RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF:	DOCKET NUMBER:	BC-2008-01779 INDEX CODE:	108.00, 122.00

COUNSEL:	DPS HEARING DESIRED: YES

APPLICANT REQUESTS THAT:
His records be corrected to reflect the following:
1.	He was not released from active duty on 4 September 2003, but was continued on active duty with the Air Force Reserve in Ohio (OHAFR) until 18 January 2008.

2.	His compensable disability rating from the Air Force be increased from 10% to at least 30%.

3.	Between 4 September 2003 and 18 January 2008, he be promoted to senior master sergeant and then to chief master sergeant.

4.	His Line of Duty (LOD) with regard to his cervical (neck) and lumbar (lower back) be reclassified as in the line of duty (ILOD) rather than existed prior to service (EPTS) with service aggravation.

APPLICANT CONTENDS THAT:
In May 2003, while mobilized for one year in support of OPERATION ENDURING FREEDOM, he injured his knee and lower back when he fell while in the performance of approved physical training. Later during that same month he was being treated by an Air Force contracted chiropractor at Malcolm Grow USAF Medical Center (MGMC) on Andrews AFB when, as a result of a cervical spine and neck manipulation, he suffered injuries to his neck and spine. Medical documentation indicates the chiropractic manipulation resulted in a vertebral artery dissection and thus, a new neck injury. In addition to the knee and back problems, he has suffered from chronic neck pain, headaches, and associated symptoms ever since.

He was returned to his unit and demobilized on 4 September 2003. He should have been retained on active duty orders as his symptoms and disabilities had not abated. Instead, he spent the next four years on a physical profile while being funneled through a botched Disability Evaluation System (DES) process. His DES experience included incomplete, inaccurate, and made up

Medical Evaluation Board (MEB) reports along with a Formal Physical Evaluation Board (FPEB) that did not properly consider the medical evidence before it. Despite significant injuries to his knee, back, and neck, he was ultimately recommended for medical separation with severance pay and a 10% compensable disability rating. Notwithstanding the Secretary of the Air Force’s (SECAF’s) recommendation to separate him, he was retained by the Air Force Reserve (USAFR) but prevented from seeking promotion during his last years of service.

In support of his appeal, the applicant provides a statement from his counsel, and 30 exhibits.

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

STATEMENT OF FACTS:
The applicant began his military career on 12 January 1988 and was progressively promoted to the grade of master sergeant (MSgt) effective and with a date of rank (DOR) of 1 May 2003. The applicant was involuntarily ordered to active duty for a period not to exceed 365 days (4 April 2004) to Andrews AFB, MD as a medical technician.

On or about 5 May 2003, while participating in physical training (PT) he fell and aggravated prior injuries (knees and lower back). He did not report to medical personnel preferring instead to treat himself with rest and over-the-counter (OTC) anti- inflammatory drugs. He eventually sought treatment and was referred to the Malcolm Grow USAF Medical Center (MGMC) chiropractic clinic on 17 July 2003. The chiropractor’s initial intake sheet dated 17 July 2003 indicated the applicant’s complaints as being: mid back/neck somatic dysfunction. A long history of back pain that has been well-controlled with infrequent problems until he fell onto his knees and outstretched hands/arms resulting in frequent back/neck pain. The chiropractor notes the applicant’s previous military history as: 10-15 years of myalgia, progressive, peripheral neuropathy. HNP in neck and middle back. Bell’s palsy 5 to 6 years ago. Spondylolysis and knee problems meniscal, fx patella. It is further noted by the chiropractor the applicant had been a fireman in the past  that had been retired from the fire department with a 25% disability. There is no mention of what his disability might have been with the fire department.

While seeing the chiropractor, he reported mild, intermittent relief until his fifth visit when he experienced a sharp pain during a chiropractic adjustment to the C1, C2 area of his spine. From that treatment to his next scheduled treatment on 4 August 2003, he experienced morning stiffness followed by transient dull headaches and occasional sharp omni-directional shooting pain emanating from the C1, C2 area.  When he reported these symptoms

to the chiropractor, he was immediately disengaged from treatment and referred back to his primary care manager (PCM).

A LOD determination was initiated on 11 August 2003. He was returned to his unit and subsequently demobilized on 4 September 2003. The LOD was finalized on 7 January 2004. The LOD found the applicant aggravated previous injuries during PT and subsequent treatment and recommended EPTS – Yes with service aggravation.

