RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-02643

						COUNSEL:  	

						HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

1.  Her Line of Duty (LOD) determination of Existed Prior to Service (EPTS)-LOD NA for Neuroforaminal Narrowing and Idiopathic Hypersomnia, be changed to in the Line of Duty (ILOD).

2.  She receive disability processing via a Medical Evaluation Board and Physical Evaluation Board (PEB) for her medical conditions.

3.  She receive medical continuation (MEDCON) orders for the period 1 August 2011 to 30 September 2012.

4.  She receive a disability retirement.

APPLICANT CONTENDS THAT:

While on active duty she was injured in a motor vehicle accident in 2008.  She was placed on medical continuation (MEDCON) orders without undergoing a full required Medical Evaluation Board (MEB) or Physical Evaluation Board (PEB).

Her Neuroforaminal Narrowing and Idiopathic Hypersomnia, were erroneously found to be EPTS instead of LOD. 

When she entered active duty she was healthy and able to fully engage in employment based on the presumption of “Sound Condition” in accordance with the Department of Defense Instruction (DODI) 1332.38, Physical Disability Evaluation.

At the time of her separation from active duty she was unfit under the meaning of DODI 1332.38 and Air Force Instruction (AFI) 32-3612 (sic), Physical Evaluation for Retention, Retirement, and Separation.

All of her medical conditions were not considered for her LOD determinations. 

The decision to return her to duty was not made by the appropriate office.

Per Air Force regulations, service members with pending LODs are to be maintained on active duty until completion of their LOD determination.

Per Air Force regulations, service members pending disability processing are entitled to pay and allowances.

On 1 August 2011, she was awarded a 100 percent disability rating from the Department of Veterans Affairs (DVA) for the injuries she incurred in the line of duty.

As of 1 August 2013, the Social Security Administration (SS) found her unable to engage in substantially gainful activity. 

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

STATEMENT OF FACTS:

On 1 April 1977, the applicant commenced her enlistment with the Tennessee Air National Guard (TNANG).  On 23 September 1982, she was commissioned as a second lieutenant in the TNANG.  

On 2 July 1997, the applicant was notified of eligibility for Retired Pay.  As of 31 March 1997 she had accrued 2112 points.

On 31 December 1998, she was released from the TNANG and transferred to Air Force Reserve effective 1 January 1999.

The applicant served in an active duty status in support Operation ENDURING FREEDOM from 2 June 2002 to 31 December 2002.

The applicant served on active duty in support Operation ENDURING FREEDOM from 1 January 2003 to 10 January 2005.

On 7 January 2005, an LOD determination was initiated to evaluate the applicant’s low back pain.  On 10 March 2005, it was recommended her chronic back pain was incurred ILOD.

The applicant served on active duty in support Operation IRAQI FREEDOM from 20 May 2005 to 31 July 2011.

On 10 January 2011, an LOD determination was initiated for Idiopathic Hypersomnia.  On 28 January 2011, it was recommended her Idiopathic Hypersomnia was incurred ILOD.

On 12 January 2011, an LOD determination was initiated to evaluate the applicant’s back pain involving cervical, thoracic and lumbar spine.  On 28 January 2011, an ILOD finding was recommended for her back pain involving cervical, thoracic and lumbar spine.  On 10 June 2011, AFRC/CV found the applicant’s condition existed prior to service LOD not applicable (EPTS-LOD NA).

On 16 January 2011, an LOD determination was initiated for Idiopathic Hypersomina with a recommendation for ILOD.  On 18 March 2011, the legal officer nonconcurred with the recommendation and recommended a finding of EPTS-LOD NA.  On 25 March 2011, the LOD was forwarded to the AFRC Board with a recommendation of EPTS-LOD NA.  On 5 July 2011, the AFRC found the applicant’s Idiopathic Hypersomina EPTS-LOD NA.

On 31 October 2011, the applicant was notified that her Mandatory Separation Date (MSD) expired on 1 October 2012.

On 30 September 2012, the applicant was released from her, then, current assignment and transferred to the Retired Reserve to await retired pay upon attaining age 60 (17 February 2018).

On 3 Oct 13, the AFRC found the applicant’s carpel tunnel syndrome to be EPTS-LOD NA.

The remaining relevant facts pertaining to this application are contained in the memoranda prepared by the Air Force offices of primary responsibility (OPR), which is attached at Exhibits C and D.    

AIR FORCE EVALUATION:

AFRC/SGO recommends denial indicating there is no evidence of an error or an injustice.  SGO further indicates the applicant did not exhaust all her administrative remedies.  She could have requested a reinvestigation of the LOD findings.  Per AFI 36-2910, Line of Duty (Misconduct) Determinations, she had 45 days to request a reinvestigation.

