RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBER:  BC-2007-01247
								INDEX CODE:   108.04, 110.03, 
                                               131.09, 145.06
	XXXXXXXXXXXXXXXXXX			COUNSEL:  NONE

								HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

He be granted a military retirement as a disabled veteran with the rank of technical sergeant (E-6).

He be retroactively reinstated into the Air National Guard (ANG) until his Medical Evaluation Board (MEB) is finalized.

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APPLICANT CONTENDS THAT:

Air Force Instruction (AFI) 36-3212, Physical Evaluation for Retention, Retirement, and Separation, paragraph 4.5, states that members undergoing an MEB must not be retired, discharged, or released from active duty for any reason until notification is received from the Secretary of the Air Force (SECAF).  No such notification has been given concerning his right knee problems.

There are ongoing errors and injustices.  He had a difficult time as he left active duty.  He was fired from his civilian job because of these errors and injustices for the very things they convened [sic] found he did not commit.  This case deserves a second look and merits actions in his favor as nothing can be gained by hiding these matters from scrutiny.

In support of his appeal, he has provided copies of his NGB Form 22, National Guard Bureau Report of Separation and Record of Service, his DD Form 214, dated 3 March 2004, a 12 August 2004 letter from the 89th AMDS/SGPFB concerning his placement in MEB channels, a 29 October 2003 letter from OSD/P&R addressing Personnel on Medical Hold, and numerous documents from his military medical records.

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

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STATEMENT OF FACTS:

The applicant enlisted in the ANG on 23 November 1984, and was activated on 1 February 2003 in support of OPERATION IRAQI FREEDOM (OIF).  On 20 February 2003, he was deployed to a classified OCONUS location, and, on 26 February 2003, it was determined that he should be returned to his home station due to an old versus new anterior cruciate ligament tear in his right knee.  He was subsequently returned to his home station and remained on active duty.  Following a course of conservative treatment and limited duty profiles, he underwent knee surgery on 31 July 2003, and was subsequently released from active duty on 3 March 2004. 

On 4 August 2004, the applicant was evaluated for psychiatric illness by an MEB.  The MEB concluded that the applicant did not currently, or in the past, have any psychiatric symptoms, and although he has had conflict with several supervisors, these have not been the result of a psychiatric illness.  The MEB stated that he was medically acceptable, recommended he be returned to duty without psychiatric limitations, and if he continued to have conflict, administrative channels should be pursued over a psychiatric MEB.  

In January 2007, the applicant was notified that he was being recommended for an administrative discharge due to his failure to comply with National Guard Bureau (NGB) dental requirements.  His AF Form 422, Physical Profile Serial Report, dated 8 January 2007, states that his previous profile for non-compliance had expired on 17 November 2006, he remained in Dental Class 4, and that NGB members with a known dental condition who refuse to comply with a request for evaluation are considered medically unfit for continued military duty.  On 29 January 2007, the applicant applied for voluntary transfer to the Retired Reserve, effective 29 March 2007, and was subsequently transferred to the Retired Reserve, awaiting pay at age 60, in the grade of staff sergeant (E-5.)  His date of birth is 20 April 1961 (age 46) and he completed 22 years, 4 months, and 5 days of net service. 

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AIR FORCE EVALUATION:

The 113th MSF/DP recommends denial of any relief.  Per Air National Guard Instruction (ANGI) 36-2502, Section 1.1.2, “prior to promotion to any grade, the immediate commander must first recommend the airman.  This recommendation must be based on a period of time sufficient to permit a substantive evaluation of the airman’s total performance.”  There is no evidence in the applicant’s military personnel records to substantiate a recommendation for promotion to the grade of technical sergeant (E-6).  In addition, in accordance with section 1.3.7 of the same ANGI, he became ineligible for promotion after he voluntarily requested transfer to the Retired Reserve on 29 January 2007 after receiving notice of his being recommended for an administrative discharge due to his failure to comply with NGB dental evaluation requirements.  Since he has already retired, any further disability processing should now be accomplished through the Department of Veterans Affairs (DVA).