On 21 June 2004, he was issued an Air Force Form 422, Physical Profile Serial Report, wherein he was notified that he was considered on a T1 permanent profile that medically cleared him from any physical fitness training. It also indicated he was not considered world-wide qualified for duty. The AF Form 422 contained a release date of 1 August 2004. However, on 15 July 2004, he received another AF Form 422 that modified his earlier profile by making him T4 and recommended the applicant meet an MEB. A narrative summary of his medical record for the MEB was accomplished on 30 July 2004. The summary noted the applicant experienced chronic back and neck pain which has not improved with physical therapy and medications. He could perform some of his duties as a medical technician but due to his inability to exercise and to lift more than 15 pounds he would remain limited in his functions. On 7 September 2005, the MEB found that his chronic neck pain, bilateral carpel tunnel, bilateral cubital tunnel syndrome (by history) and right meralgia paresthetica were incurred while entitled to basic pay, EPTS – NO, and LOD-Yes. The MEB recommended he be returned to duty.

However, the return to duty recommendation notwithstanding, the applicant’s case was sent to an IPEB. On 14 October 2005, the IPEB found that his neck pain, myofascial, normal range of motion, EPTS with service aggravation was unfitting and recommended he be discharged with severance pay and a compensable rating of 10%. The IPEB considered the Bilateral Carpel Tunnel and Bilateral Cubital Tunnel Syndromes along with Right Meralgia Paresthetica and Hypertension, as conditions that can be unfitting but are currently not compensable or ratable. The applicant disagreed with the IPEB’s findings and requested a personal  appearance before an FPEB.   He met the FPEB on
14 December 2005. The FPEB agreed with the earlier IPEBs findings and recommended the same. The applicant again disagreed and his case was sent to SAFPC for a final decision. SAFPC considered his case and on 16 February 2006, upheld the previous boards’ findings of discharge with severance pay with a compensable rating of 10%. SAFPC directed the applicant be discharged effective 21 March 2006.

It appears the applicant was not discharged with severance pay, as directed, but was allowed to continue his membership in the AFR. The record is unclear as to how or why he was not discharged as directed.

In spring 2007, the applicant had become a practicing physician’s assistant (PA), was still a member of the OHAFR, and submitted continuing educational paperwork to HQ ARPC in hopes of obtaining point credit toward an eventual Reserve retirement. It appears that officials from ARPC and AFRC/SG believed the applicant had reached sanctuary (more than 18 but less than 20 years of service) and tried to find a way to enable him to accrue enough points with which to qualify for a Reserve retirement at age 60. On 13 August 2007, he was issued a participating 4T waiver that allowed him to accrue points for Inactive Duty for Training (IDT) and home station Annual Training (AT). The waiver did not allow the applicant to perform any duty for any purpose that would take him away from his home station. The waiver was only valid for a 90-day period with the expectation the applicant would complete any required participation towards a satisfactory year of service within that timeframe.

On 18 January 2008, the applicant was placed on the Reserve Retired List (RRL) awaiting Reserve retired pay at age 60.

AIR FORCE EVALUATION:
AFRC/A1K recommends the following:
1.	With regard to the applicant’s request that he be continued on active duty from 4 September 2003 to 18 January 2008, A1K recommends partial relief. A1K’s recommendation is based on DODI 1241.2, as referenced in a 17 November 2008 AFRC/SGP policy memorandum, and an associated 8 December 2006 SAF/AA policy memorandum. Entitlement to a voluntary return to active duty, ultimately for DES processing consideration, shall begin when the condition renders the airman unable to perform military duties; not when the injury occurred or when the airman was released from active duty. Active duty orders will be continued under these circumstances until the airman is either returned to duty or processed through the DES. Under the above guidelines, the applicant was considered unfit for duty on 21 June 2004 when a physical profile was generated indicating he was not qualified for world-wide duty. He remained on a “4T” physical profile, unfit for military duty, until completion of the DES processing on 16 February 2006. Ultimately, SAFPC directed the applicant be discharged with disability severance pay and a compensable rating of 10% effective 21 March 2006. However, A1K notes the applicant was not, in fact, discharged as directed, but continued to serve with the AFR until his retirement on 18 January 2008. Nonetheless, in accordance with the above policy, A1K recommends the applicant be continued on active duty orders for the period
21 June 2004 through 20 March 2006, when the DES was completed.
2.	A1K defers any recommendation with regard to the applicant’s request for an increase of his compensable disability rating from 10% to at least 30% to AFPC/DPPDS for evaluation and recommendation as necessary.
1.	
3.	With regard to the applicant’s request that he be retroactively promoted to SMSgt and then to CMSgt, A1K states the enlisted Unit Vacancy Promotion (UVP) program eligibility requirements are that the member being considered for promotion be in the higher grade position; meet Professional Military Education (PME) requirements for the higher grade; be recommended by his supervisor; and, approved by the promotion authority. A1K notes the applicant has not produced evidence showing he was in a higher graded position. Additionally, the applicant’s records indicate he had not obtained the appropriate level of PME and was therefore not eligible for promotion consideration.

