RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF:	DOCKET NUMBER:	BC-2008-02959 INDEX CODE:	108.00, 110.00

COUNSEL:	XXXXX HEARING DESIRED: YES

APPLICANT REQUESTS THAT:
1.	The Board determine that he was the victim of reprisal under Title 10, Section 1034, he be appointed a military attorney, he be granted a personal hearing to afford him the right to subpoena witnesses and take depositions to assist the AFBCMR in making an informed decision, the BCMR recommend to the DoD/IG that a formal and full-scale investigation of the Air Force Reserve Command (AFRC) commander and his subordinates in charge of the AFRC Disability Evaluation System (DES) take place, and his military records be corrected accordingly.

2.	He be reinstated on extended active duty in a medical hold status with all pay and entitlements backdated to 31 July 2008, the date of his retirement – or – in the alternative the Air Force Board for Correction of Military Records (AFBCMR) Medical Consultant, based on the totality of medical evidence provide a recommendation that he be disability retired with 100% disability rating.

3.	That the two Review in Lieu Ofs (RILOs), one accomplished on or about 23 July 2008 and the second RILO, dated on or about
30	July 2008, be removed from his record and replaced with a substantively documented single RILO so he can qualify for Veteran’s Administration treatment, Social Security, and other entitlements under the law.

APPLICANT CONTENDS THAT:
He was wrongly denied a High Year Tenure (HYT) waiver that would have extended his Active/Guard Reserve (AGR) tour with HQ AFRC to at least 24 April 2009. His waiver was denied due to a verbally instituted moratorium, outside Air Force Instructions (AFIs), by the AFRC/CC and the AFRC Command Chief that no HYT waivers for chief master sergeants (CMSgts) would be approved. Had he not been a CMSgt, he believes his HYT would have been approved. He notes the Air National Guard (ANG) and the Air Force adhere to the appropriate AFI and do not have verbal policies that impact such a critical area.

Prior to his HYT date of 31 July 2008, he had requested entry into the DES until such time as he was either returned to full

duty or that a final adjudication of his case had been provided by a Formal Physical Evaluation Board (FPEB). His attempts to enter the DES were denied and ultimately put to rest when on
31	July 2008; he was wrongly discharged from the military with ongoing world-wide-duty unfitting conditions and transferred to the Inactive Ready Reserve (IRR) on  August  awaiting Reserve retired pay at age 60.

The following paragraphs describe his contentions in greater detail:

1.	As he was to undergo ‘elective’ surgery prior to his impending discharge from active duty, he was required to sign a statement indicating his understanding that he would be separated from active duty orders on the scheduled end date of his orders despite continued hospitalization or convalescence. The statement went on to read that he would not be granted medical continuation orders for post-operative hospitalization, convalescent leave, or complications. He signed the letter but as a caveat, he included a written comment on the letter stating that he did not concur with the noted statement and that he opted to be continued on his current orders until such time as he was fully recovered with follow-on physical therapy and had been released by his orthopedist.

2.	Long before  the applicant’s medical records were fully developed for a proper DES evaluation, officials from AFRC/SG, AFPC/DPPAM and his local military treatment facility (MTF) engaged in a pre-decisional denial of the applicant’s request for medical hold.

3.	The DOD/IG has claimed that the applicant’s ‘protected communications’ surrounding his DES grievances were not received by them. The DOD/IG’s claim that it has no current case on file from the applicant is lacking in credibility and integrity and is ultimately false as the applicant has submitted a reprisal filing.

4.	As far back as 2006, 2007 and through May 2008, his primary care manager (PCM) at his MTF failed to initiate or enter into his medical records any profile status information for his seven significant surgical interventions that would otherwise have indicated his limitations for worldwide duty.

Clearly, as the undisputed facts and circumstances and supporting military and civilian medical documentary evidence shows in his case; he has been denied appropriate active duty medical hold orders and continuation of medical treatment and if applying the reasonable person theory as applied by U.S. Federal courts; his case screams ‘medical malpractice’ for which he should have been continued on active duty for the purpose of entering the DES.

In support of his appeal, the advocate for the applicant has provided a cover letter along with a personal statement from the

applicant	with	several	attachments,	and	his	service	medical records.

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

STATEMENT OF FACTS:
Applicant began his military service on 26 February 1968. He was progressively promoted to the grade of CMSgt effective and with a date of rank of 1 March 2005. On 12 April 1999, he accepted an AGR tour with the HQ AFRC. At the time he accepted the tour his HYT date was 31 July 2008, which would leave him approximately five years shy of the 20 years of active duty service required to qualify him for an active duty retirement for length of service. In the spring of 2008, he applied for an HYT waiver in order to extend his tour date to 2009 (his 60th birthday). His waiver request was denied. He presented to HQ AFRC/SGP in May 2008 with concerns over his pending HYT date of 1 August 2008 and its conflict with several potential medical conditions.

