RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-03057 COUNSEL: NONE HEARING DESIRED: YES APPLICANT REQUESTS THAT: 1. The finding of discharge with severance pay with a disability rating of zero percent be changed to return to duty. 2. She be promoted to the grade of staff sergeant (SSgt), E-5. 3. She remain on active duty until the completion of her disability processing. APPLICANT CONTENDS THAT: She should have been returned to duty and not medically separated. She underwent two medical exams that indicated she was fit for duty. She was fit for duty and should have received promotion to SSgt. She requested to participate in drills but was not allowed to participate for pay and points. Her commander wrote an erroneous impact statement indicating that she could not perform her duties even though she never served under that commander. The narrative summary (NARSUM) and Physical Evaluation Board (PEB) inaccurately stated she had chronic pain for four years. The disability processing was not conducted until a year after her medical evaluation board (MEB). She was never counseled while undergoing the MEB process. She should have received travel or active duty pay while undergoing MEB processing. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: On 21 Nov 02, the applicant commenced her enlistment in the Air Force Reserve. According to documentation provided by the applicant she was on continuous orders for active duty for special work (ADSW) from 14 Oct 09 through 17 Dec 10. On 26 Apr 09, the applicant suffered a right Tibial plateau fracture while participating in a motorcycle safety course. She required surgery to fix the fracture. On 16 Jun 09, an Informal Line of Duty Determination (ILOD) was initiated to determine if the applicant’s right Tibial plateau was incurred in the LOD. On 2 Jul 10, the LOD approval authority found that his right Tibial plateau fracture was incurred in the LOD. On 22 Jul 10, the Air Force Reserve Center (AFRC) LOD Board determined the applicant’s injury was incurred in the LOD. A memorandum from the 459 Communications Flight Operations Manager reflects the applicant performed active duty for the following periods: 27 -28 Dec 10 3-7 Jan 11 10 Jan – 25 Mar 11 30 Mar – 29 Apr 11 2 May – 1 Jun 11 14-16 Jun 11 12 Jul – 6 Sep 11 27 Sep 11 According to an Air Force (AF) Form 469, Duty Limiting Condition Report, dated 23 Oct 12, the applicant was pending an MEB. No deployment, permanent change of station (PCS), and temporary duty (TDY). No repetitive high impact activities to lower extremities for more than 100 yards, no cycling or walking. On 28 Mar 13, the applicant underwent a MEB for her right lateral Tibial plateau fracture. The MEB noted the applicant’s recurring knee pain made it difficult for her run or walk long distances. Her primary duty was administrative and she was able to perform daily duties without difficulty. It was further noted there was no occupational impact as it related to the applicant’s knee pain. Her prognosis was characterized as fair. The applicant had been on a physical profile exempting her from the running and walking portion of the Fitness Assessment (FA). An x-ray revealed an internally fixed avulsion fracture of the proximal tibia. The MEB referred her case to the Informal Physical Evaluation Board (IPEB). On 30 Apr 13, the IPEB found the applicant unfit due to chronic right knee pain, status-post surgical repair of Tibial plateau fracture, while awaiting the disability rating from the Department of Veterans Affairs (DVA). The DVA conducted a Compensation and Pension examination in which the applicant reported no constitutional symptoms, no incapacitating episodes; she was able to stand for up to one hour with no limitation to walking. It was further noted the applicant experienced pain with certain movements such as stairs or twisting, however, the pain was brief. Painful flare-ups were precipitated by exercising and cold weather, but were alleviated with rest. She was assigned a zero percent disability rating for her right knee fracture with residuals, and a zero percent for the surgical scar. On 26 Jun 13, the IPEB evaluated the applicant’s case and noted that while the applicant’s principal Air Force Specialty Code (AFSC) was administrative, she would still be required to perform physical tasks outside her office (e.g., inspections, training, deployments) which she was not at the capable of performing. They further noted her prognosis was fair for future improvement and that her recovery would be impacted by continued stress of maintaining military fitness. The IPEB recommended discharge with severance pay with a zero percent disability rating. On 3 Jul 13, applicant non-concurred and requested a Formal Physical Evaluation Board (FPEB) hearing, with counsel. The applicant noted her physical participation in military activities and that her former commander, who departed while she was undergoing the MEB process, made favorable statements regarding her retention. The applicant further believed she was found unfit based on her new commander’s comments in her mission impact statement. The FPEB evaluated her case and medical information and recommended discharge