A1K’s complete evaluation, with attachments, is at Exhibit B.
AFPC/DPSD recommends the applicant’s request for an increase in his disability compensable rating be denied. Under Title 10, United States Code (USC), PEBs must determine if a member’s condition renders them unfit for continued military service related to their office, grade and rank or rating. The fact that a person may have a medical condition does not mean the condition is unfitting for continued military service. To be unfitting, the condition must be such that it alone precludes the member from fulfilling their military duties. If the board renders a finding of unfit, the law provides appropriate compensation due to the premature termination of their career. Further, it must be noted that Air Force disability boards must rate disabilities based on the member’s condition at the time of evaluation; in essence a snapshot of their condition at that time. Therefore, the preponderance of evidence reflects that no error or injustice occurred during the disability process.

DPSD’s complete evaluation is at Exhibit C.

APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:
Counsel for the applicant cites Air Force Instruction (AFI) 36- 2619 that deals with medical entitlements for Air Reserve Component (ARC) personnel and DODD 1241.1, wherein is stated, “All ARC personnel on Man-day (active duty) tours are entitled to the same medical care as fulltime active duty personnel, during the man-day tour. ARC members will be treated until the disability cannot be materially improved. Members on active duty under orders for a period of 31 days or more, who are hospitalized beyond the original termination point of the orders, shall be continued on active duty for the duration of the hospitalization or final disposition of the case.”

Counsel also states that there are two problems with the A1K advisory in that the two memoranda cited in the advisory are in direct contrast with the AFI in place at the time of the applicant’s release from active duty and they (cited memoranda)

were completed three and five years after the applicant’s release from active duty, respectively.

With regard to the implication the applicant knew he was supposed to separate but stayed on duty until he was eligible for retirement, counsel states the applicant was not made aware of the SAFPC findings and associated directive to separate. Counsel contends there were no less than nine individuals with the responsibility to ensure the SAFPC directive was carried out and not one of them made any attempt to notify the applicant of the SAFPC decision. The separation order was never processed by anyone on the distribution list and put into effect.

The applicant did receive the results of a congressional inquiry by Congressman wherein was stated, “After exhausting the DES process, his case was presented to the SAFPC who concurred with the recommendation.” Counsel states the applicant contacted the MEB office at Wright-Patterson AFB who advised him they had not heard anything but would contact him when they did. He was not notified on the separation order until 14 July 2007, after he was allowed to reenlist and after he made multiple inquiries and provided copies of the aforementioned congressional inquiry to officials at the Air Reserve Personnel Center (ARPC).

With regard to retroactive promotions, counsel states the only reason the applicant was not promoted was due to the botched DES process. He notes the applicant was recommended by his superiors but was not allowed to complete the Senior Non-Commissioned Office Academy due to his being on a 4T physical profile.

With regard to the DPSD recommendation to deny an increase of the applicant’s compensable rating to at least 30%, counsel states the Air Force appears to be using the applicant’s testimony that “…he worked 34 hours per week as a physician’s assistant in an emergency room, working as long as 12-hour shifts…” as the sole rationale for denying him an increase. Counsel states the applicant had to work so many hours, regardless of his pain and impairment, to earn a living to provide for his wife and children. The Air  Force had already botched his medical evaluations, demobilized him, and would not formally recognize his injuries so that he could receive a medical retirement and begin receiving disability payments. The fact the Air Force continues to hinge its position on that one statement shows a blatant disregard for the medical facts.

Applicant’s complete response, with attachments, is at Exhibit E.

THE BOARD CONCLUDES THAT:
1.	The applicant has exhausted all remedies provided by existing law or regulations.
1.	
2.	The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file.

3.	Sufficient relevant evidence has been presented to demonstrate the existence of error or injustice warranting par t i al cor r ect i on of t he appl i cant ’ s r ecor d. We agree with the findings of AFRC/A1K with regard to the applicant’s request to be placed on active duty as a result of him being on active duty orders for more than 31 days when he was injured. Therefore, as A1K indicates the applicant was found officially unfit for duty on 21 June 2004 and he was to be discharged with severance pay and a 10 percent compensable rating on 21 March 2006, it is only logical that these dates be used as his start and stop dates for the additional active duty recommended by A1K.  Ther ef or e,    we r ecommend  t he  r ecor ds  be  cor r ect ed  as  i ndi cat ed  bel ow.

