RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2008-03852 INDEX CODE: 108.02 XXXXXXXXXXXXXXXXXX COUNSEL: HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: 1. His records be corrected to show he was medically retired on 29 December 2005; or in the alternative, his records be corrected to show he was medically separated with severance pay on 29 December 2005. 2. He be presented to a Medical Evaluation Board (MEB) and subsequent Physical Evaluation Board (PEB) for disability determination. 3. He receive back pay and allowances for two weeks of military out-processing appointments completed after separation due to his incomplete medical hold status. _________________________________________________________________ APPLICANT CONTENDS THAT: He was unfit for continued military service at the time of his separation and should have been processed through the Air Force Disability Evaluation System. He was never presented to a full MEB for his medical condition; instead he was separated due to not being selected for reenlistment under the Career Job Reservation (CJR) program. Had he been properly referred to an MEB, he would have been referred to a PEB, found unfit for duty, and medically separated with either separation pay or medically retired due to his disability. In support of his appeal, the applicant provides a brief from his counsel. The applicant’s complete submission, with attachment, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: Applicant entered active duty on 30 December 1999 and was honorably discharged on 29 December 2005. His DD Form 214, Certificate of Release or Discharge from Active Duty, reflects the reason for discharge as “completion of required active service.” The applicant was involved in a rear-end motor vehicle accident, on or about 22 August 2001, for which he complained of neck pain initially, which was later replaced by a complaint of low back pain and intermittent left lower extremity pain with numbness and tingling in the left foot. On 2 November 2005, the applicant was evaluated by the Midwest Neurosurgery Clinic at which time he reported experiencing “chronic and severe” back pain with intermittent left leg pain and foot numbness present since 22 August 2001. The evaluating surgeon indicated the applicant would be a good candidate for artificial disc replacement given his “chronic and discogenic back pain.” The surgeon noted the intent to perform surgery within the next month. On 9 December 2005, his commander rendered a letter indicating the applicant’s current physical condition had some effect on the mission by him not being worldwide deployment qualified due to lifting restrictions. On 12 December 2005, the Air Force Personnel Center Medical Standards Branch (DPAMM) indicated the applicant was certified to return to duty and despite four years of back pain, the applicant completed his enlistment with no MEB until a month prior to his expiration term of service. DPAMM stated the applicant was discharged for CJR disapproval and not due to his medical condition, thus he is not eligible for military disability. However, he may be eligible for Department of Veterans Affairs (DVA) compensation, as well as DVA disability and care. _________________________________________________________________ AIR FORCE EVALUATION: The BCMR Medical Consultant recommends granting partial relief by offering the applicant the basic pay status and payments he should have been under while conducting his two-week period of out-processing. The BCMR Medical Consultant is of the opinion the applicant has not met the burden of proof that an error or injustice has occurred warranting a change in his narrative reason for separation, or to grant him either a permanent retirement, or in the alternative, separation with severance pay. The BCMR Medical Consultant states that although the applicant had a legitimate clinical diagnosis from the date of his accident (2001) through the date of discharge (2005), there is insufficient evidence that the condition prevented him from meeting the mission requirements of his organization. Had he received the MEB previously planned in November 2005, there remains the distinct possibility he would have been returned to duty, noting his December 2005 established date of separation. Instead, he received a review-in-lieu-of (RILO) MEB, an abbreviated MEB, noting the statements in the record reportedly issued by DPAMM. A RILO MEB is an available tool utilized by health care providers and DPAMM in providing expeditious notifications and periodic (usually annual) updates on critical status of service members with an established disqualifying medical condition; or, under circumstances determined not to necessitate a full MEB, as may arise when a chronic medical condition does not appear to have interfered with completion of a term of service. While acknowledging that this method of review has been sometimes mischaracterized as a way to quickly get rid of our service members without proper assessment and compensation, the BCMR Medical Consultant finds no evidence of a malicious effort to separate the applicant, to violate his rights to a proper MEB, or to deprive him of disability compensation. Similarly, it is through this type of concerted and coordinated process of this same body that a determination for the necessity of a Medical Hold is established. According to Air Force policies, a Medical Hold, also under the authority of DPAMM, is not approved for completion of elective surgery or for is post- operative rehabilitation. Furthermore, addressing the applicant’s fitness to serve, none of his efficiency reports reflect a deficit in duty performance (predominantly “firewall 5’s), or the existence of a chronic or prolonged restriction to duty, that would otherwise have brought into question his ability to serve. The BCMR Medical Consultant acknowledges the purpose of Medical Hold and understands the arguable possible non-elective nature of the applicant’s proposed surgical treatment; notwithstanding the perceived advantages to pursuing surgical treatment (elective or not) while still in uniform. Nonetheless, the BCMR Medical Consultant is of the opinion the applicant’s mistaken belief he was in Medical Hold status, resulting in a delay in completing out-processing procedures until roughly two weeks after his date of discharge, occurred through no fault of his own. The BCMR Medical Consultant recommends consideration for reimbursing the applicant the pay he would have received during the period necessary for completing out-processing. This is not a medical determination, but only a consideration based upon what appears to have been breakdowns of communication between the applicant’s health care providers and personnel officials. The complete BCMR Medical Consultant’s evaluation is at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant’s counsel on 6 March 2009 for review and comment within 30 days (Exhibit D). As of this date, this office has received no response. _________________________________________________________________ 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 error or injustice in regard to the applicant’s request for two weeks of pay and allowances for the out-processing appointments he completed subsequent to his separation, due to the perception he was on a medical hold status. After careful consideration of the applicant's remaining requests and the available evidence of record, we are not persuaded that his honorable discharge for completion of required active service was improper or contrary to the provisions of the governing regulations which implement the law. Specifically, we note his contention that he should be presented to an MEB and PEB for disability determination; and, that he should have been medically retired, or in the alternative, medically separated with severance pay. However, we note that prior to his separation, his medical condition was evaluated by the Medical Standards Branch at Headquarters Air Force Personnel Center and it was determined his condition was such that he was returned to duty and not eligible for military disability compensation. In view of the above and 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 opinion and recommendation of the BCMR Medical Consultant and adopt his rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice in regard to his requests for evaluation by an MEB/PEB, and for a disability retirement or a disability separation with severance pay. Accordingly, that portion of the applicant’s requests is not favorably considered. _________________________________________________________________ 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 honorably released from active duty on 12 January 2006 versus 29 December 2005. ________________________________________________________________ The following members of the Board considered this application in Executive Session on 28 May 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 for AFBCMR Docket Number BC-2008- 03852 was considered: Exhibit A. DD Form 149, dtd 1 Jul 08, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, BCMR Medical Consultant, dtd 25 Feb 09. Exhibit D. Letter, SAF/MRBR, dtd 6 Mar 09. Panel Chair