RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-00698

	XXXXXXX	COUNSEL:  NONE

	XXXXXXX	HEARING DESIRED: NO

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APPLICANT REQUESTS THAT:

His administrative separation for non-participation be changed to a medical retirement.

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APPLICANT CONTENDS THAT:

He was discharged due to non-participation of drills.  He has a line-of-duty (LOD) injury that prohibited his participation.  The proper procedures were not followed, nor was he given proper medical treatment.  He has been dealing with this injury and its complications since January 1995.  It has progressively gotten worse to the point where he can no longer maintain employment.  He has lost his civilian job and has been separated from the military with seventeen years of service.  This has been handled badly from the time he was injured and needs to be corrected.  If he is medically unfit to serve, due to an LOD injury, he should be retired medically from the time of injury.

In support of his appeal, the applicant has provided documentation extracted from his medical records, documentation associated with his LOD determination, documentation associated with his Department of Veterans Affairs (DVA) claim, and documentation associated with his Medical Evaluation Board (MEB) findings.

His complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

Applicant enlisted in the Marines on 14 February 1984 and was progressively promoted to the grade of lance corporal (E-3).  He was honorably discharged after serving 4 years of military service.  He served in the Arizona Air National Guard from 22 August 1989 through 13 March 1998.  He enlisted into the Air Force Reserves on 23 May 2000 for a period of 6 years.  On 15 March 2002, he was assigned to the obligated Reserve section due to non-participation.  

From 6 June 1986 until 31 July 1986, the applicant’s records reflect he experienced back problems during his early career while in the Marine Corp. 

In January 1995, an LOD investigation was conducted to determine the details of a back injury that occurred while he was deployed.  The investigation concluded that he suffered a back injury while deployed.  0n 31 August 1995, the commander determined the injury was In-LOD and that he could perform limited duty.

An MEB reviewed his condition on 14 February 1996 and recommended he be returned to duty.  The physician indicated that there were no objective findings on physical evaluation or radiographic evaluation to explain why he could not perform his assigned tasks in the Air National Guard.  

On 13 January 2000, an LOD investigation was conducted to determine the details of an incident that occurred while he was performing a 3-mile walk on 4 December 1999. 

On 6 May 2000, the investigation concluded that he has performed many physical activities over the course of the previous several years without any restrictions or concerns for a back injury.  There is no evidence to suggest he suffered any injury as a result of his 3-mile walk.  If there was an injury, it did not happen when he was performing his normal military duties.  The injury found was not In LOD because the injury existed prior to service.  JA concurred with the determination.

On 23 May 2000, the applicant’s supervisor, with the concurrence of the deputy commander, did not recommend him for reenlistment.  

On 24 October 2001, applicant was notified that he had 12 unexcused absences and was subjected to involuntary reassignment, involuntary discharge, or recall to active duty (Palace Chase) unless unexcused absences are excused. 

On 31 January 2003, the Veterans Affairs awarded the applicant a combined disability evaluation of 30 percent.

The applicant’s AF Form 526, ANG/USAFR Point Credit Summary, dated 1 April 2004, reflects he has 15 years of satisfactory service and 4 years of unsatisfactory service.

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AIR FORCE EVALUATION:

AFRC/DPZ recommended denial.  According to AFRC/SG’s review, the applicant was placed in a no military duty status (4 profile) on 13 January 2000 based on his claims of having a back injury.  He was required to bring in supporting medical documentation to his Reserve medical unit (944 MDS).  After repeated failures to provide 944 MDS with the requested medical information and keeping medical appointments, he was returned to military duty on 6 May 2000.  The effective dates of his "4" profile status were 13 January 2000 through 6 May 2000.  Apparently, the member satisfactorily performed his military duty between the dates of 6 May 2000 and July 2001, when his unsatisfactory participation started.  Review of the medical documentation provided does not show he reported back to the 944 MDS with further medical complaints regarding his back.  There is an 8 July 2000 entry in his military medical records, which indicates that he had returned to the 944 MDS, and completed a periodic non-fly physical exam.  That was the last medical entry found in his records before the start of his unsatisfactory participation.  

The DPZ evaluation, with attachment, is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant states he has been dealing with an injury that first occurred in June 1986.  Being young and somewhat trusting, he listened to military doctors when they said that he only "had a strain, it’s nothing."  He was honorably discharged and joined the Arizona National Guard.  He dealt with recurring flare-ups of his injury in order to maintain good standing in his military career.  In January 1995, he was involved in an accident in Columbia, South American compounding the existing injury.  When he returned to Arizona, he reported his injury and an LOD determination was conducted. 

Since January 1995, his injury has continually increased in pain.  He missed numerous days of civilian employment due to it and was fired from his civilian job due to excessive absences.  He had to file against his employer to prove that the absences were due to injury and beyond his control.

He has seen many civilian specialists that have diagnosed and documented his injury.  He has argued with the Veterans Administration for two years to prove his injury to them.  He has lost a job making eighty thousand dollars a year due to this injury.  He has filed bankruptcy due to his loss of income.  His quality of life has diminished to the point that he is no longer physically active and has lost forty pounds since 1995. He has been informed that he was “Voluntarily reassigned to the obligated Reserve section.”  The only thing that he voluntarily did was enlisted in 1984, 1988, and 1998.  He guesses four consecutive enlistments is not proof of his military commitment and intent.  He placed his belief in the military as an eighteen-year-old kid, and twenty years later has found that he was sadly mistaken.  His completion submission, with attachments, is at 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.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice that would warrant correction of his records to reflect that he was medically separated from the Air Force Reserves.  After a thorough review of the evidence of record, it is our opinion that under the circumstances of this case, administrative separation for non-participation was proper and in compliance with the appropriate directives.  No evidence has been presented which would lead us to believe a physical disability existed that would have warranted a finding of unfitness in accordance with the governing instruction which implements the law.  The purpose of the military Disability Evaluation System (DES) is to maintain a fit and vital force by separating members who are unable to perform their duties because of a physical disability.  The mere presence of a physical defect, however, does not qualify a member for disability retirement or discharge.  The defect or conditions must render the member unfit for duty.  Therefore, we agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  In the absence of persuasive evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

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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 AFBCMR Docket Number BC-2004-00698 in Executive Session on 13 Oct 04, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 9 Mar 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFRC/DPZ, dated 14 Jun 04, w/atch.
    Exhibit D.  Letter, SAF/MRBR, dated 1 Jul 04.
    Exhibit E.  Letter, Applicant, dated 30 Jul 04, w/atchs.