 1 May 1997, his Reenlistment Eligibility (RE) code was RE-3K.