with severance pay with a zero percent disability rating. A 16 Aug 13 medical entry noted the applicant requested her medical provider remove her profile restrictions. It was also noted that she was able to perform all portions of the physical fitness test and could carry 40 pounds on her back. It was further noted the Physical Evaluation Board Liaison Officer (PEBLO) informed the provider he would be unable to remove the profile pending the FPEB. On 28 Aug 13, the applicant non-concurred with the findings and recommendations of the FPEB and requested a review by the Secretary Air Force Personnel Council (SAFPC). On 4 Sep 13, the applicant again requested the profile be removed indicating she was not having any pain issues. On the same date it was noted by certified Physician Assistant (PA) that the applicant completed a physical health assessment and that no ailments were noted, she no longer needed a profile and she can perform all aspects of the physical fitness test. On 2 Oct 13, SAFPC directed the applicant be discharged with severance pay with a disability rating of zero percent. The applicant requested reconsideration of her rating by the DVA. On 7 Dec 13, the DVA determined a change in the applicant’s rating was not warranted. The discharge message was sent establishing the applicant’s discharge date as 28 Jan 14. AIR FORCE EVALUATION: AFPC/DPFD recommends denial of the applicant’s request to overturn the finding of discharge with severance pay. There is no evidence an error or injustice occurred during the disability processing. A complete copy of the AFPC/DPFD evaluation is at Exhibit C. AFRC/A1K recommends denial with respect to the applicant’s request for promotion to the grade of SSgt, E-5. After careful review of the documentation provided by the applicant, the military personnel data system (MilPDS), and the Automated Records Management System (ARMS), they confirmed she did not meet all eligibility criteria for promotion to SSgt. The applicant did not complete Airman Leadership School until Feb 11. Additionally, she did not have satisfactory participation from 21 Nov 11 to 20 Nov 13 and was released from active duty orders in 2011. A1K further states, a service member must meet the following criteria for promotion to SSgt; 12 months-time in grade (TIG), possession of a 5-skill level or a 3-skill level when 5-skill level does not exist in AFSC, completion of NCO Preparatory Course, the NCO Leadership School, the Airman Leadership School, or the NCO Orientation Course and be a satisfactory participant in accordance with AFI 36-2254V1, Reserve Personnel Participation. The service member must be recommended by the assigned supervisor and approved by the promotion authority. It is solely at the discretion of the assigned supervisor or designee to recommend promotion to the promotion authority when a service member has met the eligibility requirements for promotion to the next higher grade. A complete copy of the AFRC/A1K evaluation is at Exhibit D. The AFBCMR Medical Consultant recommends denial noting there is no evidence of an error or injustice. The Medical Consultant believes the reasoning for the applicant’s unfit decisions were based on her preceding four years of duty restrictions and the “fair” prognosis for a recovery. While the applicant’s profile restrictions were lifted on 4 Sep 13, it was believed by SAFPC to have been outweighed by the duration of her previous restrictions. Air Force policies mandate completion of an MEB when an individual has been mobility restricted for 12 months or more; or has been exempted from at least one Fitness Assessment criterion for 12 months due to a disqualifying medical condition. The applicant’s actual four years of profile documents have not been supplied to determine the medical reason why an MEB was not conducted much sooner. Nevertheless, the Medical Consultant opines, payment of the applicant, if not done, while undergoing the MEB process warrants consideration. The Medical Consultant further believes that the applicant could have also been found unfit based upon to her predisposition for acute exacerbations and risk for further deterioration of her knee under the rigors of the military environment. The applicant’s type of fracture also rendered her vulnerable for post-traumatic degenerative changes in the area of her previous fracture, which with repetitive high impact activities, only raises the likelihood of a future knee problem. A complete of copy of the AFBCMR Medical Consultant’s evaluation is at Exhibit E. