RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-04385 COUNSEL: NONE HEARING DESIRED: YES _________________________________________________________________ APPLICANT REQUESTS THAT: His voluntary Reserve retirement be changed to a medical retirement. _________________________________________________________________ APPLICANT CONTENDS THAT: He was not given an opportunity to go to a Physical Evaluation Board (PEB). He was told to either retire or remove two stripes to remain on active duty. In support of his appeal, applicant provides copies of his National Guard Bureau (NGB) Form 22, Report of Separation and Record of Service, DD Form 214, Certificate of Release or Discharge from Active Duty, and documents extracted from his medical records related to this matter. Applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant’s records reflects he served on active duty from 27 Feb 04 through 15 May 04. He was retired from the West Virginia Air National Guard on 6 Dec 04, after serving 29 years, 1 month and 1 day of total service for pay. Reserve Order EK-005 reflects the applicant was transferred was placed on the Retired Reserve List on 8 Dec 04. The applicant's medical records reflect that while on active duty he was treated for a variety of medical conditions to include right ankle pain, fractured scapula, fractured ribs, gout, hypertension and a rotator cuff tear. His records further reflect he was placed on several profiles, at times restricting worldwide qualification and other times not prohibiting worldwide qualification. The applicant is receiving service connection disability compensation from the Department of Veterans Affairs (DVA) for the following: 20% for gout, 10% for hypertension, 10% for rotator cuff tear, 10% for gastroesophageal reflux disease, and a non compensable rating for right knee injury. The remaining relevant facts pertaining to this application are contained in the letter prepared by the appropriate office of the Air Force, which is attached at Exhibit C. _________________________________________________________________ AIR FORCE EVALUATION: The AFBCMR Medical Consultant recommends denial noting the applicant has not met the burden of proof of an error or injustice that warrants changing his voluntary retirement to a medical retirement. The initiation of a Medical Evaluation Board (MEB) is not an elective choice of the service member, but the decision of the service member’s health care provider or commander based upon presence of a disqualifying medical condition, a significant health or mission risk, inordinate use of resources to maintain function, or one which chronically has interfered with duty, among other factors. Following the convening of a MEB, the medical documentation is reviewed by a PEB to determine the individual's retainability or fitness to serve; then, if found unfit, assignment of the appropriate disability rating for the unfitting medical condition. The Medical Consultant notes if the applicant received an MEB within the 12 months of an approved retirement or retention control point, he would have been presumed FIT (under the presumption of fitness rule) and returned to duty to proceed with his approved retirement request. Although, the applicant’s record indicates he was periodically placed in the do not include flying (DNIF) status and was treated for a variety of ailments the medical evidence does not demonstrate a sufficient impediment to functioning that warrants a retroactive processing through the military Disability Evaluation System (DES) or a medical retirement. The DES was established to maintain a fit and vital fighting force. Under Title 10, United States Code (U.S.C.), the DES can only offer compensation for those service incurred diseases or injuries which specifically rendered a service member unfit for continued active service and was the cause for career termination. The Department of Veterans Affairs (DVA) operates under a different set of laws and is authorized to offer compensation for any medical condition with a nexus to military service, without regard to its demonstrated or proven impact upon a service member's retainability, fitness to serve, narrative reason for release from military service. The DVA compensation system, was written to allow awarding compensation ratings for conditions that were not considered unfitting for military service at the time of release from military service. This is the reason why an individual can be found fit for release from military service and yet sometime thereafter receive compensation ratings from the DVA for service-connected, but militarily non- unfitting conditions. The DVA is also empowered to conduct periodic re-evaluations for the purpose of adjusting the disability rating awards as the level of impairment from a given service connected medical condition may vary over the lifetime of the veteran. Although the applicant was treated for several ailments, he has not provided sufficient evidence showing these ailments warranted consideration under the (DES); or that his medical conditions disqualified him for continued service. The complete AFBCMR Medical Consultant’s evaluation is at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: He was not forced out based on his medical condition, it was due to him not being able to obtain a waiver for the medications he was taking. He was told his only alternative to remain on active duty was to accept a position in a lower rank. The 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. 2. The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file. 3. Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice regarding the applicant's request to change his Reserve retirement to a medical retirement. We took notice of the applicant’s complete submission in judging the merits of the case, to include his rebuttal; however, we agree with the opinion and recommendation of the AFBCMR Medical Consultant and adopt his rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice. Although the applicant was treated for a variety of ailments and was at times restricted from flying, we found no evidence he had a medical condition that warranted processing through the Disability Evaluation System. The Disability Evaluation System can only offer compensation for those service incurred medical conditions which specifically rendered a member unfit for continued military service and were the cause for career termination. The mere presence of a medical condition during military service does not automatically constitute a basis for a disability separation or retirement. As for his contention regarding being told he could only remain on active duty if he accepted a position as staff sergeant, other than his own assertions, he has provided no evidence in support of this contention. 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 issue(s) 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; 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-2011-04385 in Executive Session on 10 Oct 12, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 2 Nov 11, w/atchs. Exhibit B. Applicant’s Military Master Personnel Records. Exhibit C. Letter, AFBCMR Medical Consultant, dated 15 Aug 12. Exhibit D. Letter, SAF/MRBR, dated 5 Sep 12. Exhibit E. Letter, Applicant, dated 23 Sep 12, w/atchs.