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

AIR FORCE EVALUATION:
AFRC/SGP recommends denial. SGP states the applicant initially applied for medical hold as he was concerned that his right shoulder surgery would require seven to nine months of physical therapy that would take him past his HYT date. AFRC/SGP, the approval authority for medical hold consideration, reviewed the documentation in view of the applicant’s concerns and determined that the applicant’s non-emergent, elective right shoulder surgery and it’s follow-on physical therapy of seven to nine months did not overcome the presumption of fitness required to grant medical hold. Further, SGP notes the AFIs clearly state that medical hold is not to be used for recovery from non-urgent (elective) surgeries.

SGP states the applicant then presented concerns regarding a previously undiagnosed cardio-pulmonary condition. The necessary consults were completed which revealed normal functional status and no impairment to his cardiovascular and pulmonary systems. SGP states the Chief of Aerospace Medicine continued to review all medical documentation submitted by both the member and the supporting MTF up until he was retired. After comprehensive evaluation of the applicant’s complaints both individually and collectively, it was determined that he did not overcome the presumption of fitness and that to grant medical hold for

recovery from an elective surgery or for civilian employment issues was in violation of the policy and laws that govern medical hold.

SGP’s complete evaluation is at Exhibit B.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
Clearly, the failure of AFRC/SGPs advisory to address the ‘pre- decisional’ subject matter of AFRC/SG and AFPC/DPAAM and their unlawful attempt to create a false paper trail to support the advisories’ administrative findings and denial of medical hold orders is both an error and an injustice. Most importantly, the undisputed fact that long before the applicant’s separation from active duty, he was not qualified for world-wide duty (WWD) and was rarely ‘in-garrison’ performing any duties due to the substantial medical problems he was experiencing, among other things, should make the SGP advisory frivolous.

The remaining pertinent facts surrounding the advocate for the applicant’s rebuttal, with attachments, can be found at Exhibit F.

ADDITIONAL AIR FORCE EVALUATION:
HQ AFRC/JA recommends denial. JA states their advisory addresses the applicant’s allegation he was improperly allowed to retire and not extended on active duty due to his medical condition. JA states the applicant was aware when he accepted his Active AGR tour that the HYT program would require his retirement at the expiration of his tour on 31 July 2008 – prior to his retirement for length of service retirement eligibility. However, in the spring of 2008 the applicant made various attempts to obtain a waiver so that he could remain on active duty until April 2009, presumably to qualify for an active duty length of service retirement. His waiver was denied and he began presenting various medical issues that he believed would make him unfit for duty thereby qualifying him for medical hold until he either reached April 2009 or he was disability retired.

JA states the applicant’s assertion is that due to unlawful influence, two medical personnel from his MTF made their decision that he did not overcome the presumption that he was fit for duty. Similarly, the AFRC/SG and SGP both concurred that the medical conditions of the applicant, both individually and collectively, did not overcome the presumption of fitness and therefore declined to place the applicant on medical hold. JA states the medical conditions of the applicant did not prohibit him from performing his duties which were administrative in nature. Further, had he not been retired, he would have been returned to duty.  JA notes that even as he endeavored to obtain

medical hold due to unfitness, he was concurrently seeking civilian employment with a Government contractor performing the same type of duties he performed in the military.

JA notes the applicant’s presentation of a due process violation concerning the processing of his DES case. In fact, as he did not overcome the presumption of being fit for duty, he was never formally entered into the DES process. Thus, there was no due process entitlement. JA also notes the applicant’s relatively late request for medical hold to extend his active duty tour that placed additional burdens on an already stressed medical community.

The applicant asserts an email exchange between AFRC/SGP and AFPC/DPAMM was a conspiracy to deny entitlements. JA believes a fair reading of said email exchange displays only a professional exchange of the merits of the applicant’s case.

Not only has the applicant not presented evidence to support his allegations, JA notes to the contrary, that all of the medical practitioners involved in his case assert there was no unlawful influence placed on them and that their independent professional judgments and decisions were based solely on their medical training and experience. The applicant did not overcome the presumption of fitness and there is therefore no basis to overturn the decisions made by AFRC/SG and AFPC/DPAMM.

AFRC/JA’s complete evaluation, with attachments, is at Exhibit E.

APPLICANT'S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATION:
Advocate for the applicant states that the involvement of Col S,
- an AFRC Staff Judge Advocate (SJA) and the signatory of the AFRC/JA advisory - is unlawful as Col S is an IG/10 United States Code (USC) Chapter 1034 and DoD/IG subject arising from her failure to act and prevent the applicant’s discharge. Col S’s involvement in the legal advisory process of these proceedings is a conflict of interest and thus lacks ‘independence’ as due process of law demands.

