RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-03882
		INDEX CODE:  

		COUNSEL:  NONE

		HEARING DESIRED: NO

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APPLICANT REQUESTS THAT:

His return to duty recommendation be reviewed and ultimately reversed.

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APPLICANT CONTENDS THAT:

He was not counseled or advised of the options available to him regarding the Medical Evaluation Board (MEB), the Informal Physical Evaluation Board (IPEB) or medical discharge from the Air Force.  He contends he was not aware he was potentially eligible for disability retirement or severance pay as a result of injuries sustained while on active duty.  Further, he was not given adequate time to reach a decision on whether or not to submit a letter of exception to the IPEB regarding the Board’s findings.  He made the decision to appeal based on being advised that he had to make a decision before the end of that day.  He did not expect the Air Force to return him to duty and to turn the issue over to the Air National Guard (ANG).  Nor was he aware he would be subject to continued evaluation for his fitness for worldwide duty that could result in his discharge from the ANG.

In support of his appeal, the applicant has provided a personal statement and a copy of his medical file pertinent to the Informal Physical Evaluation Board (IPEB), letters of support, email trails, and an early advisory from HQ AFPC/DPPD regarding his AFBCMR application and DPPD’s opinion of the IPEBs decision to forward their findings to the HQ ANG for further disposition.

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

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STATEMENT OF FACTS:

The applicant, a former member of the Florida Air National Guard (FLANG), began his military career on 28 January 1974.  He was progressively promoted to the grade of master sergeant (MSgt) with a date of rank (DOR) of 15 November 2004.  

On 1 December 2001, he was ordered to active duty under United States Code (U.S.C.) Title 10, Section 12302.  On 12 June 2002, he reported to the Naval Air Station (NAS) hospital in Jacksonville, FL, complaining of knee pain as a possible result of a fall sustained six or seven weeks earlier.  On 24 September 2002, an MRI was conducted indicating an injury to his knee that required surgery to correct.  On 18 October 2002, he underwent arthroscopic surgery to repair his knee.  On 22 April 2003, an Air Force Form 348, LOD Determination, was initiated by the 125 Medical Group/SG (125MEDGp/SG) to determine whether or not his injury occurred in the line of duty (LOD).  On 4 May 2003, his commander (125FW/CC) finds his injury to be in the LOD.  In July 2003, 125MEDGp/SG determined the applicant should meet a Medical Evaluation Board (MEB) to determine his fitness for further military service.  On 30 September 2003, with no further medical treatment indicated as necessary, and continuation on orders pending the results of an MEB not authorized by the Air Combat Command (ACC), he was demobilized pending results of the MEB.  On 3 October 2003, the MEB was initiated and HQ ANG/SG requested an additional orthopedic evaluation of the applicant.  On 2 March 2004, an active duty MEB was initiated at Randolph AFB, TX.  On 2 April 2004, he was referred to the Informal Physical Evaluation Board (IPEB) via an AF Form 618.  On 6 April 2004, the PEBLO assigned to his case consulted the applicant by telephone to advise him on the IPEB process along with his rights and benefits.  He advised the PEBLO he would submit a letter of exception to contest the MEB finding of permanent limitation due to knee injury and the concurrent recommendation he separate/retire with an injury deemed incurred while on active duty and permanently aggravated by service.  The letter of exception was sent to the IPEB on 6 April 2004 asking the IPEB to reconsider the original finding of medical disqualification due to injury.  He stated he had knee surgery and it was successful as all damage to his knee was repaired.  He contended he was able to do the duties he would be assigned with no problems.  Additionally, his unit commander and the unit medical commander concurred with his letter of exception.  On 7 May 2004, the IPEB rendered a decision of “Fit – Return to Duty.”  On 19 May 2004, HQ ANG/DPFOC advised HQ ANG/SG of the IPEB’s findings along with a request for review of any possible duty restrictions that may be levied against the applicant.  On 16 June 2004, HQ ANG/SG advised the unit SG that while he was found fit to return to duty he was to remain in P4T status until 31 December 2004.  A request to remove him from P4T status would be resubmitted to HQ ANG/SG for further evaluation not later than 30 November 2004 or sooner should his medical condition change.  On 21 June 2004, the Adjutant General of the Florida National Guard (TAG-FL) was notified of the applicant’s status.  Consequently, he was allowed to perform Inactive Duty Training (IADT) but was not permitted to perform his Annual Training (AT).  On 1 July 2004, he sought an orthopedic evaluation from the Veteran’s Administration (VA) and, on 19 July 2004, he sought an orthopedic evaluation from the Jacksonville NAS hospital.  The applicant requested he be medically discharged or cleared for duty.  On 2 October 2004 and based on the results of the assessments from the VA and the NAS hospital from 1 and 19 July 2004, respectively, the unit SG determined he should undergo another MEB to determine his fitness for worldwide duty.  On 5 October 2004, the unit SG submitted a letter to HQ ANG/SG asking for a reevaluation as the VA and NAS assessments both indicated his medical condition had deteriorated.  On 28 October 2004, HQ ANG/SG advised the unit SG the applicant’s medical condition had not improved and he did not meet medical standards for worldwide duty.  On 5 November 2004, HQ ANG notified his unit that the applicant was medically disqualified from further military service and recommended for discharge.  He was notified of his rights under the Disability Evaluation System (DES) and acknowledged his receipt of the notification on 29 November 2004.  On 8 January 2005, his squadron commander submitted a fitness determination worksheet for HQ ANG/SG wherein he recommended the applicant be retained.  On 11 January 2005, his immediate supervisor wrote a letter also recommending he be retained.  On 20 April 2005, he wrote a letter of appeal to his unit Air Surgeon requesting he be allowed to continue his military duties.  He was transferred to the Retired Reserve effective 1 June 2005 after having served for 26 years, 6 months, and 9 days.
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AIR FORCE EVALUATION:

