ADDENDUM TO RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:	BC-2007-03623 COUNSEL:	NONE
HEARING DESIRED:	YES

APPLICANT REQUESTS THAT:
1.	His corrected Reserve retirement, effective 23 Feb 06, be rescinded and his name be placed on the Temporary Disability Retired List (TDRL) effective that date, with the appropriate compensable disability rating.

2.	He be assigned to a patient medical squadron at a Medical Treatment Facility (MTF) to receive entitled medical care.

3.	He be given his entitled hearing to properly evaluate he medical condition.

4.	The Board make recommendations to the appropriate offices to pursue those who may be guilty of criminal acts.

STATEMENT OF FACTS:
On 6 Jun 05, the Medical Evaluation Board (MEB) diagnosed him with degenerative disc disease at L4-5 and discogenic pain and recommended his record be forwarded to the Informal Physical Evaluation Board (IPEB). On 18 Jul 05, the Informal PEB (IPEB) diagnosed him with chronic low back pain with degenerative disc disease at L4-5. They recommended a disability discharge with severance pay, with a 10 percent rating. On 17 Nov 05, the Formal PEB (FPEB) diagnosed the applicant with chronic low back pain, with degenerative disc disease at L4-5, and chronic left knee pain. They recommended disability discharge with a rating of 20 percent. The applicant did not concur with the FPEB’s recommendation and requested he be placed on the Temporary Disability Retired List (TDRL) with a rating of 40 percent and his case was forwarded to the Secretary of the Air Force Personnel Council (SAFPC). On 21 Dec 05, SAFPC recommended the applicant be discharged with a disability rating of 20 percent, with severance pay.

The applicant was discharged from the Air National Guard and the Reserve of the Air Force for disability with severance pay and a compensable disability rating of 20 percent, in the grade of

technical sergeant, effective 22 Feb 06.  He completed 23 years,
3 months, and 13 days of service for pay, including 5 years and
8 months of active duty, along with 19 years, 11 months, and
29 days of satisfactory Federal service.
A similar appeal was considered by the Board on 9 Jan 09 and the applicant’s record was corrected to reflect the following:

a.	On 22 February 2006, he was not discharged, with severance pay, from the Air National Guard and the Air Force Reserve.

b.	He was credited with an additional six (6) nonpaid inactive duty training points during Retirement Year Ending
7 November 2003 resulting in fifty (50) total and retirement points and a year of satisfactory Federal service.

c.	On 22 February 2006, he was relieved from his current assignment and assigned to the Retired Reserve Section, and, his name was placed on the Retired Reserve List, eligible for retired pay at age 60 under the provisions of Title 10, USC, Section 12731.

d.	He was provided the opportunity to make an election under the Reserve Component Survivor Benefit Plan (RCSBP).

On 9 Sep 09, the applicant’s period of service while serving in the United States Army Reserve, was corrected to reflect four years of satisfactory Federal service by the Army Board for Correction of Military Records.

By application, the applicant appealed to the Board to have his record corrected to entitle him to incapacitation pay effective
1 Aug 03 to 31 Jan 04; 1 Feb 04 to 31 Jul 04; 1 Aug 04 to
31 Jan 05; 1 Feb 05 to 31 Jul 05; 1 Aug 05 to 31 Jan 06;
1 Feb 06 to 28 Feb 06, and his request was approved on 8 Oct 09.
For an accounting of the facts and circumstances surrounding the applicant’s appeal, and, the rationale of the earlier decisions by the Board, see the Records of Proceedings at Exhibit C.

The applicant submits a request to have his Reserve retirement rescinded and that his name be placed on the TDRL with a compensable disability rating of 40 percent. He contends that his rights associated with his processing through the Disability Evaluation System (DES) were violated; medical providers failed to provide proper medical care, and his belief that his records were not accurate at the time of separation, resulted in an improper disability rating.

In support of his appeal, the applicant provides a personal statement and extracts from his disability evaluation, including documentation that he believes was not available at the time of separation.

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

AIR FORCE EVALUATION:
AFPC/DPSD recommends denial, stating, in part, based on the preponderance of evidence no error or injustice occurred during the disability process.

