RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2007- 02814 INDEX CODE: 108.00 XXXXXXXXXXXXXX COUNSEL: XXXXXXXXXXXXX HEARING DESIRED: YES ________________________________________________________________ _ APPLICANT REQUESTS THAT: He be continued on active duty with the New York Air National Guard (NYANG) with retroactive pay and entitlements until such time as his medical evaluation has been completed and he is either returned to full duty or medically retired. ________________________________________________________________ _ APPLICANT CONTENDS THAT: He was illegally removed from his Active Guard/Reserve (AGR) position while undergoing evaluation under the disability evaluation system (DES). In support of his appeal, the applicant provides a statement from his counsel and copies of a Social Security Administration benefits decision; Court’s decision on applicant’s law suit against the New York Air National Guard (NYANG); Medical Board Report; civilian doctor’s statement; recall of Medical Evaluation Board (MEB) Proceedings notification; non-renewal of AGR Tour notification; applicant’s memorandum, dated 7 June 2006; and his appeal of non-renewal of AGR Tour. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ _ STATEMENT OF FACTS: The applicant is currently a member of the NYANG serving in the grade of airman basic. He entered the AGR program in the grade of master sergeant effective 1 January 2001. In 2004, he injured his back. Upon seeking medical care, he was given a temporary medical profile of “P-4” (disqualified for world wide service) and was referred to a Medical Evaluation Board (MEB). On 13 September 2005, the applicant was notified he was non- selected for continuation in the AGR Program and that his current tour would expire on 31 December 2005. The applicant appealed the decision; however, his commander denied the applicant’s appeal. Subsequently, the New York Adjutant General approved an extension to the applicant’s AGR orders to 30 June 2006, pending the results of his MEB. On 5 November 2005, the MEB diagnosed the applicant with Intervertebral Disc Disorder with Myclopathy, Lumbar Region, and other Neurological Conditions incurred while in the line of duty and entitled to basic pay. The MEB referred his case to the Informal Physical Evaluation Board (IPEB). The IPEB report, dated 29 December 2005, indicates the applicant was found unfit for continued military duty because of chronic low back pain due to degenerative disc disease, and it was recommended he be discharged with severance pay with a 20 percent compensable rating. On 21 January 2006, the applicant disagreed with the IPEB findings and recommendation and requested a formal hearing of his case. On 13 March 2006, the applicant had fusion surgery through his civilian medical care. On 31 March 2006, the ANG Air Surgeon (NGB/SG) recalled the applicant’s Formal Physical Evaluation Board (FPEB) to allow him three to five months recovery time from his surgery. The Air Surgeon indicated the FPEB would not be able to adjudicate the applicant’s case until his medical condition was stable or he had reached his maximum medical improvement. On 15 April 2006, the applicant’s physical profile was upgraded to “P-2” (World wide qualified – capable of all basic work commensurate of grade and position). On 18 April 2006, the applicant was notified that his MEB proceedings were recalled and returned without action. The notification indicated that when, in the opinion of medical authorities, he had reached his optimum medical treatment; a decision would be made concerning the need for any further processing through the DES. The notification also indicated that in order to continue his convalescent leave he would need to provide updates on his current medical status. The applicant’s civilian doctor indicated in a letter, dated 19 April 2006, that the applicant was ambulating well without assistance and that he was healing well. On 19 April 2006, his commander notified the applicant that his convalescent leave would expire on 7 May 2006 and requested additional documentation be provided so that a fitness determination could be made. The commander’s letter indicated that without providing sufficient documentation, the applicant would have to request annual leave or report for duty. It also indicated that failure to report for duty, submit annual leave, or provide the requested documentation to extend his convalescent leave would result in him being considered Absent without Leave (AWOL). On 20 April 2006, his commander wrote the applicant’s civilian doctor requesting an update to his medical condition. On 16 May 2006, his doctor responded that the applicant cannot return to work at this time and that he would be starting a course of physical therapy. On 17 May 2006, the NYANG Chief of Aerospace Medicine wrote to the applicant’s doctor for clarification of his recent correspondence asking that if the applicant was ambulating without any difficulty, then why he couldn’t return to work in a limited capacity? According to the applicant’s commander, the applicant and his doctor refused to respond. On 15 May 2006, the applicant was involuntarily discharged from active duty. His DD Form 214, Certificate of Release or Discharge from Active Duty, indicates he has lost time for the periods 23 August 2005 through 19 September 2005 and 9 May 2006 through 15 May 2006. On 16 May 2006, the applicant was notified that he was non-renewed for his AGR tour effective 15 May 2006 and that he was ordered to attend both drill periods of the 3-4 June 2006 Unit Training Assembly. His commander indicated failure to report to duty would result in unsatisfactory participation, punishable under the New York State Military Law. On 19 May 2006, the applicant was notified that he was due for a Periodic Health Assessment (PHA) and was scheduled for a PHA appointment on 3 June 2006. On 30 May 2006, the applicant’s civilian employer (New York City Police Department) notified the NYANG Mission Support Flight Commander that the applicant had returned to his civilian job in a restricted duty status. Beginning 30 June 2006, his unit incrementally extended the applicant’s traditional