RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF:	DOCKET NUMBER:	BC-2008-01569 INDEX CODE:	108.00
COUNSEL:	NONE
	HEARING DESIRED: YES

APPLICANT REQUESTS THAT:
1.	He be reinstated as a traditional guardsmen and receive all back pay and allowances.

2.	The following documents be removed from his records:
a.	AF Forms 422 (Physical Profile Serial Report).
b.	Standard Form 600 (Chronological Record of Medical Care).
c.	NGB Form 22 (National Guard Bureau Report of Separation and Record of Service).

d.	Special Order A7-147.
3.	His	commander’s	impact	statement	be	revised	to	reflect accurate references that applied to his situation.

APPLICANT CONTENDS THAT:
In an 11 page brief he makes the following key contentions:
1.	He was processed for retirement without his knowledge and he did not give his permission to be evaluated by a medical evaluation board (MEB) for disability purposes.

2.	He was experiencing extreme personal problems while taking care of his parents due to having to make critical life choices for them. He was second guessing himself which caused great anxiety and depression that ultimately affected his ability to function as a guardsman. At no time during these crises did he ever feel suicidal.

3.	He sought professional assistance on his own and was diagnosed with depression and bi-polar being secondary. His psychiatrist placed him on Zoloft for depression and later ruled out bi-polar disorder. At that point, his doctor recommended he be returned to duty.
1.	
4.	His first sergeant requested the psychiatrist send the applicant’s medical records directly to him without his authorization which was in direct violation of the Health Insurance Portability and Accountability Act of 1966 (HIPAA).

5.	The commander’s impact statement does not reflect the appropriate governing regulations for disability and does not reflect pertinent or accurate information concerning his case.

6.	Medical appointments were delayed for over 90 days which postponed resolving his profile status and was in direct violation of AFI 48-123, (Medical Examinations and Standards).

7.	The medical waiver signed by an Air Force physician should not have been accomplished due to being cleared by his private physician. He was worldwide qualified in December 2004 by his physician; however, the surgeon general reviewed and disapproved the waiver.

8.	In May 2005, he was notified of the medical evaluation board (MEB) results; however, he did not realize he was allowed to appeal the process by appearing in person to present evidence on his own behalf.

9.	He did not have a history of depression as stated throughout the documentation of his case. The physician who recommended him for the medical waiver did not have authorization to do so. The report of medical examination was completed by a senior non- commissioned officer (SNCO) who was not authorized to do so.

10.	All AF Forms 422 were not processed properly and should be removed from his records.

In support of his request, applicant provides a copy of AF Forms 422, his medical waiver, his medical examination report, extracts from his medical records, NGB Form 22, Special Order A7-147, and his previous evaluations.

His complete submission, with attachments, is at Exhibit A.

STATEMENT OF FACTS:
The applicant served in the Air National Guard (ANG) in the grade of senior master sergeant (E-8), having assumed that grade effective and with a date of rank of 1 February 2002. It appears the applicant was placed on a P4T profile (AF Form 422 provided by  the  applicant)  on  26  September  2004;  16 October  2004,
11 December 2004, 26 February 2005, 8 April 2005, and 8 June 2005. The specific reason for the profile is not annotated on the AF Form 422.

The applicant’s commander signed a Commander’s Impact Statement on 15 February 2005 stating he did not feel the applicant was capable of performing his duties as Flight Supervisor.

On 7 July 2005, the applicant received an honorable discharge from the ANG and transferred to the Reserve Retired List after serving 20 years, 4 months, and 2 days of satisfactory service and is eligible for a Reserve Retirement at the age of 60.

AIR FORCE EVALUATION:
NGB/SGPA recommends denial. SGPA provided a corrected copy of their advisory, dated 26 January 2009, which recommends no action be taken on the applicant’s request. SGPA states appropriate procedures were followed and supports the actions taken by the 113th Medical Group and the 201st Airlift Squadron in processing the applicant’s profile IAW the governing instructions. Furthermore, AF Form 422, the medical and administrative documentation cannot be removed from his records as they are a part of his official records.

The SGPA complete evaluation is at Exhibit B.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
The applicant responded by reiterating his original contentions. He also stated the Military Personnel Flight (MPF) sent documentation concerning his case to the wrong address. He was never advised of his rights.

The applicant’s complete rebuttal is at Exhibit D.