JA’s attempt to imprison the applicant’s rights to constitutional due process and equal protection under the laws of the DES, in conjunction with their subjective views, that are not only highly unethical but also make a mockery of the BCMR legal advisory process.

JA’s argument that the applicant could perform ‘in-garrison’ duties is a red herring as the applicant contends he was rarely in-garrison performing his duties for his final two years of service because of convalescent time and physical therapy he underwent as a result of several surgeries. Therefore, JA’s contention the applicant was fit for ‘in-garrison’ duties is incorrect.  JA’s red herring assertion that the applicant was not

entitled to DES processing because of his planning to obtain civilian employment is a moot argument and should not be considered.

The remaining pertinent facts surrounding the advocate for the applicant’s additional rebuttal, with attachments, can be found at Exhibit H.

ADDITIONAL AIR FORCE EVALUATION:
The BCMR Medical Consultant recommends denial of the applicant’s request for reinstatement to active duty status from July 31, 2008 through April 24, 2009 along with his request for a medical retirement with a 100% disability rating. The BCMR Medical Consultant states although AFRC/SG, AFPC/DPAMM and the applicant’s PCM utilized existing Air Force and DoD policies to expedite the applicant’s separation, there remains a deficient explanation of why a more timely and complete medical assessment was not conducted prior to the applicant’s entry to the presumptive period and at completion of his RILO MEB. The Medical Consultant opines that had the applicant been extended beyond his HYT in order to complete additional recommended post- operative rehabilitation, he more likely than not would have remained highly vulnerable for a return to duty decision, even if he had been referred to a PEB or a subsequent appellate review board. Thus, in fairness, the BCMR Medical Consultant recommends alternatively, to extend the applicant’s period of active military service from August 1, 2008, through November 13, 2008, to cover the minimum six months (of a recommended 6 to 12-month regimen of physical therapy) of further recovery and rehabilitation recommended by his orthopedic surgeon, as entered into the medical narrative summary dated May 22, 2008.

The remaining pertinent medical facts are contained in the evaluation prepared by the BCMR Medical Consultant at Exhibit I.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A copy of the BCMR Medical Consultant’s evaluation was forwarded to the applicant and his advocate on 13 November 2008 for review and comment within 30 days. As of the Board Date of 15 January 2009, no response has been received by this office.

Examiners Note: The Board received an email from VERPA on behalf of the applicant with several attachments on or about 5 January 2009. A cover page from VERPA indicated that the attachments formed what should be considered Exhibit M of the application. It was placed in the application just after Exhibit L found under Tab A of his application.

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. In reviewing the applicant’s case, we looked at his allegation of reprisal based on whether the evidence supported that favorable personnel actions were withheld based on his having made a protected communication pursuant to Title 10, Section 1034. The applicant contends the reprisal occurred after he filed a joint Department of Defense Inspector General (IG) Hotline and a grievance with the AFRC IG. In reviewing the allegation of reprisal, we are aware the applicant considers the actions of his not being entered into the disability evaluation system and the denial of being placed on medical hold as exemplification of reprisal against him. However, after thoroughly reviewing the complete evidence of record in this case, we do not find the applicant’s allegation of reprisal is supported by substantial independent corroborating evidence. The applicant has alleged conspiracy on the part of his medical care providers and his chain of command to deny him what he believes were his undeniable rights to be entered into the disability evaluation system and placed on medical hold. In our view, the evidence provided simply is not sufficient for us to find that he is the victim of reprisal. Even if one were to find that the applicant’s case has been wrongly handled,  we do not find evidence to support that decisions were made on the basis of reprisal. Accordingly, we do not find a basis to grant any relief on the basis of reprisal.

4.	Notwithstanding our determination regarding the allegation of reprisal, we further reviewed the applicant’s case to determine if the personnel actions denied in his case, i.e., entry into the DES and placement on medical hold, were done in error or if the application of policy in this instance caused the applicant an injustice. Before addressing the issues of whether the applicant should have been entered into the DES or placed on medical hold, we reviewed the applicant’s contention he was wrongly denied a waiver of his high year of tenure. Based on our review of the evidence submitted by the applicant, we do not find the commander’s denial of his HYT waiver to be arbitrary and capricious and find that the decision of whether or not to grant an extension was completely within the commander’s discretionary authority. Other than the fact the applicant does not agree with the disapproval, he has not presented a compelling case the denial was wrong and violated applicable policy. AFRC/JA has speculated that the applicant was motivated to be entered into the DES or placed on medical hold as a result of the disapproval of the HYT waiver and the applicant’s desire to obtain an active duty retirement. A review of the applicant’s records reveals that even if he had been extended on active duty, he did not have
1.	
sufficient service to qualify for an active duty retirement. At any rate, we do not consider this to be of significance in evaluating the merits of his allegations as how close the applicant was to retirement should not have played a role one way or the other in the decisions made in his case.