guardsman enlistment contract six months at a time, for a total of eighteen months pending non-judicial punishment action and an administrative discharge board. Beginning 20 November 2006, the applicant was progressively demoted to the grade of airman basic one grade at a time for specifications of being AWOL and willful disobedience of a superior commissioned officer. The applicant filed a suit against the NYANG; however, the case was dismissed, without prejudice, by the New York Supreme Court, on the basis that the claim was not first brought to the Air Force Board for Correction of Military Records. On 2 June 2007, the applicant received a notice of award from the Social Security Administration of disability benefits retroactive to November 2005. The applicant is currently still a member of the NYANG, as a traditional guardsman, in AWOL status. ________________________________________________________________ _ AIR FORCE EVALUATION: NGB/A1PS recommends denial of the applicant’s request to be reinstated to the AGR Program or for a medical retirement. A1PS states that in accordance with the subject matter expert (SME) (NYANG HQ/JA), the applicant is trying to link his two requests in his application; however, the decision to not renew the applicant’s AGR tour, and the decision by the MEB are two separate and distinct procedures and will be addressed individually. The SME indicates that Air Force Instruction 36-101, paragraph 6.2.2, states personnel will be separated from AGR status at the expiration of their current tour if they are not selected for continuation in the AGR program. The applicant was notified of his non-selection for continuation in the AGR program. This decision was determined to be legally sufficient by the New York State Army National Guard Judge Advocate, and the New York Adjutant General approved the decision. After a probationary period, extensive counseling, and multiple chances at rehabilitation, it was determined that the non-renewal of the applicant’s AGR tour was in the best interests of the ANG. This decision was contemplated as early as June 2003, 18 months prior to any notification regarding his medical complaints. The reasons for his non-selection do not stem from medical disqualification, but rather from his continued misconduct, poor job performance, substance abuse, refusal to follow lawful orders, repeated AWOL occurrences, as well as his negative impact on unit morale. On 6 March 2005, the applicant was intoxicated while on duty and left his duty post for several hours. His commander issued both a verbal and written order for the applicant to submit to a blood alcohol test; however, he disobeyed these orders. Instead, he became belligerent, disrespectful, and completely lost his military bearing. He responded to the commander’s order by stating “I don’t care what that fuck wants, I’m leaving, I ain’t drunk.” After indicating he was going to drive home, he was ordered not to drive his vehicle and was driven home by a member of his unit. This incident occurred three days prior to his scheduled back surgery. Based on his abuse of alcohol as well as his admitted medication usage, his chain of command offered him treatment and counseling; however, he refused these offers. He was subsequently reprimanded for his actions. In addition, the applicant consistently performed poorly as the Retention Office Manager. His actions resulted in numerous members not receiving enlistment and reenlistment bonuses, as well as the loss of numerous other benefits. There are over ten documented cases where his inability to adequately perform his job, resulted in airman either completely missing out on benefits or having to make out of pocket payments for tuition with year-long waits for reimbursement. The applicant was first AWOL on 23 August 2005. Four days earlier, on 19 August 2005, the Chief of Aerospace Medicine cleared the applicant to return to light duty. He was ordered to return to duty on 22 August 2005. Instead, the applicant called his commander and complained of back and scrotum pain; however, he refused to provide supporting documentation. Therefore, his duty status was changed to AWOL. On 9 May 2006, the applicant was again ordered to return to duty, or alternately furnish medical documentation. He did not provide any supporting documentation and failed to communicate, in any form, with his chain of command. His duty status was changed to AWOL on 9 May 2006 and continues to the present day. The SME indicates the inability to medically monitor airmen who are AWOL is contemplated in AFI 36-3212, paragraph 3.21, which states: “A member who incurs an unfitting defect or condition during a period of unauthorized absence or AWOL is not entitled to disability benefits for that defect or condition under Title 10, United States Code, chapter 61.” Because the applicant was AWOL, there was no way to aid in his recovery or secondly, determine when and how his condition worsened. In reference to the applicant’s request for a medical discharge for lower back injury, this condition was first disclosed on 23 February 2005 when he notified his chain of command of his upcoming surgery. Approximately one week later, he abruptly left his duty as Retention Office Manager and has never returned. Following the start of his evaluation through the DES, the applicant decided to have further surgery on 13 March 2006 without notifying his chain of command. The second surgery constituted a potential significant change in his condition. According to AFI 36-3212, paragraph 2.6, “If a major change in the diagnosis or in the member’s condition is discovered, the referring Military Treatment Facility commander must recall the case for further medical evaluation and new medical board or addendum, as appropriate.” Therefore, because of this elective procedure, the FPEB he was undergoing was halted. The termination did not preclude the applicant from commencing a new MEB proceeding. Paragraph 2.6.2 contemplates this very scenario, “when (after recall) a new MEB is received by the IPEB and documentation supports a change to the previous IPEB findings, the case will be sent to the Secretary of the Air Force Personnel