RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-02662

 						COUNSEL:  NONE

						HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

He be granted a disability rating for his service connected medical conditions.     

APPLICANT CONTENDS THAT:

Prior to his enlistment in the Air National Guard (ANG), he served in the Army National Guard (ARNG).  He incurred injuries while on a deployment to Afghanistan while in the ARNG.  He did not receive a disability rating for his injuries.  

He was found unfit for continued military service by an Informal Physical Evaluation Board (IPEB).  He was not provided any explanation of the process and was not assigned a Physical Evaluation Board Liaison Officer (PEBLO).  

He provides a Department of Veterans Affairs (DVA) rating decision dated 17 September 2013 which reflects he was assigned a compensable rating of 80 percent effective 30 August 2012 for his service connected disabilities of Post-traumatic Stress Disorder (PTSD), tension headaches and Traumatic Brain Injury (TBI).  

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

STATEMENT OF FACTS:

On 26 May 2015, the applicant was placed on the Retired Reserve List in the grade of Technical Sergeant (TSgt, E-6).  

The applicant was a member of the ARNG when he completed a period of active duty service from 26 January 2007 to 26 June 2008.  His DD Form 214, Certificate of Release or Discharge from Active Duty, reflects he was deployed to Afghanistan and was released from active duty with a narrative reason for separation of, “Completion of Required Active Service.”  

According to the NGB Form 22, Report of Separation and Record of Service, the applicant enlisted in the ANG on 12 September 2009 in the grade of TSgt.  

In a memorandum dated 24 August 2014 to the Medical Evaluation Board (MEB)/Physical Evaluation Board (PEB), the applicant’s commander recommended he be discharged if found unable to perform his duties and deploy.  

On 6 September 2014, the applicant requested he enter the Disability Evaluation System (DES) and indicated he understood it was for a fitness determination only for a non-duty related medical condition.  

AF Form 469, Duty Limiting Condition Report, dated 9 September 2014, reflects he was found to have both duty and mobility restrictions through 9 September 2015.   The AF Form 469 states, “Member has been identified with a non-duty condition that may not meet retention standards in accordance with AFI 48-123, Medical Examinations and Standards, and must be processed through the Non-Duty Disability Evaluation System (NDDES) to continue his/her military service.”

According to the NGB/A1PS Fitness Determination memorandum dated 7 January 2015, the IPEB found the applicant unfit to perform the duties of his office, grade, rank or rating for his conditions of rotator cuff syndrome and chronic knee pain.  The memorandum states his commander indicated he is unable to fully function in his Primary Air Force Specialty Code (PAFSC) and recommended separation if unrestricted return to duty is not possible.  The IPEB noted there is no Line of Duty (LOD) determination for these conditions and proceeded with a Fitness for Duty Determination (FFD).  It also stated the applicant was deployed to Afghanistan in 2007 with the ARNG.  He reported symptoms of TBI/PTSD in 2012.  He was treated during deployment but did not require early return and did not report symptoms on his post deployment assessment or in the periodic health assessments.  He began treatment with the VA in 2012 and there is no evidence of significant duty or mobility impairment secondary to his TBI or PTSD; therefore, these conditions were not considered unfitting at the time.  The IPEB also noted several other conditions listed as potentially unfitting, but was provided no information to adjudicate the conditions.  

On 19 February 2015, the applicant concurred with the findings and elected not to have his case referred to the Formal PEB (FPEB).  He indicated he understood discharge proceedings would be initiated and that he would be afforded the opportunity to apply for a Reserve Component retirement (at age 60) in lieu of discharge if he was eligible to retire (15 or more years of satisfactory service).  

On 25 May 2015, the applicant was discharged from the ANG for physical disqualification in accordance with AFI 36-3209, Separation and Retirement Procedures for Air National Guard and Air Force Reserve Members.  

Per Reserve Order EK 2741, dated 12 March 2015, the applicant was placed on the Retired Reserve List effective 26 May 2015 in the grade of SSgt (SSgt, E-5).  In a letter dated 12 March 2015, ARPC/DPTT determined the applicant’s highest grade satisfactorily held was TSgt.   

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

AIR FORCE EVALUATION:

NGB/SG recommends denial.  The applicant was presumed fit for duty when he transferred to the ANG.  He disclosed his medical conditions in 2012; however, there is no medical documentation submitted to support any aggravation while serving in the ANG. 

The applicant transferred to the ANG in 2009.  There was no mention of any medical issues until 2012 when he annotated mental health and back issues on his periodic health assessment.  Based on the lack of medical documentation submitted, it is unclear if he was placed in a duty limiting condition in 2012.  In 2014, his medical unit submitted a FFD evaluation.  Additionally, PEBLOs are not assigned to FFD cases.   