They can only address the concerns the member has on his disability compensable rating. It is also outside their area of responsibility to discuss, or have knowledge of, the claim the applicant has on the failure to provide him proper medical care, failure to provide proper documents or his incomplete medical record sent forward for review. These issues  should  be addressed by a different office.

The complete AFPC/DPSD evaluation is at Exhibit E.
AFPC/JA recommends denial, stating, in part, given that the physical examination of the applicant was less than 90 days old when received at AFPC; the Memorandum for Record (MFR) from the medical provider was entirely proper; and that the applicant told the FPEB he was ready to proceed, there is no evidence of either mistake or injustice in this case.

In addition, the applicant alleges many errors. His overall allegations are (1) stale documentation (documentation more than
90 days old at the time of the FPEB hearing), (2) tampering with the DES process by improper medical provider, and (3) failure, on the part of the applicant's legal counsel, to argue that some of the applicant's documents were "out of regulation."

In regard to the applicant’s allegation that some of the documentation considered by the FPEB was more than 90 days old, we note, the FPEB hearing was on 17 Nov 05, and the documentation it referred to concerns the physical examination that occurred the previous May. However, the standard in effect at the time (and still in effect under the current Air Force Instruction) is that the documentation must be no more than
90 days old when  received at AFPC" (AFI 36-3212, Physical Evaluation for Retention, Retirement, and Separation, 30 Sep 99, paragraph 2.1). So while it is true that the FPEB considered documentation that was over 90 days old at the time of the hearing, the documentation in question would have been received by AFPC at the time the physical evaluation board liaison officer sent the MEB report and narrative summary to the USAF Physical Disability Division. Consequently, there was no error.

In regard to the allegation that the medical provider wrongly influenced the DES process by providing a memo for record for the applicant's medical file, the FPEB referred to information in the MFR, and so appears to have relied on it, in part, in reaching a determination. The applicant alleges that since this particular medical provider was not his attending physician, any information provided by him amounts to wrongful influence. The prohibition against wrongful influence of a DES proceeding simply reads, "Unlawful Influence, no one may attempt to coerce or, by any unauthorized means, influence a PEB or the outcome of any disability case." However, since the surgery  never occurred, the FPEB would have been able to draw precisely the same conclusion it did from the medical provider’s MFR. Thus, the applicant has failed to show any prejudicial effect from the MFR, even assuming it had been unauthorized. But in fact, nothing about the MFR was inappropriate or unauthorized.

Further, as it turns out, in accordance with the governing directives, since the medical provider was also the commander of the medical group, his approval was actually required before the MEB report could be finalized. Therefore, his involvement in the process was not only authorized, it was necessary. Apart from that, the MFR simply explained the reason for proceeding with the MEB despite the fact that the applicant had not undergone surgery to correct his back pain, for the record. Far from being an unauthorized attempt to influence anyone, it documented his decision that the requirement of the governing DoD directive on optimal medical benefit had been met. The inclusion of the MFR in the applicant's records was not in error.

The applicant alleges that his military counsel failed to argue that the FPEB did not have complete and accurate documentation. However, the applicant's hearing occurred more than three years ago. As the Board is aware, applicants to the AFBCMR must normally make their applications for correction within three years of the alleged error or injustice. In reliance on this three-year period, the USAF Physical Disability Division maintains hearing records only for three years. Thus, the tape that could answer the question is not available. In the absence of the actual tape of the applicant's hearing, we may resort to the standard hearing script. According to the script, the applicant himself would have been allowed to make his own statement to the FPEB at the end of the hearing. He could have raised any objection to the evidence at that time. But this would have been only one of several times when he could-and should-have raised the matter of incomplete documentation to the FPEB. Before the hearing could have proceeded the applicant would have had to answer that he was ready to proceed. He also would have been present when the president affirmed that the FPEB had all the evidence it needed and there were no errors in the documentation. That is, when the applicant heard his counsel affirm that the FPEB had all the documentation needed and that it was accurate, the FPEB would have correctly understood him to agree with the representations of his counsel. Did he sit silent? He does not allege that the FPEB proceeded over his objections. He merely alleges that his counsel did not argue that the documentation was incomplete. Had he not waited until well after the application period for the AFBCMR, we could

have consulted the audiotape and resolved the matter without question. In the absence of such evidence, the applicant should not be afforded the advantage of his own tardiness. In the absence of contrary evidence, the FPEB and disability counsel are entitled to the presumption of regularity. Thus, we must conclude the FPEB did not proceed over the applicant's objections, and therefore we must also conclude he did sit silent while his counsel affirmed that the documentary evidence was in order.  Once again, there was no error.

