RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-01585 INDEX CODE: 108.03 COUNSEL: NONE HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: He be medically retired due to the injury he sustained in the line of duty (LOD) while in the Air Force. ________________________________________________________________ APPLICANT CONTENDS THAT: He is currently rated at 50 percent through the Department of Veterans Affairs (DVA) as a result of the LOD injury he sustained while on active duty in support of Operation ENDURING FREEDOM (OEF)/IRAQI FREEDOM (OIF). He underwent surgery as a result of the injury. He subsequently returned to the Inactive Ready Reserve (IRR) where he suffered a relapse of his injury, which resulted in an increase to his compensable disability percentage from 40 to 50 percent. With a 50 percent disability rating, he is unable to return to active status to complete 20 years of service as he intended before being injured. In support of his request, the applicant provides copies of excerpts from his military personnel records and correspondence from the DVA related to his injury and disability rating. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: Available records indicate the applicant served in the Air Force Reserve in the grade of technical sergeant (E-6). On 1 Dec 03, the applicant was ordered to active duty for a period of one year under the provisions of Title 10, United States Code (USC), Section 12302, Partial Mobilization, in support of OEF/OIF. His active duty tour was subsequently extended for an additional year. On 19 Nov 04, he sustained an injury to his back. An Informal LOD Determination was initiated on 23 Nov 04 and his injury was found to be in the LOD on 10 Dec 04. According to the applicant’s DD Form 214, he was released from active duty due to demobilization on 30 Nov 05 after serving the full term of his orders. On 22 Jul 08, the applicant was relieved from active status due to a conflict with his civilian employment and transferred to the Non-obligated/Non-participating Ready Personnel Section (NNRPS) of the IRR, effective 30 Jul 08. In accordance with the 8 Dec 06 SAF/AA memo, Return to Active Duty of Air Reserve Component (ARC) Members Unable to Perform Military Duties, members are eligible for active duty orders for periods they are unable to perform military duty as a result of a service connected condition. However, this policy only applies to members of the Selected Reserve in active status or members of the Participating IRR. The remaining relevant facts pertaining to this application are contained in the letters prepared by the appropriate offices of the Air Force, which are attached at Exhibits C and E. ________________________________________________________________ AIR FORCE EVALUATION: AFRC/SGP recommends denial, indicating there is no evidence of an error or injustice. The applicant incurred an injury which was found to be in the LOD. Based on the information provided, the applicant was never considered unfit for duty and therefore a medical evaluation board (MEB) was not accomplished. Any aggravation or reoccurrence of his previous injury would have to occur while in an active status for processing through the Disability Evaluation System (DES), which is the pathway to a possible medical retirement. Members assigned to the IRR are not considered actively participating and therefore are not entitled to processing through the DES. A complete copy of the AFRC/SGP evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 30 Jul 10 for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit D). ________________________________________________________________ ADDITIONAL AIR FORCE EVALUATION: The AFBCMR Medical Consultant recommends denial, indicating the applicant has not provided sufficient evidence upon which to conduct a reasonable analysis of his case. The Medical Consultant acknowledges the DVA has elected to grant the applicant a 50 percent disability rating. However, this fact alone is not determinative of his fitness to perform his duties in Jan 05, the date of termination of his profile, or anytime thereafter. The DVA, operating under Title 38, USC, is authorized to offer disability compensation for any service connected medical condition without regard to its demonstrated impact upon a service member’s fitness to serve. The applicant has not submitted documentation to show that he has been disqualified for continuation or resumption of his military service. It is likely he no longer qualifies under accession standards; nonetheless, with the evidence provided, he has not met the burden of proof of an error or injustice. A complete copy of the AFBCMR Medical Consultant’s evaluation is at Exhibit E. ________________________________________________________________ APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: A copy of the AFBCMR Medical Consultant’s evaluation was forwarded to the applicant on 29 Sep 10 for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit F). ________________________________________________________________ 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 an error or injustice. We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinions and recommendations of the Air Force office of primary responsibility and the AFBCMR Medical Consultant and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application. 4. 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 the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and 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-2010-01585 in Executive Session on 23 Nov 10, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 22 Apr 10, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFRC/SGP, dated 20 Jul 10. Exhibit D. Letter, SAF/MRBR, dated 30 Jul 10. Exhibit E. Letter, AFBCMR Medical Consultant, dated 27 Sep 10. Exhibit F. Letter, SAF/MRBR, dated 29 Sep 10.