4.	Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice with regard to his remaining requests for relief:

Concerning		his		request	that		he		be	retroactively	promoted		two grades, we  agr ee  wi t h  t he  opi ni on  and  r ecommendat i on  of	AFRC/ A1K and		adopt		i t s	r at i onal e		as		t he	basi s	f or		our	concl usi on		t he appl i cant	has  not	been  t he  vi ct i m of		an  er r or		or	i nj ust i ce.		The AFI		gover ni ng  t he  pr omot i on  of		ai r men  cl ear l y  st at es  el i gi bi l i t y r equi r ement s		and  t he  evi dence  pr ovi ded  by	t he  appl i cant		cl ear l y i ndi cat es	t hat	he  not		onl y	di d  not	meet ,	but		he   coul d  not	meet pr omot i on		el i gi bi l i t y		r equi r ement s.				Couns el ’ s		ar gument s cont endi ng		ot her wi se		because	of		DES	mi s management		i s		wi t hout mer i t	and		i s		si mpl y	not		accur at e.		Ther e		has	been		no	evi dence pr ovi ded  t hat		shows	t he  appl i cant	was	ever	ser i ousl y		consi der ed f or		pr omot i on  whi l e  on  a  4T  pr of i l e  because  he  was  not	el i gi bl e f or		pr omot i on	whi l e		on	a	4T	pr of i l e.		Ot her		t han		unver i f i ed st at ement s		by	counsel		and	a		not ed		enl i st ed	per f or manc e	r epor t ( EPR)	f r om	2005	( al so	not			pr ovi ded)		t hat		i ncl uded	st andar d l anguage  wi t h  r egar d  t o  a  pr omot i on  r ecommendat i on,	no  pr omot i on consi der at i on  evi dence  has  been  pr ovi ded.		Had  t he  appl i cant	been managed  appr opr i at el y,		he  woul d  not	have  been  pr omot ed  t wo  gr ades as	counsel		cont ends	because		he		woul d	have	been		di schar ged	wi t h sever ance  pay  and  a  10% compens abl e  r at i ng  as  was  di r ect ed  by  t he Secr et ar y	of		t he  Ai r		For ce  r at her	t han  awai t i ng  Res er ve  r et i r ed pay  at	age  60.

Wi t h    r egar d    t o    hi s    r equest     t hat     hi s    compens abl e    r at i ng    be i ncr eased    f r om   10%   t o    30%,     we    agr ee    wi t h    t he    opi ni on    and r ecommendat i on  of   AFPC/ DPSD and  adopt   i t s  r at i onal e  as  t he  basi s f or  our  concl usi on  t hat   t he  appl i cant   has  not   been  t he  vi ct i m of an er r or or  i nj ust i ce.  The  addi t i onal  ai l ment s  he  l i st s  wer e  not consi der ed  unf i t t i ng  at   t he  t i me.

We  not ed  hi s  r equest  t hat  hi s  LOD be  r ecl assi f i ed  as  i n  t he  l i ne of   dut y   ( I LOD)    r at her    t han    LOD    -    EPTS    Yes    wi t h    ser vi ce aggr avat i on.       He   has   not    pr ovi ded   suf f i ci ent    evi dence   t o   show t hat     hi s    LOD   shoul d    be    changed.       Ampl e    evi dence    has    been pr esent ed  howev er ,   t hat   i ndi cat es   hi s   i nj ur y   di d  exi st   pr i or   t o

ser vi ce  and  t hat	i t	was	aggr avat ed  by	ser vi ce.	He  has	not	met hi s  bur den  of	pr ovi ng  hi s  i nj ur y  di d  not		exi st	pr i or	t o  ser vi ce.

THE BOARD RECOMMENDS THAT:
The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that he was voluntarily ordered to active duty with the Air Force Reserve from 21 June 2004 until 21 March 2006.

The following members of the Board considered AFBCMR Docket Number BC-2008-01779 in Executive Session on 29 July 2009, under the provisions of AFI 36-2603:

Panel Chair 
Member 
Member

All members voted to correct the records, as recommended. The following documentary evidence was considered:

Exhibit A.	DD Form 149, dated 1 Apr 08, w/atchs. Exhibit B.	Applicant's Master Personnel Records. Exhibit C.	Letter, AFRC/A1K, dated 13 Feb 09, w/atchs. Exhibit D.	Letter, AFPC/DPSD, dated 13 Mar 09.
Exhibit E.	Letter, SAF/MRBR, dated 1 May 09.
Exhibit F.	Letter, Counsel, dated 3 Jun 09, w/atchs.

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