The applicant is collecting a disability rating from the DVA.  His original claim for disability in 2013 included a mental health condition based on his exposure to “stressful situations” while deployed to Afghanistan.  The DVA records note he “did not have any complaints of treatment for or diagnosis of PTSD” per the DVA rating decision dated 16 September 2013.  He requested to re-open his case in 2014 and included knee and shoulder pain.  The DVA determined no service connection for the shoulder injury and rated his bilateral knee pain at 10 percent; however, the DVA reviews the entire military service and the applicant’s military service dates back to 1997.  The DVA functions under 38 U.S.C.; therefore, assigns disability ratings under a different standard than the military.

A complete copy of the NGB/SG 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 31 March 2016 for review and comment within 30 days (Exhibit D).  As of this date, no response has been received by this office.

ADDITIONAL AIR FORCE EVALUATION:  

The AFPC Disability Office agrees with the recommendation of NGB/SG to deny the request.  There is no indication an error or injustice occurred during the processing of his disability case.  

A complete copy of the AFPC Disability evaluation is at Exhibit E.  

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:  

Upon enlisting in the ANG in 2009, he presented his medical information contained in the ARNG files.  He was interviewed by the medical staff and his records were reviewed before he was   cleared for a six-year enlistment and assigned as a munitions handler in the ANG even though it was discussed he had been exposed to an Improvised Explosive Device (IED) blast and received injuries while in Afghanistan in 2007.

As time passed, it became harder to perform at 100 percent due to joint pain, knee joint instability, effects of PTSD, persistent migraines, numbness and tingling in his legs, lower back pain (degenerative arthritis) and shoulder pain.  His shop superintendent became aware of his disabilities and the fact he was receiving DVA compensation and directed him to the medical group so they would be aware of his situation.  In 2011, he was placed on a medical profile and was directed to check in monthly with the medical group to update them on his status.  Each month he was told his “packet” was being sent to NGB for review in the non-duty Disability Evaluation System (DES).  

In 2014, he was unable to go on an overseas deployment due to being on a medical profile and undergoing the non-duty DES process.  This was the second deployment he missed while in the ANG.  This annoyed his commander because he was “dead weight” holding a slot for training and deployment purposes.  He was undergoing counseling for PTSD and alcohol abuse and had multiple medication changes and dosage adjustments.  He was in no condition to deploy and asked not to be considered for promotion or deployment and to be removed from his supervisory duties.  He was never removed from his duties and as a result his performance declined.  He was ushered out the door following an IPEB for non-duty related injuries.  He did not know what the process was and was told it was a FFD to consider if he was eligible for reenlistment.  His shop chief gave him a copy of the FFD memorandum.  He was then informed by the Recruiting and Retention office that he was found unfit for duty and that he could retire since he had enough time in service.  He signed the forms for retirement believing he would obtain a DOD disability rating for his injuries since they were the reasons for his unfitness for duty.

In April 2015, he learned he would not be getting a disability rating because his medical conditions were not duty-related.  He did not understand since all his injuries were the result of his military service.  It was too late when he learned he was being processed through the wrong system.  He tried to initiate a request to have his FFD re-done and conducted through the Integrated DES (IDES); however, his request was denied since he had already signed the forms agreeing with the FFD.  

He requests a change in this determination based on the grounds of deception and misinformation.  His medical group processed his case, and others, through the non-duty DES instead of the IDES to avoid use of man-hours and extensive paperwork.  

He contacted the Inspector General (IG) who advised that he would contact the medical group commander and the staff judge advocate.  The medical group continued to stand by their response until it was discovered that many airmen had been and were still being processed through the IPEB and discharged for injuries that caused them to be unfit for deployment.  His situation occurred as a result of the poorly trained and unethical administrative staff in the medical group, specifically the Master Sergeant (MSgt, E-7) who was the noncommissioned officer in charge.  

The applicant’s complete submission, with attachments are at Exhibits G and H.

ADDITIONAL AIR FORCE EVALUATION:  

The BCMR Psychiatric Consultant finds insufficient evidence to warrant the desired change.  The rules for considering disability are different between the DVA and the military.  The DVA considers any and all injuries or illnesses that occurred within the time period from the beginning of military participation to the end.  If any association can be demonstrated, then there is an assessment of the severity and compensation is awarded.  The military assessment is done as a “snapshot” in time of the member’s fitness to do their job.  The DVA evaluation is ongoing and may change over time with the severity of the condition.  The Psychiatric Consultant applauds the applicant for going to the DVA for treatment and notes he has received compensation as well.    

The applicant transferred from the ARNG to the ANG in 2009 but did not admit to any on-going medical problems until 2012.  He was not seen for any mental health conditions until 2012.  At the time he was seen in 2012 there was no evidence in his work environment that he was not functioning, except for physical ailments.  He was working full-time as an assistant principal in a public school while doing his Reserve duty.  