Counsel (SAFPC)for finalization.” All that was needed to continue the evaluation process was for the applicant to communicate with the medical staff and provide sufficient medical documentation. Instead the applicant refused to meet with the medical staff and the only documentation he provided was contradictory as to his condition. In an attempt to clarify the ambiguities his uncooperativeness and misleading documentation created, his chain of command ordered him to provide medical updates. In addition, they attempted to contact his physicians, with the goal of clarifying the applicant’s medical condition. However, he refused to allow his private doctors to communicate regarding his condition and personally refused to provide any information himself. The only information communicated was two doctors’ letters. The first, dated 14 April 2006, noted the applicant was “extremely happy with the results of the surgery. He has minimum back pain and much less radiculopathy than preop. He is ambulating well without assistance.” This positive report of his condition was followed a month later by a contradictory report. His doctor unequivocally stated that the applicant could not return to work at that time and was restricted from all activities. Interestingly, he was able to return to his civilian employment during the same time period, albeit in a “restricted duty status.” The discrepancies in what little information the applicant chose to provide, did not provide the medical staff with the requisite documentation needed to renew his MEB. This result rests squarely on the shoulders of the applicant as it is the direct result of his refusal to provide consistent medical documentation, personally meet with medical personnel, or to allow his physicians to consult with the medical personnel. The A1PS evaluation, with attachments, is at Exhibit C. ________________________________________________________________ _ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant’s counsel responds that the NYANG has both ignored their claims and their attempt to re-phrase them. Essentially, they are claiming that the applicant is seeking to be returned to the AGR program, and since he was an indifferent service member, they were justified in the non-renewal of his contract. The simple fact is that his client is claiming the Guard improperly terminated him while he was undergoing medical evaluation. He was seriously injured while on active duty, and rather than provide minimum support, as required by the regulations, they discharged the applicant. This left him with no income or medical coverage. He is not making a claim to be restored to the AGR program. Counsel contends the applicant should not have been released from active duty until a final determination was made concerning his health and extent of any disability. His records should be corrected to reflect he remained on active duty until he was medically retired. The NYANG lied when they claimed that they were never provided with information regarding his client’s condition. The evidence demonstrates the Guard had direct contact with the applicant’s health care providers. The applicant provided a release (attached) and Aerospace Medicine had direct contact with his health care providers. In addition, they had contact with the applicant’s civilian employer regarding his physical condition. Therefore, it is simply incredible that the Guard asserts he did not provide any information regarding his medical condition. Instead, the Guard claims that his client was a “bad” person and thus not entitled to protection of the regulations. These actions should not be condoned. His client’s appeal should be granted. The counsel’s rebuttal, with attachments, is at Exhibit E. ________________________________________________________________ _ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely. 3. Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. We took note of the applicant's complete submission in judging the merits of this case and conclude that while evidence confirms the applicant was initially being evaluated under the disability evaluation system (DES), it was not the factor that led to his non-selection for a concurrent AGR position. We note the ANG followed proper procedures in extending the applicant beyond his original AGR tour completion date in compliance with ANG Instruction 36-101 while he underwent the DES processing. The DES was halted when the applicant chose to undergo an elective surgery. The DES could not be reaccomplished however, as the applicant did not comply with his commander’s orders to provide timely medical documentation concerning his condition or to report for a medical evaluation with military medical personnel. After receiving conflicting information concerning his recovery and information that he had returned to his civilian job, albeit in a limited capacity, the ANG was warranted in changing the applicant’s profile to “P2.” Failure to report for unit training and to report for a medical evaluation has led to his subsequent demotion to the grade of airman basic. In view of the foregoing, we agree with the opinion and recommendation of the Air National Guard office of primary responsibility and adopt their rationale as the basis for our conclusion the applicant has not been the victim of either an error or an injustice. In the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this appeal. 4. The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved. Therefore, the request for a hearing is not favorably considered. ________________________________________________________________ _ 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. ________________________________________________________________ _ The following members of the Board considered this application in Executive Session on 25 June 2008, under the provisions of AFI 36-2603: The following documentary evidence for AFBCMR Docket Number BC-2007-02814 was considered: Exhibit A. DD Form 149, dated 3 Aug 07, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, NGB/A1PS, dated 12 Dec 07, w/atchs. Exhibit D. Letter, SAF/MRBR, dated 4 Jan 08. Exhibit E. Counsel’s Rebuttal, dated 1 Feb 08, w/atchs.