The 113th MSF/DP evaluation is at Exhibit C.

NGB/SGPD recommends denial of applicant’s request for reinstatement into the ANG to complete Disability Evaluation System (DES) processing.  He was in the process of being administratively discharged due to his failure to comply with NGB dental evaluation requirements, and he can pursue further disability processing through the DVA.

The NGB/SGPD evaluation is at Exhibit D.

NGB/A1PS recommends denial of any relief, and concurred with the advisories of the 113th MSF/DP and NGB/SGPD.

The ANG/A1PS evaluation is at Exhibit E.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant stated that a response was not necessary if a fair and objective consideration of his family and his behalf has been concluded, and furnished copies of a personal statement, a VA Patient Profile, dated 7 December 2007, an 8 December 2007 memo to Attorney General Gerstenfield, and an e-mail trail with SAF/MRBR.

The applicant’s complete response, with attachments, is at Exhibit G.

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ADDITIONAL AIR FORCE EVALUATION:

With the collective presumption of regularity in the execution of the applicant’s discharge and transfer to the Retired Reserve, and the available medical evidence of record, the BCMR Medical Consultant is of the opinion no change in the records is warranted.

The applicant requested and received a transfer to the Retired Reserve in lieu of an administrative discharge.  Based upon the knee pathology (severe degenerative joint disease) prior to his transfer, it is reasonable to conclude that he may not have been able to adequately perform the rigors of his security forces occupation, particularly under the austere operational conditions and physical stressors confronting all members of today’s Air and Space Expeditionary Force.  Additionally, although he was released from active duty in 2003 to perform his civilian occupation, a U.S. Army orthopedic surgeon recommended that he be placed on “permanent profile” restrictions as early as 24 April 2003.  If the aforementioned duty restrictions were present for at least 12 months, then an MEB would have been undertaken.  However, his case never entered the Military Disability Evaluation System (MDES); therefore, he would not have received notification from the SECAF or his designee regarding his fitness to serve or the disposition of his case.  Had the applicant undergone an MEB for his right knee condition, his case likely would have been referred to an Informal Physical Evaluation Board (IPEB) for a determination of his fitness to serve and, had he been found unfit for duty, the IPEB would then have determined an appropriate disability rating under the appropriate disability rating code.  Based upon a preponderance of medical evidence, to include his clinical history, physical assessment, and radiographic reports, it is likely he would have been found unfit for duty, but the severity of his condition would not likely have risen to the threshold for the medical retirement he desires under the applicable disability rating code choices.

Nonetheless, the record does reflect that approximately 11 months later, the applicant did undergo an assessment for an MEB.  However, the MEB Narrative Summary did not include a discussion of his knee ailment, but was instead limited to an assessment of a possible psychiatric disorder.  His case was not referred for adjudication by a Physical Evaluation Board (PEB), and there is no accompanying medical documentation to reflect his inability to perform his military duties, or to perform drill for pay, between the dates of this MEB Narrative Summary and the time of his election to transfer to the Retired Reserve in January 2007.   Although the record reflects that officials within the Physical Evaluation Board (PEB) Liaison Office briefed him on MEB procedures, there is no accompanying evidence that any formal MEB procedures ever took place.

Addressing the applicant’s eligibility for disability compensation through the MDES, although his injury was considered to be in the line-of-duty, the record reflects that a significant element of his knee pathology was not the result of his 26 February 2003 knee injury, but was due to severe degenerative arthritis, a condition that existed prior to his activation (EPTS) on 1 February 2003.  In such cases, an EPTS factor would have been taken into consideration in the disability rating computation for that aspect of his knee condition that appears to have been above and beyond the expected natural progression of his degenerative arthritis.  Specifically, the evidence of “severe degenerative joint disease and osteophyte formation” identified in his health record as early as June 2003 are highly indicative of a longer standing degenerative disease process that likely predated his activation and injury in February, 2003.  Nonetheless, since he was reportedly asymptomatic and presumed fit to deploy on 1 February 2003, it can be concluded his subsequent chronic knee pain is principally the result of a de novo injury and the subsequent permanent aggravation of his pre-existing arthritic condition.  While it is reasonable to hypothesize that his physicians may have errantly elected not to pursue an MEB for his knee condition in 2003, it is not reasonable to conclude that he was retained in drill status for over three years thereafter, only to be transferred to the Retired Reserve upon notification of involuntary discharge action, which raises doubt as to his true ability to function despite his knee condition.