The applicant, while on continuous active duty, underwent four LODDs for the following medical conditions; torn labrum right shoulder, torn labrum left shoulder, neuroforaminal narrowing, and idiopathic hypersomnia.  The shoulder injuries were found to be ILOD and the neuroforaminal narrowing, and idiopathic hypersomnia were found to be EPTS – LOD NA.

The applicant’s finding of fit for duty by AFRC/SGP was correct. While the applicant had deployment issues, the mobility limitations alone were not the sole determining factor to be used when assessing fitness for military service.  The applicant’s medical conditions did not interfere with her ability to perform the duties of her office, grade, rank or rating.

Regarding the applicant’s assertion that AFRC/SGP was not the proper authority and the determination should have been made by AFPC/DPAMM, the applicant was an Air Force Reserve Individual Mobilization Augmentee (IMA) and adjudication of all Assignment Limitation Code (ALC) determinations on all Reserve members resides with AFRC/SGP.

The applicant alleges that all of her medical conditions were not given consideration in the LOD process, in fact, all her unfitting conditions were considered in the adjudication of her case and the return to duty disposition.  Since the applicant was found fit and returned to duty she was precluded from AF DES consideration and no longer entitled to continuation on active duty orders.  

The applicant also alleges that proper procedures were not followed during the LOD and MEB process.  All of her LODDs were finalized by AFI mandated approving authority, AFRC/CV.  The applicant’s case was submitted via the automated system in place at that time and recognized as part of the MEB process.   

A complete copy of the AFRC/SGO evaluation, with attachments, is at Exhibit C.

AFBCMR Medical Consultant recommends denial for a medical retirement indicating there is no evidence of an error or an injustice, but recommends a finding of ILOD for her back condition.  The applicant contends she was inappropriately separated from active duty.  The applicant was involved in a motor vehicle accident while on active duty orders.   Except for the results of a MRI scan conducted in 2008, the Medical Consultant has not been supplied the details of any residual impairments warranting separation as a result.  The applicant was on active duty orders at the time of the MVA.  There is no evidence of misconduct or absent without leave (AWOL) at the time of the accident.  A Medical Evaluation Board (MEB) Narrative Summary discussed several medical conditions, with particular emphasis on her shoulder impairments.  

Under procedures endorsed by the AF/SG, medical facilities are able to conduct a pre-MEB procedure referred to as a Deployment Availability Working Group, or DAWG, review.  Following such a review, the AFRC/SG then has the authority to refer the case to a Physical Evaluation Board or return a Reserve component member to duty with an ALC-C1 or C2; individuals who are selectively deployable if determined that the medical condition does not significantly interfere with duty and the condition can be cared for without need for tertiary level of care.  Individuals assigned an ALC-C3 are generally not deployable, unless special skills are needed with the approval of the theatre commander.  In the case under review, the applicant was assigned an ALC-C2 and was retained.

While on continuous active duty orders the applicant’s back condition was erroneously found EPTS-LOD NA.  The clinical evidence of record does indicate the applicant had a back ailment since 1990.  However, there was also an injury related to lifting or off-loading military gear in November 2004 for which she, again, presented with low back pain.  This episode was found to be ILOD.  There appears to be a resurgence of low back pain in 2008 likely related to the MVA, as noted by the MRI scan ordered.  Low back pain, again, became an issue during evaluations in CY 2011.  The author of the applicant’s MEB conceded the possibility that the findings on the applicant’s MRI could have been congenital [to be interpreted as being the result of expected natural progression of the aging or degenerative process and with no relationship with military service].  However, the MEB author also believed that it was the applicant’s back ailment that interfered with her functioning and restricted deployability [no lifting greater than 40 pounds], more so than her shoulder ailments.  

Moreover, this reviewer noted that it was the applicant’s final AF Form 469, initiated on 3 December 2010 and Coded “37,” that included new restrictions of “no time running” and “no repetitive flexion at the waist.”  That leads this reviewer to conclude the applicant’s back ailment should have been included in the discussion requiring a fit/unfit decision via MEB/PEB process [per AF Form 469].  When collectively considering the applicant’s years of active service and the commentary by the author of the MEB, this reviewer opines the applicant’s back ailment could have been found disqualifying; and if so, Title 10, U.S.C., Section 1207a, could apply [even if believed to have Existed Prior to Service]; particularly, since this reviewer could not determine through “clear and unmistakable” evidence that the Military Department did not permanently aggravate the applicant’s back ailment.

Counsel contends the processing of the applicant’s LODDs were initiated by inappropriate or unauthorized personnel.  Counsel’s assertions are correct, however, the LODDs were finalized by the appropriate AFRC senior official(s).  This does not negate the final decisions made.  

