RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2008-01824
		INDEX CODE:  108.00
		COUNSEL:  NONE
		HEARING DESIRED:  NOT INDICATED

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APPLICANT REQUESTS THAT:

The applicant is the widow of the deceased former servicemember.

She requests:

	1.  The Medical Evaluation Board (MEB) review started in early 2007 for her husband be completed to determine entitlements and benefits that may have occurred from the MEB decision.  

	2.  Her husband’s records be corrected to show that he was medically retired on the date of his death, 24 Jan 08.

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APPLICANT CONTENDS THAT:

Her late husband was in the process of undergoing a MEB; however, a procedural delay of over six months kept his case from further review.  When he died of cardiac arrest on 24 Jan 08, the MEB process was stopped.  His knee replacement and subsequent medical issues would have resulted in a medical retirement and she would have received medical and financial benefits.

In support of the application, applicant submits email communiqué and documentation extracted from the former member’s medical records.

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

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STATEMENT OF FACTS:

The decedent was a Reservist who served 29 years, 9 months and 29 days.  

The remaining relevant facts pertaining to this application, extracted from the applicant’s military records, are contained in the letters prepared by the appropriate offices of the Air Force at Exhibits C and D.

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AIR FORCE EVALUATION:

HQ AFPC/DPSD recommends denial.  DPSD states the Disability Evaluation System (DES) never received a referral to the Physical Evaluation Board (PEB) and therefore could not have given the member a medical retirement or discharge.

The complete DPSD evaluation is at Exhibit C.

HQ AFPC/JA recommends denial.  JA states the decedent was an Air Force IMA with more than 20 years of service.  He was serving in an active duty status on orders from 4 Dec 07 to 22 Feb 07.  His orders were amended and extended several times during 2007 while he dealt with two medical conditions; sleep apnea and a total knee replacement.  On 18 Jul 07, his Commandant submitted a letter stating that his medical condition had negatively impacted the squadron’s mission and recommended he undergo an MEB and subsequently be medically retired.  The MEB was initiated but was delayed for six months.  On 24 Jan 08, the servicemember suffered fatal cardiac arrest prior to completion of the MEB.

The final service order indicates the decedent had over 31 years of service for basic pay purposes and just less than 30 years of service for Title 10 U.S.C 12732 purposes.  

His records indicate he suffered a knee injury in Mar 05 while playing basketball in the base gymnasium while serving as an active duty reservist.  His injury was determined to have occurred in the Line of Duty (LOD).  He had knee surgery on or about 25 Mar 05 to repair his ligament but the medical documentation stated that a full knee replacement would probably be necessary in the future.

He was diagnosed with sleep apnea in 2007 while on active duty orders.  An LOD was conducted on this medical condition and concluded that it occurred while in the line of duty; however, the LOD board non-concurred in this finding and held that the condition existed prior to service (EPTS).  On 25 Oct 07, the approving authority held that this illness was EPTS.  In early 2007, he was evaluated for a total knee replacement.  The surgery was scheduled for 14 May 07, and his orders were extended to Jun 07 for rehabilitation and recovery.  However, correspondence dated 20 Sep 07 indicates that the former servicemember may have delayed his surgery until Sep 07 to determine whether he needed orders.  In fact, the email states the entire MEB process would have to be reaccomplished because of the addition of the sleep apnea condition.  This correspondence was prior to the final LOD board finding that the sleep apnea was EPTS.

There is nothing to verify whether the MEB had ever begun to consider his case and no evidence to support that the MEB was ever started or delayed.  

JA notes the applicant has not sufficiently established any legal basis for relief.  While the record supports an inference that an MEB began there is no evidence supporting a conclusion that the military failed to timely process the MEB.  In fact, the only reasonable conclusion is that the former service member delayed the MEB by delaying his surgery to ensure whether orders were necessary.  Although he cannot be faulted for making this financial decision, it in no way supports a finding of any illegal or improper processing of his MEB by the Air Force.

JA states it appears the Air Force properly referred the member to the MEB and events beyond anyone’s control resulted in his passing away prior to the MEB’s completion.  The MEB cannot be completed now as the primary purpose of the MEB is to determine the member’s fitness to return to duty and he is now deceased.

JA opines the possibility that the member’s attempt to add the sleep apnea to the MEB delayed the process; however, it is unclear how the LOD board’s subsequent finding of EPTS might have impacted the MEB process.  If the member delayed his MEB for the purpose of adding the sleep apnea, he would bear responsibility for any delay resulting therefrom.  

JA concludes injustices have long been defined in the BCMR context as treatment by military authorities “that shocks the sense of justice, but is not technically illegal.”  There was no legal error in this case.  