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant argues she was improperly processed through the disability evaluation system (DES). Her disability processing was not done in accordance with Department of Defense (DOD) and Air Force Instructions (AFI) guidelines. She was in a state of limbo because in 2011-2012, her case was being processed through the legacy system and in 2013, processing was transferred to the new Integrated Disability Evaluation System (IDES) system. Her questions and concerns regarding the timeline of her DES processing have been ignored throughout this process. There is no evidence of four years of chronic pain, just two years of surgery, recovery and therapy while she continued to perform her duties in a full time active duty status. Her medical reports state her condition as good, stable or fair. She requests to be returned to duty in a full capacity with no restrictions or returned to duty in a limited assignment status for proper medical board processing, back pay, points and bonus recoupment. The applicant’s complete response, with attachments, is at Exhibit G. ADDITIONAL AIR FORCE EVALUATION: AFPC/DPFA recommends denial noting according SAF MEDCON Policy Guidelines this program is voluntary, and MEDCON eligibility requires a Line of Duty (LOD) determination and a finding by a credentialed military health care provider that the airman has an unresolved health condition requiring ongoing treatment. Furthermore, a service member not on MEDCON orders at the time of entry into the IDES may apply for MEDCON while processing through IDES, however the service member must submit an application. The service member must also provide an AF Form 469, Duty Limiting Condition Report, which reflects a duty limiting condition. The service member is required to submit MEDCON requests/application within 60 days of injury. In this case, the applicant failed to submit a MEDCON application, therefore, she is not eligible for MEDCON. The applicant has not provided any documentation showing an error by the government, or any administrative delays due to this issue. Based on their review of medical documentation via the medical case management system, they noted that as of 17 Dec 09 the applicant’s physical therapy was discontinued. She had a follow-up with orthopedics in Jan 10. In addition, the 13 Feb 10 medical review noted the applicant had no restrictions, and could resume activity as tolerated. On 9 May 11, the orthopedic surgeon also noted the applicant should be able to sprint 100 yards for personal safety. Further, per the surgeon, her injury does not preclude her from performing her duties in the Air Force; she was deployable from an orthopedic point of view, and should follow up on an as-needed basis only. The applicant would not have been eligible for MEDCON orders after physical therapy was discontinued on 17 Dec 09. The subsequent notes dated 13 Feb 10 and 9 May 11 constitute a return to duty. After reviewing the Command Man-day Allocation System (CMAS), which is used for, coordination of Title 10 MEDCON requests, there is no evidence the applicant submitted a MEDCON package. A review of the current MEDCON case management system did not reflect any evidence of a MEDCON requests or submission by the applicant. Additionally, there is no evidence or documentation highlighting an appeal by the applicant, or errors, mistakes or administrative delays pertaining to this case, which may have contributed to a delay or lack of submission request for MEDCON. A complete copy of the AFPC/DPFA evaluation is at Exhibit H. APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: The applicant reiterates she has submitted evidence showing her wrongful, improper processing through the IDES that resulted in her being wrongfully separated from military service. She should have received 18 months of active duty pay and allowances while undergoing the disability processing. She requests a thorough review of all the evidence to return her back to duty, with back pay, points and bonuses. The applicant’s complete response, with attachments, is at Exhibit J. 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. The applicant contends she was fit for duty and should have remained on active duty orders, returned to duty and promoted to the grade of staff sergeant (SSgt), E-5. We took notice of the applicant’s complete submission, to include the rebuttal responses, in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force offices of primary responsibility (OPR) 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 of injustice. While the applicant believes she was fit to be returned to duty it was determined that her condition could not endure the physical rigors of the military environment. Furthermore, there was no evidence that an error or injustice occurred during the disability processing. In regard to the portion of the applicant’s request for a promotion to SSgt, E-5, there was no evidence the applicant met the criteria for promotion to the grade of SSgt, E-5. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief. 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; 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-2014-03057 in Executive Session on 12 Nov 15, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence pertaining AFBCMR Docket Number BC-2014-03057 was considered: Exhibit A. DD Form 149, dated DD MMM YY, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, AFPC/DPFD, dated 25 Aug 14. Exhibit D. Memorandum, AFRC/A1K, dated 24 Oct 14. Exhibit E. AFBCMR Medical Consultant, dated 10 Feb 15. Exhibit F. Letter, SAF/MRBR, dated 23 Feb 15. Exhibit G. Letter, Applicant, dated 19 Mar 15, w/atchs. Exhibit H. Memorandum, AFPC/DPFA, dated 6 Oct 15. Exhibit I. Letter, SAF/MRBR, dated 9 Oct 15. Exhibit J. Letter, Applicant, dated 23 Oct 15, w/atchs.