Apart from error, there is the question of injustice. The United States Court of Federal Claims has held that "injustice" refers to "treatment by the military authorities that shocks the sense of justice." In this case, to assess any implied allegations of injustice, it will be useful to proceed with an assumption. For the sake of argument, let us assume all the applicant's allegations against his counsel, the PEBs, and the commander to be valid. Given all those assumptions, how would the applicant have been harmed? He would have been harmed only if his final disposition; at the SAFPC, had simply upheld the findings and recommendations of the FPEB. Of course, that is not how things happened. The SAFPC actually awarded the applicant disability compensation for the injury to his knee as well as his back, thus removing any possible harm from allegedly stale documentation,  ineffective assistance, or unauthorized influence. In so doing, the SAFPC also doubled the applicant's disability  award,  raising  his  rating  from  10  percent  to
20 percent disabled. Whatever else may be said, it hardly "shocks the sense of justice" that a service member ultimately obtains double the disability award he received at his final hearing. There was no more injustice in this case than there was error.

The complete AFPC/JA evaluation is at Exhibit F.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
The applicant provided two responses for both evaluations.
In reference to the AFPC/DPSD, the applicant notes that SAFPC did not address the most compelling issue in his rebuttal to the FPEB’s recommendation, which was that he did not  receive mandated medical care for the injury to his left knee which was in the line of duty (INLOD). Moreover, he believes the FPEB could not find any compelling information to make a decision due to either the removal of documented information from  his records, or the lack of personnel to make the appropriate documentation of ongoing patient status. Because the board’s recommendation in regards to his back pain was never forwarded to him and no additional benefits resulted from that recommendation.  The results were never placed into action.

The advisory opinion noted that the board acknowledged that the most recent assessment of the applicant’s spine range of motion was not recorded in “degree.” However, the PEB found or utilized the terminology “good range of motion,” which was the terminology used by the evaluating physician, in the May 05 assessment of his back pain, which was interpreted as a normal arch of motion that would not likely support the higher disability rating. The first thing is that no where does the mentioned May 05 document ever say that it is an assessment of his back pain. But it does document the ongoing and continuous pain being experienced by the applicant. It also documents types of treatment given and the effectiveness of such, which the range of motion had nothing to do with the level of pain felt by the applicant. Taking four words out of a four page document to make an interpretation, when there are numerous references to pain felt, and those activities which cause them, gives the impression that there is a deliberate blindness to his actual condition.

It is also important that it is known that he had three injured discs in his back, not just one, and had suffered other injuries while undergoing treatment by military physicians. The required statement of patient condition was never accomplished as was other required recording and presenting of other injuries which were compensable.

Equally notable is that the awarding of an additional 10 percent disability does not absolve the Air Force's responsibility of providing mandated medical care. But the award does go to verify that the Air Force did recognize that a Line Of Duty injury had in fact occurred to the left knee.

The advisory opinion also noted he had completed 20 years of satisfactory service and was eligible for transfer to the Retired Reserve. However, initially, he did not have 20 years of satisfactory service, as was the reason for the continued recommendation of Discharge with Severance Pay (DWSP). In fact, he was reported as only having 19 yrs, 11 months, and 29 days of satisfactory service. It was only after his own research, discovery of injustice, and petitioning, by BCMR Case No. (BC- 2007-03623) that he was able to show the injustice had been done, by not being placed on orders for medical treatment of an injury incurred in the line of duty. This is important, because it will show continued failure to follow Air Force Regulation, DOD Policy, and Federal Law by those responsible and the continued injustices made. These individuals are also responsible for the current BCMR case being considered now.