The complete JA evaluation, with attachments, is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant believes her case should be granted due to all the years her husband served.  She states he worked hard to get this decision finalized before he passed away.  He believed he deserved medical retirement for all the pain he suffered during the last years before his death. 

Her complete response is at Exhibit F.

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BCMR MEDICAL CONSULTANT EVALUATION:

The BCMR Medical Consultant recommends medically retiring the deceased service member with a 30 percent disability rating, effective 24 Jan 08.

The Medical Consultant states the applicant had at least one legitimate medical condition, right knee arthoplasty, which he strongly opines would have formed the basis for termination of his military career had an MEB and referral to a PEB been conducted prior to his death.  The applicant’s efforts to assure all of his medical and administrative concerns were answered should not be viewed as a deliberate act for secondary gain, or as an error or injustice on the part of the government.  His untimely death was certainly not anticipated by either medical officials treating him nor those responsible for carrying out his MEB; particularly since the cause of death was unrelated to the principal line of duty knee ailment under review.  With reference to his knee arthoplasty, had he been found unfit by a PEB, he would likely have received a 30 percent disability rating, the minimum rating for a total knee arthoplasty as outlined in the Veterans Administration Schedule for Rating Disabilities.  

In conclusion, the Medical Consultant is well aware that despite the established performance timeliness for conducting MEBs, occasionally delays in timely processing may occur among Reserve component units due to a variety of causes, e.g., availability of consultants, deployments, lengthy LOD processing, service members errantly deactivated.  Judging from the email traffic of record, it appears that medial administrative officials were very interested in meeting the applicant’s needs up to the time of his death.  Therefore, while there appears to be no error or injustice in the processing of his MEB, the Board may elect to render a finding in favor of the applicant based upon the much earlier identification of his medical impairment (June 05) and the posturing of an MEB (22 Nov 06), the continued symptoms despite the multiple surgical interventions, the full year that transpired (2007) while holding a disqualifying profile, and the 10 Jan 08 measurements of his knee range of motion taken for the impending MEB.   

The complete BCMR Medical Consultant’s evaluation is at Exhibit G.

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APPLICANT'S REVIEW OF BCMR MEDICAL CONSULTANT EVALUATION:

A copy of the additional BCMR Medical Consultant’s evaluation was forwarded to the applicant on 19 Dec 08 for review and comment within 30 days.  As of this date, this office has received no response. 

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THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was timely filed.

3.  Sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice.  While there is no way to determine with certainty if the applicant’s medical condition would have resulted in his separation from military service, we took notice of the BCMR Medical Consultant’s assessment that his right knee arthroplasty would have formed the basis for termination of his military career via the MEB and PEB process and his being found “unfit” would likely have resulted in his receipt of the minimum 30 percent disability rating; thereby resulting in his eligibility for a medical retirement.  Therefore, we agree with the opinion and recommendation of the BCMR Medical Consultant and recommend the applicant’s records be corrected as indicated below.

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THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that: 

	a.  On 22 Jan 08, the applicant was found unfit to perform the duties of his office, rank, grade, or rating by reason of physical disability, incurred while he was entitled to receive basic pay; that the diagnosis in his case was status-post right total-knee arthroplasty, a condition which is rated at a compensable percentage of 30%, under  Veterans Administration Schedule for Rating Disabilities (VASRD) code 5055; that the degree of impairment was permanent; that the disability was not due to intentional misconduct or willful neglect; that the disability was not incurred during a period of unauthorized absence; and that the disability was not received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war.

	b.  He was discharged from active duty on 22 January 2008, and on 23 January 2008, he was permanently retired by reason of physical disability with a 30 percent compensable disability rating, in the grade of Technical Sergeant.

	c. On 22 January 2008, he elected full and immediate spouse only coverage (Option CA) under the Reserve Component Survivor Benefit Plan (RCSBP), naming Louise Blevins as spouse beneficiary based on full retired pay.

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The following members of the Board considered this application in Executive Session on 5 February 2009, under the provisions of AFI 36-2603:

	XXXXXXXXXX, Vice Chair
	XXXXXXXXXX, Member
	XXXXXXXXXX, Member

The following documentary evidence was considered for AFBCMR Docket Number BC-2008-01824:

	Exhibit A.  DD Form 149, dated 7 May 08, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, HQ AFPC/DPSD, dated 14 Jul 08.
	Exhibit D.  Letter, HQ AFPC/JA, dated 7 Aug 08.
	Exhibit E.  Letter, SAF/MRBR, dated 22 Aug 08.
	Exhibit F.  Letter, Applicant, not dated, w/atchs.
	Exhibit G.  Letter, BCMR Medical Consultant, dated 16 Dec 08.
	Exhibit H.  Letter, SAF/MRBR, dated 19 Dec 08.

                                  XXXXXXXXXX
                                  Vice Chair