ADDITIONAL AIR FORCE ADVISORY:
The BCMR Medical Consultant recommends denial. The Medical Consultant states the applicant was being treated by a civilian mental health physician who evaluated him for stress with multiple problems and prescribed Zoloft. He was placed on a P-4 profile with follow-up to occur one month later; however, he continued his treatment with the civilian physician over the next several months and was doing fine when his physician recommended he be allowed to perform duty, but he was continued in a P-4 status.

The Medical Consultant acknowledges that although there may have been administrative errors in processing the applicant’s profile, the fact of the matter is that one or more military health officials deemed him not to be Worldwide Duty Evaluation (WWDE) qualified due to the concern of his ability to meet the physical and mental demands of his position. The AF Form 422 should not be removed from his official record.

The Medical Consultant is of the opinion the applicant should have met an MEB and referred to a PEB for a duty fitness determination; however, since he did not meet an MEB, it is the Medical Consultant’s opinion that had he met an MEB he would, more likely than not, have been found unfit for duty. After a review of all medical evidence provided, the Medical Consultant believes the applicant’s medical condition would have been categorized as mild and he would have been offered 10 percent severance pay. The Medical Consultant recommends offering him separation with severance pay with a 10 percent disability rating for Major Depressive Disorder. Additionally, he is recommending the applicant be paid for the period of time he would have been retained on active duty status up to the date of his separation. The Medical Consultant finds no current medical evidence to reflect the applicant’s current mental status, treatment history, since his discharge to allow a reasonable alternative consideration for returning him to duty.

The BCMR Medical Consultant complete evaluation is at Exhibit E.

APPLICANT’S REVIEW OF ADDITIONAL ADVISORY:
Applicant responded by reiterating his original contentions; however, he points out the BCMR Medical Consultant’s comment regarding the applicant’s inquiry of the plan of action for his medical case be withdrawn from the record. He states this document was back dated to allow time frames to coincide under the governing regulation.

The applicant's complete rebuttal is at Exhibit H.

THE BOARD CONCLUDES THAT:
1.	The applicant has exhausted all remedies provided by existing law or regulations.

2.	The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file.

3.	Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice. After careful consideration of the applicant’s requests and the available
1.	
evidence of record, we are not persuaded he should be reinstated into the ANG with back pay and allowances; documents be removed from his official military personnel record, or his commander’s impact statement be revised. The applicant’s contentions are duly noted; however, we do not find his arguments sufficiently persuasive to override the rationale expressed by the Manager of Medical Evaluation and Disability, and the BCMR Medical Consultant. Absent persuasive evidence that the applicant was denied rights to which entitled, appropriate regulations were not followed, or appropriate standards were not applied, we agree with the recommendations of the office of primary responsibility and the BCMR Medical  Consultant and adopt their rationale expressed as the basis for our conclusion that the applicant has not been the victim of an error or injustice. Therefore, we find no compelling basis to recommend granting the relief sought.

4.	We took into consideration the BCMR Medical Consultant's recommendation to offer the applicant a 10 percent disability rating with severance pay. However, based on the applicant's response to the BCMR Medical Consultant's advisory, it appears he does not agree with this recommendation. Therefore, we find no basis to recommend correction of the applicant's record in this manner.

5.	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 AFBCMR Docket Number BC-2008-01569 in Executive Session on 12 May 2009, under the provisions of AFI 36-2603:

Panel Chair 
Member
Member

The following documentary evidence for AFBCMR Docket Number BC-2008-01569 was consiered:

Exhibit A.	DD Form 149, dated 18 April 2008, w/atchs. Exhibit B.	Applicant's Master Personnel Records.
Exhibit C.	Letter, NGB/SGPA, dated 26 January 2009. Exhibit D.	Letter, SAF/MRBR, dated 6 February 2009. Exhibit E.	Letter, Applicant, dated 17 February 2009.
Exhibit F.	Letter, BCMR Medical Consultant, dated 10 March 2009. Exhibit G.	Letter, SAF/MRBR, dated 12 March 2009.
Exhibit H.	Letter, Applicant, not dated.

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

CASE TRANSMITTAL / COORDINATION RECORD

IN THE MATTER OF:		DOCKET NO:	
		BC-2008-01569	
TCMD:	22 February	2010		

ROUTE IN TURN	INITIALS	DATE

1.	CHIEF EXAMINER (Coord/Signature)

3.	EXECUTIVE DIRECTOR (Coordination)

3.	EXAMINER (FOR DISPATCH)
 	
4.	PANEL CHAIR
(Signature on Proceedings)
 	
5.	AFBCMR (Processing)

Examiner
Air Force Board for Correction of Military Records