He does not recall nor did he read in his application to the BCMR where he requested his disability rating to be changed to a permanent disability retirement. He does recall that he asked that his injuries be assessed an appropriate level of disability, after receiving mandated medical care/assessment, and then be retired with that appropriate level of awarded disability.  As per the governing DOD Policy, and Federal Law,

he is still entitled  to receive proper evaluation, proper medical treatment, and a proper disability evaluation. This is not something that can be decided upon whether someone feels like doing it or not, but a mandate which to this date has not been satisfied.

In his subsequent review, he notes that the advisory did not address this allegation in its entirety. He will show that the most important fact of this whole case is the failure to provide medical care for an injury received in the line of duty should have alerted all concerned parties that a disability hearing could not be held, under any circumstances at that point; that he made every effort to notify all concerned parties, even assigned counsel, but was ignored on all levels beside there being more than ample evidence to prove this occurred. It will be obvious the commander knew of his injuries but deliberately continued with an erroneous process, and submitted an unauthorized document solely with the intent to influence the DES which was continuing with a case which it had no authority to at that time. It will show that contact was made prior to the FPEB that at least one injury which occurred in the Line Of Duty (INLOD) had not received mandated medical care and because of incorrect counsel, an error of justice occurred when he was told nothing could be done concerning his protests, and when he was incorrectly advised to be silent during the FPEB.

He notes the advisory did not properly reference his injuries to his back and left knee; the incidents which led to the injuries and aggravation of the injuries; and that proper procedures were not followed in accordance with the governing DoD and Air Force instructions. The injuries that were incurred INLOD. His complaints and protest of not receiving proper medical care were ignored.

In addition, submitted for review in his application to the BCMR he included numerous documents which also refer to the injury to the left knee, pain being suffered due to this injury, but moreover the lack of treatment of this injury, which was required by regulation. This was included in each of the appeals which he had submitted upon the completion of the MEB and both the PEB and the FPEB.

In his statement to the BCMR he made issue of this same aspect to many medical personnel, and also made the same declaration to the MEB, PEB, FPEB, and this Board, that it is undisputable that in fact an injury to his left knee was incurred in the Line Of Duty, that entitled or mandated medical care for the injury to the left knee was not received, and that by standing DOD policy and Air Force regulation no case could be forwarded to the Disability Evaluation System for adjudication. Due to the overwhelming preponderance of evidence that the single complaint was a failure to  provide entitled medical care, which is undisputed, and irrefutable, it is clear that the proceedings of the PEB and FPEB were erroneous, if not illegal, and that the

subsequent release from the Air Force is in itself erroneous if not illegal.

In the entirety of the rest of the opinion there are references to different case law and such which she uses to claim he received no injury. It has been entirely proven that in fact severe injury had occurred at the hands of numerous individuals. The evaluator does not realize that she even verifies this in some of her statements. To go to her end result requires a willful disregard for the evidence presented to her. It is reckless in nature, but she wants the Board to believe nothing happened, even though she skirts around the evidence. The statements are constructed well, and meant to represent that there is some authority which should be trusted without question. This is the same position taken by those who did him harm. Continuation of this harm, disregarding his incessant and constant objection, and the constant disregard of the mounds of evidence is not only a crime, but a complete travesty of justice.

The applicant’s complete response is at Exhibit H.

ADDITIONAL AIR FORCE EVALUATION:
The AFBCMR Medical Consultant recommends denial of the applicant's petition for placement on the TDRL with a 40 percent compensable disability rating and/or returning him to active duty for assignment to a patient squadron at a MTF where [he) can finally receive entitled medical care and have  [his) injuries properly assessed.

The Medical Consultant notes that he has not attempted to deprive the applicant of any benefit or change of the record that he deserves and has made an earnest effort to analyze his case with each of his contentions in mind; many of which have been addressed in other advisory recommendations, but not to his satisfaction. However, it should be stated that investigation, fact finding, and validation of the bulk of the applicant's numerous allegations, as enumerated on his DD Form 149, would be more appropriately managed through alternative administrative remedies, e.g., via the Inspector General, the Office of the Air Force Surgeon General, and/or Commander, HQ Air Force Personnel Center [specifically,  Division Chiefs under the assignments division (DPA and DPAMM, Medical Standards) and the disability division (AFPC/DPSD).