Counsel further believes the applicant’s finding of not in the line of duty for the applicant’s Idiopathic Hypersomina, was erroneous.  The Medical Consultant notes the applicant’s Idiopathic Hypersomnia, and the unrevealing clinical work-up of the condition, and opines this condition did not rise to the threshold for an unfit finding nor medical disqualification for service.  Although imbedded in one of the VA’s diagnostic rating decisions [“Fibromyalgia with Idiopathic Hypersomnia (also claimed as Multiple Joint Pain, Hypertonicity, and Connective Tissue Disorder”], this reviewer opines Idiopathic Hypersomnia would not have been a cause for career termination in an otherwise highly functioning MSC officer; and, thus, would not contribute to the underlying argument for a medical retirement.  

Counsel further asserts the applicant was healthy, and presumed fit, when she entered active duty and was able to fully engage in work.  However, she was awarded a 100 percent rating by the DVA, and the Social Security Administration found her unable to engage in substantially gainful activity.  However, had she been an active duty member, her disabilities would have resulted in a military disability retirement.  The Medical Consultant is familiar with the legend allegations of avoidance of Total disability rating determinations by Military Departments, under the legacy Disability Evaluation System.  Thus, this reviewer and the Board may yet struggle with how an individual can be found 100 percent disabled, effective the day after release from active duty, yet be found fit by the Military Department at or about the same date.  Conversely, however, the applicant’s military performance history, through CY 2011, [an important gauge for fitness] is also incongruent with her being characterized Totally disabled at the time of her release from active service.  Although the mere quantity of the applicant’s medical conditions and disability ratings nearly “shocks the conscience,” the overwhelming majority of these have not been sufficiently proven, through documented service medical evidence, to have interfered with the applicant’s military duties to the extent that warranted career termination.

Counsel has provided several policy extracts that indicate Reserve Component members with medical impairments, who incurred or aggravated an injury, illness, or disease in the LOD, will be retained on active duty orders until the member is determined fit or separated.  The Medical Consultant opines the applicant did undergo a DAWG review for her shoulder ailments and several other conditions that were not considered disqualifying; although the back ailment appears to have been dropped from the discussion.  Although not ultimately referred to a Physical Evaluation Board, the Medical Consultant opines established Air Force policies were followed with this specific regard.  

Neither the author of the applicant’s MEB Narrative Summary, nor this reviewer, had evidence from sources other than that in the supplied service treatment record, to indicate the applicant was totally disabled at the time of her release from active orders in July 2011.  Moreover, since the applicant had an established Mandatory Separation Date (MSD) of 30 September 2012, she would have been presumed fit if an MEB Narrative Summary was dictated at any time between 30 September 2011 and 30 September 2012 [so-called presumptive period].  

The applicant’s counsel also challenges the authority of AFRC/SG to issue ALC Codes and states this should fall under the purview of HQ AFPC/DPANM, Medical Standards Division.  HQ AFRC/SG and SGP are empowered to make fitness determinations for Reserve component members and authorize retention of members using the Air Force ALC process.  Should the Board determine the applicant was terminated improperly from active duty orders without a valid basis in July 2011, was not referred to a full MEB for all of her conditions, or was deprived of a further extension on active duty orders beyond July 2011, be assured that further retention for any significant period beyond July 2011 would have placed the applicant squarely within the presumptive period, beginning on September 30 2011; since the applicant’s MSD was 30 September 2012.  Specifically, she would have been Presumed Fit under DoDI 1332.38, Physical Disability Evaluation, Enclosure 3, paragraph E3.P3.5 [and likely its contemporary, DoDI 1332.18, Disability Evaluation System].

Finally, Counsel states the applicant was retired for length of service from the Air Force Reserve on 29 August 2013.  The supplied evidence reflects that the applicant was transferred to the Reserve Retired List effective 30 September 2012.  The Medical Consultant is unaware if the applicant was granted some type of waiver for additional service time.

A complete copy of the AFBCMR Medical Consultant’s evaluation is at Exhibit D.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 22 September 2016, for review and comment within 30 days (Exhibit E).  As of this date, no response has been received by this office.

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 opinion and recommendation of AFRC/SGO and adopt its rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  While we note the AFBCMR Medical Consultant recommends a finding of in the line of duty (ILOD) for her back condition, we were not persuaded the applicant’s medical condition was not properly processed through disability evaluation system.  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-2015-02643 in Executive Session on 17 November 2016, under the provisions of AFI 36-2603:

		, Panel Chair
		, Member
		, Member

The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-02643 was considered:

	Exhibit A.  DD Form 149, dated 24 Aug 14, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFRC/SGO, dated 6 Jun 16, w/atchs.
	Exhibit D.  Memorandum, AFBCR Medical Consultant, 
  dated 21 Sep 16.
Exhibit E.  Letter, SAF/MRBR, dated 22 Sep 16.

Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified that a quorum was present at the Board's review and deliberations, and that the foregoing is a true and complete record of the Board's proceedings in the above entitled matter.