HQ ANG/DPFOC recommends denial.  DPFOC notes responsible medical personnel within the 125 MDG contend he was properly informed of the MEB and IPEB processes as well as the possible results of Board action on his eligibility for an active duty disability separation and benefits as well as possible VA benefits.  The 125 MDG states he was briefed in October 2003, prior to the MEB and his medical records contain annotations dated early April 2004 that indicate he received counseling by the PEBLO in accordance with Air Force Instruction 36-3212 regarding the IPEB.

DPFOC contends the exact nature and extent of the counseling he received in October 2003 and in April 2004 are not annotated in the available records and it is not possible to ascertain if the PEBLO or others definitively counseled the member he would be potentially eligible for disability retirement or severance pay should he not contest the findings of the MEB that found him unfit for worldwide duty.  

Regarding his contention he was not given adequate time with which to consider his options after being briefed by telephone on 6 April 2004 and was told he had to make a decision that same day, DPFOC cites AFI 44-157 wherein the applicant is allowed up to three days to make a decision to submit a letter of exception to the MEB.  The applicant was given that time frame by members of the 125 MDG to ensure he was expediently counseled.  Thus, he made the decision to submit a letter of exception to the IPEB on that same day.  

As for his contention he was unaware he would be evaluated further regarding his fitness for continued worldwide duty, it is important to note that further review by Air Reserve Component (ARC) medical authorities is a well established practice pursuant to AFI 44-157.  He was placed in a temporary profile status by HQ ANG/SG via an AF Form 422 until 31 December 2004 to allow for complete assessment of his continued fitness for worldwide duty; it is unlikely he was not made aware that he would continue to be evaluated.

In summary, DPFOC contends he was counseled appropriately regarding the MEB/IPEB process.  His affirmative action to file a letter of exception clearly indicated his belief he was fit for continued duty.  After being returned to duty, albeit with restrictions, he ultimately submitted evidence that resulted in the determination of medical disqualification for further service.  DPFOC can find no evidence or error or injustice in this case.

DPFOC’s complete evaluation, with attachments, is at Exhibit B.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 28 October 2005 for review and comment within 30 days.  As of this date, no response has been received by this office.

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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.

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 applicant's submission, we are not persuaded that his uncorroborated assertions of miscounseling, in and by itself, sufficiently persuasive to override the rationale provided by the Air National Guard.  Furthermore, applicant submitted a letter of exception to the IPEB assuring the Board that the surgery on his knee had been successful and he was able to do his duty with no problems.  The unit SG and the unit commander both concurred with his letter of exception.  Consequently, the IPEB reversed their original decision to recommend he be retired/separated and decided instead he be considered fit and that he be returned to duty  Therefore, 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-2004-03882 in Executive Session on 18 January 2006, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 3 Dec 04, w/atchs. 
    Exhibit B.  Letter, ANG/DPFOC, dated 21 Oct 05, w/atchs.
    Exhibit C.  Letter, SAF/MRBR, dated 28 Oct 05.