The Medical Consultant will address, as best as practicable, the applicant's desire for placement on the TDRL and/or assignment to a patient squadron at a Medical Treatment Facility (MTF). The Consultant will also address a heretofore unaddressed contention that the applicant's MEB, PEB, and ultimate release  from military service were "erroneous, if not illegal: based upon

mandates to provide treatment for his INLOD injuries [presumably to include his left knee ailment), until [his] condition was stable or could not be materially improved: implicitly, before embarking upon a medical separation action.” With reference to the applicant’s back ailment, a review of the record confirms he had received a trial of conservative therapies for at least one year, and was offered "options" to further treat his back ailment; only one of which was surgical versus "continued non- surgical care." Although allegedly "unwilling" to  pursue surgery, the record does not clearly indicate whether the applicant elected to pursue surgery prior to his release from military, but was denied this option, or whether he was simply undecided at the time and elected to continue "nonsurgical care." Had it been determined the applicant required surgical treatment for his back condition, then his refusal to pursue this treatment would have resulted in conducting an MEB, without his approval or concurrence. In other instances, where surgical treatment is offered as an option, but the surgical outcome is questionable, then the patient is generally not penalized for this refusal; yet may still require an MEB. A reasonably-minded individual may consider a "50 percent chance" of successful outcome unacceptable to pursue this option.

Directing attention to the applicant's knee ailment, he reports that documentation from his orthopedic surgeon, "was absent from [his) records" during the evaluation process; although reportedly "sent to the medical squadron, but never made it into [his) records." Nevertheless, the Medical Consultant concedes that there are instances in which an MEB could be considered premature, circumstances that could fit this determination could include ongoing or incomplete treatment for a medical condition that had not reached maximum medical benefit (or when return to duty is not expected), while awaiting additional diagnostic studies, where there has been a recent disclosure or discovery of a new medical condition shown to potentially interfere with military service, or an acute deterioration of a chronic condition occurring after referral through the DES process was already underway. Under these circumstances, there could be reason for a recall of the MEB for conducting a Special Review of the case; with resumption of the MEB process at a later, more appropriate, date. In the case under review, there is more than one reference in the case file that reflects the applicant's contention that he had not received treatment for his knee ailment, as also discussed in the Office Visit Note of the medical provider;  specifically finding the applicant "would benefit from physical therapy, non-steroidal anti-inflammatory medication, and weight loss." Likely referring to the applicant's knee, the consulting orthopedic surgeon opined, "The patient is not a candidate for surgical intervention at this time. The patient will follow-up with his primary care physician." In a previous appellate review, SAFPC attempted to remedy the failure of inclusion of the applicant's knee in the MEB/PEB process by finding the knee ailment unfitting and assigning a disability rating, based upon the available clinical

evidence of record; albeit greater than 90 days from actual convening of the IPEB.

Addressing the applicant's carpal tunnel syndrome, although the Department of Veterans Affairs (DVA) has issued the applicant a
10 percent disability rating for this condition, the evidence [post-surgical treatment does not indicate this condition was, or should have been, an independent cause for career termination. Specifically, a review of the  applicant's supplied profile documents, AF Forms 422, showed no limitations to worldwide qualification, e.g., "U4T" profile, due to an upper extremity condition at or about the time of his release from military service; notwithstanding the fact that he would have been expected to have been incapacitated prior to and during his post-operative recovery.