In 2014, his command sent him for a FFD.  At the time of the fitness evaluation, he was in a non-duty status.  His command sent him to the IPEB for the purpose to determine his fitness for military service.  The applicant signed the memorandum on 6 September 2014 that he was aware that if the IPEB determined he had limitations, then it would determine if the limitations were so restrictive he could no longer perform his duties and would be discharged as unfit to do his job.  When he was notified that he was unfit due to his rotator cuff and chronic knee conditions, he was given the opportunity to go to the FPEB where the decision could be revisited.  He was also given the opportunity to consult with a legal advisor.  On 19 February 2015, he signed documentation to confirm his decision to not get a legal consultant or request the FPEB review his case.  Additionally, he was not found unfit for his PTSD condition because PTSD did not interfere with his ability to perform his duties.  For a condition to be unfitting it must have interfered with his ability to do his job.  He also worked full time in his civilian position and was getting along in the military with no notable disruptions in dealing with supervisors or peers.  

A complete copy of the BCMR Psychiatric Consultant’s evaluation is at Exhibit I.  

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:  

He did not seek medical attention for his back, wrists and headaches while in Afghanistan as there were no medical personnel other than the combat medic.  He attributes his back and wrist aggravation as a result of the time spent behind a .50 caliber machine gun for much of the deployment.  He was unaware of any psychiatric issues following his deployment.  

In July 2008, he went to the VA to get registered for care.   In 2012 he returned to the VA for care as he was having issues with his marriage, job and life.  His sleep was limited and he had frequent nightmares and pounding headaches.  He drank a lot of alcohol and abused drugs.  He did not get any care from the VA between 2008 and 2012 which is why he did not see what was happening to him mentally and physically.  He went to the VA and received assistance.  He was then told to update his unit so they could update his medical records and this is where the downward spiral began.  He updated his medical group and it was not long before his superintendent found out about it.  He was then placed on a profile and ostracized because of his physical and mental limitations.  He fell victim to misinformation upon being told he would not be able to deploy.  

Between 2012 and 2015 he was still being evaluated by the VA for his service connected injuries.  These same injuries caused him to be unfit for military service.  These same injuries decrease his productivity in his civilian job.  About a year ago, he was also prescribed Concerta to help him focus on his daily tasks as an assistant principal.  He was discharged for injuries sustained in the LOD and requests the Board revisit his medical situation and his case be processed through the IDES, like other disabled veterans with service connected disabilities.  

A complete copy of the applicant’s submission, with attachments, is at Exhibit K.  

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, to include his rebuttal response, and do not find it supports a determination he was improperly discharged from the ANG and placed on the Retired Reserve List.   While the applicant contends he incurred an injury in the LOD but was not processed through the Military DES, he has not provided substantial evidence showing he aggravated or incurred an unfitting medical condition while in a duty status with the ANG.  As pointed out by the Air Force OPRs, the applicant was presumed fit at the time of his enlistment in the ANG on 12 September 2009.  Based on the preponderance of the evidence, it appears the IPEB, which was convened as a result of the FFD for non-duty status medical conditions, was properly adjudicated and we found no evidence which would lead us to believe his separation was in error or contrary to the governing instructions.   The applicant also contends he was not assigned a PEBLO or counseled on the FFD process.  Although PEBLOs are not assigned to FFD cases (as noted by NGB/SG), the evidence is sufficient to find he was properly counseled and made aware his FFD was only for non-duty status medical conditions.  Furthermore, the evidence indicates the applicant declined his right to a formal hearing, concurred with the findings of the IPEB and requested he be placed on the Retired Reserve List.  The applicant also contends his FFD for non-duty status conditions was the result of the poorly trained and unethical actions of the medical group staff; however, other than his own uncorroborated assertions, he has provided no evidence to indicate this to be the case.   Therefore, we agree with the opinions and recommendations of the Air Force OPRs and the BCMR Psychiatric Consultant that the applicant has failed to sustain his burden of proof that he has been the victim of an error or injustice.  In view of the above and in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application.

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-2015-02662 in Executive Session on 6 October 2016 under the provisions of AFI 36-2603:

	 , Panel Chair
	 , Member
	 , Member

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 22 June 2015, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, NGB/SG, dated 11 March 2016.
	Exhibit D.  Letter, AFBCMR, dated 31 March 2016.
	Exhibit E.  Memorandum, AFPC Disability, dated 25 May 2016
	Exhibit F.  Letter, AFBCMR, dated 31 May 2016.
	Exhibit G.  Letter, Applicant, undated, w/atchs.
	Exhibit H.  Letter, Applicant, undated, w/atchs.
	Exhibit I.  Memorandum, BCMR Psychiatric Consultant, dated
			  15 August 2016.
	Exhibit J.  Letter, AFBCMR, dated 22 August 2016.
	Exhibit K.  Letter, Applicant, dated 30 August 2016, w/atch.

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.