RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF	DOCKET NUMBER: BC-2007-00811
INDEX CODE:  110.02
	XXXXXXXXXXXXXXXXXXXX 	COUNSEL:  Disabled American Veterans

		HEARING DESIRED:  UNKNOWN

MANDATORY CASE COMPLETION DATE:  18 September 2008

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APPLICANT REQUESTS THAT:

She be given an exception to policy to have her permanent disability retirement cancelled so she can be reinstated to active duty based on hardship.  

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THE APPLICANT CONTENDS THAT:

There is no seamless transition from a medical retirement to Veterans Affairs (VA) medical care.  She needs surgeries to fix a tendon tear in her right ankle, reconstruction of the ankle and foot, a lengthy recovery time, and the same surgery for the left ankle.  It will take 9 to 18 months to adjudicate her disability claim with the VA.  Her husband is 100% disabled and is not employable.  Meantime, the financial burden placed upon her and her family is unjust.  Her military personnel officer skills do not adequately translate into the civilian sector human resources skills set.  Even if she is lucky enough to obtain meaningful employment, she will not have built up enough sick leave to cover hospitalization and recuperation time as a result of the surgeries she needs.  Once she was retired, her family was forced to move from Virginia because they own a house in Nevada and cannot afford both the rent in Virginia and mortgage payments in Nevada.  

In support of her appeal, the applicant submits copies of a physician’s letter from Portsmouth Naval Medical Center; Informal Physical Evaluation Board (IPEB) findings and recommended disposition; Medical Board Report with attachments; Medical Standards Branch documentation; electronic communications concerning her appeal; Air Force Personnel Center (AFPC) Commanders response to her request for exception to policy with attachments.  

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

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STATEMENT OF FACTS:

According to the Military Personnel Data System (MilPDS), the applicant served on active duty in the Regular Air Force with a Total Active Federal Military Service Date and Total Active Federal Commissioned Service Date of 3 January 1988.  She was progressively promoted to the grade of lieutenant colonel effective and with a date of rank of 1 December 2003.  

The applicant reported for medical evaluation following her complaint of years of chronic fatigue and chronic muscle and joint pain.  On 15 August 2005, a Medical Evaluation Board (MEB) reviewed the applicant’s records and referred the applicant’s case to an IPEB for further evaluation.  The IPEB findings, dated 19 August 2005, noted the applicant was diagnosed with Myalgia with Polyarthralia associated with Fatigue, Gastroesophageal Reflux Disease, and Obesity.  The IPEB findings stated the applicant’s condition did not prevent her from reasonably performing her duties of her office, grade, rank, or rating; nor did it interfere with her day-to-day duties.  The IPEB recommended the applicant be returned to duty with a reevaluation in nine months following orthopedic and rheumatological evaluations and treatment.  

On 2 October 2006, an MEB diagnosed the applicant with Fibromyalgia, Chronic Ankle Pain with Peripheral Neuropathy, and Obstructive Sleep Apnea.  The MEB referred the applicant’s case to an IPEB.  The IPEB findings, dated 3 November 2006, noted the applicant’s unfitting compensable conditions as Fibromyalgia and mild injury to right extensor digitorium brevis (vs distal deep peroneal nerve palsy), status-post bilateral peroneal nerve compartment release; and, assessed a combined compensable rating of forty-six (46) percent for the two conditions.  In addition, the IPEB found the applicant had unfitting conditions, which were not currently compensable or ratable, of Obstructive Sleep Apnea (requiring use of CPAP) and migraine headaches.  The IPEB also diagnosed the applicant with Obesity which was not separately unfitting, compensable, or ratable.  The IPEB found the applicant unfit due to physical disability incurred in the line of duty and recommended she be permanently retired with a compensable rating of fifty (50) percent.  

On 21 November 2006, the applicant agreed with the findings and recommendation of the IPEB and waived her right to a formal hearing.  The Secretary of the Air Force approved the applicant’s permanent retirement on 21 November 2006.  

The applicant was relieved from active duty effective 11 January 2007 and was permanently disability retired effective 12 January 2007 with a disability rating of fifty (50) percent.  She served 19 years and 9 days of active duty.  

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AIR FORCE EVALUATION:

AFPC/DPPD recommends the applicant’s request be denied.  DPPD states the applicant contends the IPEB was unable to review the neuropsychological tests that were completed on 20 November 2006.  However, she concurred with the IPEB findings one day after the completion of the tests.  The applicant could have non-concurred and requested a hearing with the formal board, bringing the neuropsychological test results with her for their review.  On 18 December 2006, the applicant submitted a hardship request for a 9-12 month extension to allow surgery for both ankles and recuperation time.  The Langley AFB medical treatment SGH and the AFPC Medical Standards Branch noted the proposed surgery was deemed elective and not an immediate requirement of her condition.  Additionally, the surgery would not have rendered the applicant fit enough to return to full military duty.  The request for extension was denied.  Even though the applicant would be covered by TRICARE, she elected to cancel the surgery.  

The DPPD evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

As she expected, the Air Force Office of Primary Responsibility (OPR) provided an opinion within the narrow scope of their purview.  She appeals to the Board to look at the much larger picture and to use their much broader powers to turn wrongs into rights.  She chose not to appeal the IPEB decision to a Formal Physical Evaluation Board (FPEB) because she was advised that she may be taking a risk of being rated lower and only receive a separation versus a medical retirement.  It was her desire to reach 20 years of service – a full career.  She was capable of performing her in-garrison duties.  During the final analysis, based on the advice of her FPEB lawyer and an independent advocate, she felt she had no choice but to accept the findings of the IPEB.  She had to protect the future of her family with a secure retirement income.  She has been trying to find a job for five months without success.  Her VA claim is still pending and she is not eligible for unemployment or Social Security benefits.  Her husband is unemployable and she cannot afford surgery on her ankle with the TRICARE co-pays at this time.  She hopes the Board will right this wrong.  

The applicant’s rebuttal is at Exhibit D.   

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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.  We took notice of the applicant's complete submission in judging the merits of this case and do not find that it supports a determination that her permanent retirement because of physical disability in 2006 was improper or contrary to the provisions of the governing regulations.  Neither does the record reveal nor has the applicant provided any evidence that would lead us to believe that she was physically fit within the meaning of the governing regulation, which implements the law, to return her to active service.  In view of the above, we agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt its rationale as the basis for our conclusions that the applicant has not been the victim of an error or injustice.  Accordingly, the applicant’s request 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 24 October 2007, under the provisions of AFI 36-2603:

	XXXXXXXXXX, Panel Chair
	XXXXXXXXXX, Member
	XXXXXXXXXX, Member

The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2007-00811:

	Exhibit A.  DD Form 149, dated 13 Mar 07, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, AFPC/DPPD, dated 18 Apr 07.
	Exhibit D.  Letter, SAF/MRBR, dated 11 May 07.
	Exhibit E.  Applicant’s Rebuttal, dated 6 Jun 07.

						XXXXXXXXXX
									Panel Chair