The Medical Consultant is also aware of the requirement to seek updates of medical information that exceeds 90 days prior to adjudicating a physical disability case. Aside from the recognized difficulties experienced by our Reserve Component in obtaining timely evaluations, notwithstanding delays resulting from going through the entire appellate review process, the Consultant finds it impractical to return the applicant to duty for initiation of a new MEB and referral to a PEB, as any evidence obtained today would not be reflective of his actual level of impairment at the time of release from military service. More difficult would be a decision to return the applicant to duty [a "patient squadron"] solely so that he can receive treatment of his knee and back ailments. Having said that, it should be known that absent an intervening new injury to the lower extremities prior to and after the evaluation by medical provider [following which he determined surgery was not indicated], or prior to his release from military service, it is highly unlikely that a subsequent course of physical therapy, likely consisting largely of range of motion and quadriceps muscle strengthening exercises, use of supportive devices, oral or injectable chondroprotective agents or analgesics and non- steroidal anti-inflammatory medicine, and lifestyle changes, would significantly change the natural course of the applicant's degenerative joint disease of the knee, as relates to his fitness to serve; noting that he had already received a reasonable course of conservative therapy for his back ailment which was proven to interfere with service.

In addition, the Consultant is aware of previous allegations of "cherry-picking" medical conditions and disability ratings by Military Departments when initiating MEB and PEB actions; prior to the National Defense Authorization Act, 2008, which directed strict adherence to the Veterans Administration Schedule for Rating Disabilities (VASRD) when making rating determinations. Nevertheless, the reader is reminded that the Military Department, operating under Title 10, United States Code (U.S.C.). retains the authority to only offer compensation for the condition(s) shown to cause career termination; that is, the condition(s) that was disqualifying for military service or

sufficiently interfered with performance of military duties that would result in an unfit finding by a Physical Evaluation Board. Although the IPEB and FPEB believed that only the applicant's chronic low back pain was unfitting, as apparently did medical officials at his servicing medical facility, the SAFPC rendered the benefit of doubt that his reported left knee pain, more likely than not, also sufficiently interfered with his service for an unfit finding.

In regard to the applicant's early contention for placement on the TDRL with a 40 percent disability rating, the Medical Consultant notes, when utilizing the rating criteria outlined in the VASRD for diseases and injuries of the spine and for chronic knee pain of the nature of the applicant's condition, TDRL placement would likely not have been an available option, based upon his spine range of motion and the duration of incapacitating episodes, as emphasized in the DVA rationale; and the clinical assessment of his knee provided by his medical provider.

Referring again to the implicit contention that the applicant should have received the treatment he was entitled to receive [presumably while still on/or placed on active duty orders, the Board has the authority to supplant the applicant's date of release with a continuation of active duty orders to represent a reasonable period, e.g., 6 months, during which an evaluation and course of therapy to determine if his knee condition was "stable, or could not be materially improved."

Upon review of the clinical assessment of the applicant's knee and the radiographic findings prior to his release from military service, the Medical Consultant opines, at best, the applicant's knee would not have been found unfitting had he satisfactorily improved following treatment OR, at worse, would have remained disqualifying with assignment of a 10 percent disability rating. No service or post-service evidence [within the 12 months post- release from  military service] is provided to reflect the applicant's knee would have been rated higher, e.g., as under Deluca criteria (DeLuca v. Brown, 8 Vet. App., 202 (1995), when a determination of whether there was further limited range of motion due to factors  such as weakness/fatigability during flare-ups or following repetitive motion or use of the affected joint is made. The Consultant did note that, although the Air Force granted a disability rating for the applicant's knee, the DVA has continued to deny service connection. This is likely based upon the reported mechanism of the applicant's injury in 2002 and the radiographic evidence of degenerative joint disease of the left knee; the latter finding which may have been determined unrelated to the applicant's fall in 2002.

Finally, addressing the applicant's request for TDRL placement effective 23 Feb 06, due to the five-year statutory limit for TDRL placement, the Medical Consultant finds this option non- viable, as 23 Feb 11 would have been the maximum allowed period in TDRL status; at which time the applicant would have been

removed from the TDRL and either found fit to return to duty, released with severance pay, or retired permanently, depending upon examination findings. Under this scenario, the medical evidence does not reflect the applicant would have been found fit, nor that he  would reach retirement eligibility; also bearing in mind that TDRL placement or continuation of TDRL status is justified only when the disability of one or more conditions reaches the minimum 30 percent rating and the condition(s) is (are) considered unstable. The evidence is insufficient to reflect that either of the applicant's conditions, individually or combined, met the minimum 30 percent rating requirement; thus, removing the stability of either or both conditions from the decision. The Consultant also found the evidence insufficient  for inclusion of the applicant's carpal tunnel syndrome as an unfitting condition in his military disability rating computation; although, if directed by the Board as individually unfitting, would render him medical retirement eligible. The Board should bear in mind that, operating under Title 10, United States Code [U.S.C.), the Military Department only offers compensation for  the condition(s) that caused career termination, while the DVA, operating under a different set of laws (Title 38, U.S.C.), is authorized to offer compensation for any medical condition found service-connected without regard to [and independent of] its impact upon a service member's retainability or fitness to serve.