With regard to the applicant’s contention he should have been entered into the Disability Evaluation System, we accord great deference to the medical personnel entrusted with the care of our military members. The applicant would like for the Board to believe that several medical care providers along with his commanders conspired to wrongly deny him entry into the DES or to approve him for medical hold. Accusations such as these are not to be taken lightly. However, as the Board is not an investigative body, it is the applicant’s burden to provide sufficient evidence to substantiate he is the victim of error or injustice. In our view, the evidence submitted by the applicant does not substantiate that he should have been entered into the DES, placed on medical hold, or provide credible evidence of a conspiracy to deny him any proper entitlements. We note that our BCMR Medical Consultant in his independent review of the applicant’s records opines that “had the applicant undergone a full MEB (during the 12 month presumptive period of his HYT date), even if it included additional medical conditions not previously listed in his RILO MEB, he more likely than not would have been returned to duty by a PEB to complete his military service.” Additionally, based on our reading of the policy on medical hold, as well as the BCMR Medical Consultant’s cogent analysis of the policy in light of the applicant’s medical status, we do not find that failure to place the applicant on medical hold was an improper application of policy. Given the applicant’s strong allegations of misfeasance against them, his care providers have certified they used their own independent judgment in making decisions regarding his medical care, independent of any outside influence. When considering their affirmation, the evidence of record, and the independent review of the BCMR Medical Consultant, we believe the applicant’s case was appropriately handled. In that regard, we decline to accept the BCMR Medical Consultant’s alternate recommendation the applicant’s separation date be extended to 13 November 2008 to cover the minimum period of recuperation as recommended by the applicant’s Orthopedic Surgeon. As pointed out in the record, the applicant acknowledged that the surgery he was receiving was considered elective and did not qualify to extend his separation date, albeit the applicant penciled in his disagreement. We considered the applicant’s view that a conflict of interest exists because the writer of the AFRC advisory is named in the applicant’s IG complaint. However, we are aware of no finding of impropriety against the advisory writer and do not find that their analysis and recommendation in the case go beyond what the evidence supports. Therefore, in the absence of evidence to the contrary, we find no basis to grant the relief sought in this appeal.

5.	We noted the applicant’s request for a new RILO that he appears to believe is necessary to qualify for Veteran’s Administration (VA) and Social Security benefits and other entitlements under the law. However, he has not shown that the RILO of record has been used to deny him entitlement to benefits from the VA or Social Security. Further, we noted the Medical Consultant’s comment that while the RILO could have included more information with regard to his medical issues, the applicant has not shown that  the inclusion of such would have had any appreciable effect on the outcome of his case, particularly in light of the commander’s statement that accompanied the RILO.

We also noted his contention that his PCM failed on several occasions to record physical profile status in his medical records that might have indicated his limitations for worldwide duty. The Medical Consultant noted that three profiles were present in his SMR but none of them indicated a prohibition for world wide duty nor did any of them indicate the existence of significant impairment of function. The Medical consultant opines that it could be reasonably assumed that the applicant was likely unable to perform the full spectrum of his duties while undergoing his post-operative recovery and rehabilitation but no such designation of the applicant’s level of functioning or lack thereof appears in the record. The Medical Consultant also notes that while a plausible argument exists that the applicant should have received a more thorough, more accurate and more timely assessment of his fitness to serve, the applicant has not shown by a preponderance of the evidence that he was unfit for duty to the point a physical profile would have had to be done to restrict his job performance or affect his world wide duty qualification beyond that required for post-operative recovery and rehabilitation.

6.	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-2008-02959 in Executive Session on 15 January 2009, under the provisions of AFI 36-2603:

Panel Chair 
Member
Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 11 August 2008, w/atchs. Exhibit B. Letter, AFRC/SGP, dated 5 September 2008.
Exhibit C. Letter, SAF/MRBR, dated 11 September 2008. Exhibit D. Letter, SAF/MRBR, dated 12 September 2008.
Exhibit E. Letter, AFRC/JA, dated 16 September 2008, w/atchs. Exhibit F. Letter, Advocate, dated 18 September 2008,
w/atchs.
Exhibit G. Letters, SAF/MRBR, dated 22 September 2008. Exhibit H. Letter, Advocate, dated 13 October 2008, w/atchs. Exhibit I. Letter, Medical Consultant, dated 13 November
2008.
Exhibit J. Letters, SAF/MRBR, dated 14 November 2008.