RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF:	DOCKET NUMBER: BC-2008-01103 INDEX CODE:	110.03, 128.14 COUNSEL:	
HEARING DESIRED: YES

APPLICANT REQUESTS THAT:
He be reinstated on active duty for the purpose of undergoing a Medical Evaluation Board (MEB) and that he receive retroactive back pay and reimbursement for medical expenses he erroneously incurred since being wrongfully discharged from the Air Force.

APPLICANT CONTENDS THAT:
Due to no fault of his own, he was improperly denied Disability Evaluation System (DES) treatment and erroneously discharged from the Air Force at the end of his term of service without proper medical treatment or evaluation.

His back injury was initially diagnosed as a pinched nerve and he was provided muscle relaxers and told to take it easy for a few weeks. Because he was in a deployed environment, it was not possible for him to decrease his work load, and he was required to perform his duties in spite of his injured back.

In July 2004, he was again informed that he suffered from a pinched nerve and that his back would improve over the next few weeks. He was not placed on a profile because his injury was not considered severe.

Between July 2004 and September 2004, he was deployed on numerous exercises and temporary duty (TDY) deployments with only a day or two off between trips. He often returned to the clinic, but was repeatedly informed that there was nothing that could be done. Eventually, his pain became so unbearable that he could neither sit down nor stand up without assistance, and it took him as long as 15 minutes to walk across a parking lot.

Because of the long timeframe between the onset of his symptoms and his surgery, he now has permanent nerve damage to his back. He can no longer hold his urine for periods of time exceeding five minutes and regularly experiences intense pain that causes him to drop to the floor. He now has regular numbing sensations in his left hand. He has been advised additional back surgery is required and that he should never lift anything over 20 pounds, and that ignoring this recommendation could result in him requiring a wheel chair to be mobile after the age of 50.  He is

taking	an	anti-depressant	and	currently	pays	for	his	pain	
management	medication out of pocket.				
His case demonstrates gross mismanagement and a complete disregard of Air Force regulations that prohibit a service member from being discharged without medical clearance. His primary caregiver failed to initiate the proper medical hold and the applicant was subsequently pushed out of the service with a disabling medical condition. He was not allowed to complete the proper administrative paperwork to receive a DD Form 214 and to receive copies of his medical documentation which precluded him from seeking the required treatment from the Veteran’s Administration.

In support of his request, the applicant provided 26 attachments consisting primarily of medical and discharge documents

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

STATEMENT OF FACTS:
The applicant entered the Regular Air Force on 9 Sep 93 and was discharged on 5 Apr 07 after completion of his term of enlistment.

Records indicate that on 29 Jul 04, he was evaluated for low back pain and placed on a duty-restricted profile.

On 30 Nov 05, an MEB was conducted and he was subsequently referred to the Informal Physical Evaluation Board (IPEB) for a determination of his fitness to serve. On 18 Jan 06, the IPEB recommended he be returned to duty.

On 27 Oct 06, he reported an inability to wear personal protective gear utilized in his occupation due to worsening pain. On 17 Jan 07, he was issued a profile which rendered him ineligible for deployment.

Other relevant facts are outlined in the BCMR Medical Consultant’s evaluation at Exhibit D.

AIR FORCE EVALUATION:
AFPC/DPPD recommends denial. DPPD states that the preponderance of evidence reflects that no error or injustice occurred during the disability process.

The complete AFPC/DPPD evaluation is at Exhibit C.

BCMR MEDICAL CONSULTANT’S EVALUATION:
The BCMR Medical Consultant recommends denial of the applicant’s request for being brought back into active duty for the purpose of completing an MEB and his request for retroactive back pay and reimbursement for medical expenses incurred since discharge. The Medical Consultant states that the applicant was found fit by an IPEB and was able to continue to perform his in-garrison duties while under a physical profile that precluded his deployability. His demonstrated ability to continue his in-garrison duties along with the lack of any documented episodes of incapacitation (e.g., requiring physician-directed bed rest), provides the basis for the BCMR Medical Consultant’s recommendation for denial of the relief requested. Noting his recommendation to deny the relief requested, he does suggest that discharge with severance pay and a disability rating of 20 percent might be a reasonable and expeditious way to resolve this case.

The BCMR Medical Consultant states the Department of Veterans Affairs (DVA) is empowered to periodically re-evaluate veterans for the purpose of adjusting the disability rating award should their level of impairment vary over time; as is likely in the case under review.

The complete BCMR Medical Consultant’s evaluation, with attachments, is at Exhibit D.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
The applicant’s counsel submitted a statement agreeing with the BCMR Medical Consultant’s suggestion that a reasonable course of action might be discharge with severance pay with a 20 percent disability rating.

The applicant’s response is at Exhibit F.

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. The applicant met an earlier MEB and a subsequent IPEB that found him fit and ultimately returned him to duty. While we took into consideration the Medical Consultant’s suggestion that rather than a medical discharge, a reasonable course of action might have been to discharge the applicant with severance pay and a
1.	
disability rating of no more than 20 percent, it is our opinion that a preponderance of the evidence more fully supports the medical personnel on the scene who had the opportunity to observe and diagnose the applicant and, based on his condition at the time, found that his condition did not merit the initiation of an additional MEB, medical retirement, or a disability discharge action.

We do not agree with the BCMR Medical Consultant’s opinion that the applicant most likely would have been found unfit and possibly awarded disability severance pay of 20%. In our view, there is insufficient evidence to conclude that the medical personnel handling the applicant’s case erred in finding the applicant fit and returning him to duty. In that regard, it is well documented in the records that the applicant did not experience incapacitation of an extended duration, was able to perform his in-garrison duties, and was recommended for return to duty by his commander. Although it appears the applicant’s condition has deteriorated since his discharge, the determination of his fitness was made based on the facts available to the evaluating medical personnel at that specific point in time. Additionally, it appears the most appropriate forum for evaluation of the applicant’s medical issues would be the Department of Veterans Affairs (DVA) as Title 38, which the DVA acts under, allows them to adjust disability ratings based on an individual’s current medical condition as long as the conditions are considered service connected. Therefore, in the absence of evidence to the contrary, we do not find a basis to recommend granting the requested relief.

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 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 Docket Number BC- 2008-01103 in Executive Session on 9 September 2008, under the provisions of AFI 36-2603:

Panel Chair 
Member
Member

The	following	documentary	evidence	was	considered	for	Docket Number BC-2008-01103:

Exhibit A.	DD Form 149, w/atchs, dated 19 Feb 08. Exhibit B.	Applicant's Master Personnel Records. Exhibit C.	Memorandum, AFPC/DPPD, dated 28 Apr 08. Exhibit D.	Memorandum, BCMR Medical Consultant, dated
2 Jul 08, w/atchs.
Exhibit E.	Letter, SAF/MRBR, dated 11 Jul 08.
Exhibit F.	Letter, Counsel’s Rebuttal, dated 28 Aug 08.