In conclusion, although the applicant has disclosed several instances of alleged or proven errors, some which have been corrected, the Consultant opines the applicant has not met the burden of proof that justifies the principal desired change of the record.

The complete BCMR Medical Consultant evaluation is at Exhibit I.

ADDITIONAL APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
The applicant reiterates his original contentions and notes his objection to some of the evaluation by the BCMR Medical Consultant. He notes that the former commander was relieved of his command, partly due to the mishandling of his case.

In addition, he was not retired from service until after an appeal to the BCMR was approved retiring him from the Air Force Reserve. Further, he notes the errors in his records were the direct cause of him being unjustly separated. He believes had his record been accurately documented other determinations would have been made by the PEB.

He goes on to note that there are lapse in the facts about his medical case in the evaluation partly due to failure of military medical officials to initiate and complete timely LOD documentation,  and  evaluations,  and  the  statements  in  the

evaluation acknowledges that in the beginning required attention to his medical needs were not being met. Further evidence of former unit and medical official lack of due process resulted in great financial hardship and physical pain.

He has shown there was illegal conduct on many levels. The record reflects that required obligations were not met and he is in no way responsible for the failure of parties to fulfill their duties nor is he responsible for the illegal acts which were committed. He is the victim of those individuals and continues to suffer from those actions and failures to act. They were bound by law, their duty, and their oath to the applicant. As long as he continues to suffer from their actions the injustices continues.

He notes the Air Force still has a legal duty to accurately document all injuries sustained by him while in the service, to treat any and all injuries incurred in the Line Of Duty, to assess an appropriate level of disability, provide a lawful Physical Evaluation process, and ensure he receives all entitlements ensured by federal law, DOD policies, or military regulation.

The applicant’s complete response is at Exhibit K.

THE BOARD CONCLUDES THAT:
Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice. After a careful review of the application and the available evidence provided in support of the appeal, we are not convinced the applicant’s previous correction to reflect a Reserve retirement awaiting pay at age 60, should be disturbed. The applicant’s case has undergone an extensive review by the Air Force offices of primary responsibility (OPRs) and the BCMR Medical Consultant and we did not find anything which would overcome their assessment of the case. Aside, the applicant was afforded a thorough review of his medical conditions prior to his separation to determine if he should have been placed on the TDRL and he was separated with a compensable disability rating of 20 percent. He subsequently requested retirement and his record was corrected affording him Reserve retired pay at age 60. In our opinion, the earlier Board, which considered the applicant’s record to make a determination resulting in a Reserve retirement, is reflective of considerable reviews by officials vested with the responsibility to ensure the applicant received an appropriate separation based on the applicable laws and policies. Consequently, we find no basis to recommend relief beyond that already granted is warranted.

2. 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  issue(s)

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 10 April 2012, under the provisions of AFI 36-2603:
The following documentary evidence was considered: Exhibit C.	Record of Proceedings, dated 9 Feb 09,
with Exhibits.
Exhibit D.	DD Form 149, dated 28 Sep 10, with attachments.
Exhibit E. Letter, AFPC/DPSD, dated 2 Dec 10. Exhibit F.  Letter, AFPC/JA, dated 9 Mar 11.
Exhibit G. Letter, SAF/MRBR, dated 25 Mar 11. Exhibit H. Letter, Applicant, dated 8 Apr 11. Exhibit I.  Letter, BCMR Medical Consultant,
dated 17 Nov 11.
Exhibit J.	Letter, AFBCMR, dated, 31 Jan 12. Exhibit K.	Letter, Applicant, dated 27 Feb 12.