The MDES is chartered to maintain a fit and vital fighting force and can only, by law, offer compensation for the medical condition(s) that cut short a service member’s career, and then only to the degree of severity present at the time of final disposition.  Documents reflect the applicant’s knee condition was not the cause for cutting short his Air Force career; rather, it was his election to transfer to the Retired Reserve.  Nonetheless, although he did not receive disability compensation through the MDES, he is eligible to receive disability compensation through the DVA for any service-connected medical condition without regard to its proven or demonstrated impact upon the performance of military duties.

Should the Board elect the alternative hypothesis that the applicant should have undergone an MEB for his knee condition, a recommendation for discharge with severance pay with a 20 percent disability rating is appropriate.  The BCMR Medical Consultant finds this disability arrangement to be consistent with the 10 percent disability rating for “traumatic arthritis” and separate disability rating of 10 percent for an unspecified “knee condition” awarded to him as shown on a presumably DVA outpatient medical statement dated 7 December 2007.  Additionally, since he had achieved at least 20 satisfactory years at the time of his transfer to the Retired Reserve, he would still have the choice of accepting either the medical discharge with severance pay or a length-of-service retirement at age 60, but not both.

The BCMR Medical Consultant’s evaluation is at Exhibit H.

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APPLICANT'S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATION

A complete copy of the AFBCMR Medical Consultant evaluation was forwarded to the applicant on 8 January 2008, for review and comment, within 30 days.  However, 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.

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 the case; however, we agree with the opinions and recommendations of the Air Force offices 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.  The applicant’s contentions are noted; however, he voluntarily requested and received a transfer to the Retired Reserve in lieu of an administrative discharge, and there is no evidence in his military medical records that his medical case was ever entered into the MDES prior to his voluntary retirement.  The MDES can only, by law, offer compensation, to include a medical retirement, for the medical condition (s) that cut short a service member’s career, and then only to the degree of severity present at the time of final disposition.  Documents reflect the applicant’s knee condition was not the cause for cutting short his Air Force career; rather, it was his election to transfer to the Retired Reserve.  We note that although he did not receive disability compensation through the MDES, he is eligible to receive disability compensation through the DVA for any service-connected medical condition without regard to its proven or demonstrated impact upon the performance of military duties.  Additionally, there is no evidence in the applicant’s military personnel records to substantiate he was ever recommended for promotion to the grade of technical sergeant.   Therefore, in the absence of 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 Docket Number BC-2007-01247 in Executive Session on 13 March 2008, under the provisions of AFI 36-2603:

				XXXXXXXXXX, Chair
				XXXXXXXXXX, Member
				XXXXXXXXXX, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 20 Apr 07, w/atchs.
    Exhibit B.  Automated Records Management System Extract.
    Exhibit C.  Letter, 113th MSF/DP, dated 13 Jul 07, w/atchs.
    Exhibit D.  Letter, NGB/SGPD, dated 19 Oct 07.
    Exhibit E.  Letter, NGB/A1PS, dated 6 Nov 07.
    Exhibit F.  Letter, SAF/MRBR, dated 16 Nov 07.
    Exhibit G.  Letter, Applicant, dated 8 Dec 07, w/atchs.
    Exhibit H.  Letter, BCMR Medical Consultant, dated 6 Jan 08.
    Exhibit I.  Letter, SAF.MRBR, dated 8 Jan 08.

                                   XXXXXXXXXX
                                   Chair