RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-03844

 						COUNSEL:  NONE

						HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

His Discharge With Severance Pay (DWSP) from the Air National Guard (ANG) be changed to a medical retirement.  

APPLICANT CONTENDS THAT:

He was discharged due to his right knee injury as a result of a fall from a telephone pole.  He was DWSP; however, he should have been medically retired.  He has received a compensable disability rating of 40 percent from the Department of Veterans Affairs (DVA) for his right knee and lumbar spine conditions which are related to his fall while in service.

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

STATEMENT OF FACTS:

The applicant was discharged from the ANG on 4 December 2012 in the grade of Staff Sergeant (SSgt, E-5).  

According to the AF Form 356, Findings and Recommended Disposition of USAF Physical Evaluation Board, dated 28 August 2012, the Informal Physical Evaluation Board (IPEB) recommended the applicant be DWSP with a 10 percent compensable disability rating for his unfitting condition of chronic quadriceps tendon strain status post partial rupture of the quadriceps tendon status post debridement and repair with residual scar.  The applicant’s condition of tinnitus was determined not compensable or ratable at the time.    

On 7 September 2012, the applicant concurred with the findings and recommendations of the IPEB.  

In a letter dated 6 November 2012, the Decision Review Officer Disability Evaluation System (DES) Pilot Team, VA Regional Office, Baltimore, MD informed the Air Force PEB that the applicant’s request for reconsideration of the proposed 10 percent rating was reviewed.  The 10 percent evaluation was confirmed and it was determined there was no error in the prior decision.  

On 21 November 2012, the Secretary of the Air Force directed the applicant be separated for physical disability with severance pay.

The applicant’s NGB Form 22, Report of Separation and Record of Service, reflects the applicant was discharged on 4 December 2012 in the grade of SSgt with authority and reason for separation of AFI 36-3212, Physical Evaluation for Retirement and Separation, Chapter 8, Evaluation of Air Reserve Component (ARC) Members.  

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, D and E.    

AIR FORCE EVALUATION:

NGB/A1PS recommends denial.  The applicant has not provided any supporting documents to claim an injustice or that the discharge order was erroneous.  The determination of the DWSP was made by AFPC and A1PS does not have copies of the documents provided by AFPC.  Once the applicant provides the necessary documents, the case can be routed to AFPC PEB for an advisory.  

A complete copy of the NGB/A1PS evaluation is at Exhibit C.

AFPC Disability recommends denial.  There is no indication an error or injustice occurred during the processing of his Medical Evaluation Board (MEB) disability case.  The applicant claims his lumbar spine condition was caused by the fall off a telephone pole while on active duty orders; however, the Line of Duty (LOD) in the PEB case file indicates only the right knee was injured.  He did not provide documentation to support his claim and they are unable to find where a lumbar spine injury was in the LOD or that it was unfitting.  

Under 10 U.S.C., PEBs must determine if a member’s condition found in the LOD renders them unfit for continued military service relating to their office, grade, rank or rating.  The fact that a person may have other medical conditions does not mean the conditions are necessarily unfitting for continued military service.  To be unfitting, the condition must be such that it alone precludes the member from fulfilling their military duties.  Disability processing is based on a “snapshot in time” and does not take into account any exacerbations or progressions of a disability that may have occurred following the service member’s release from active duty and is not subject to a rating change after the service member has separated.

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

The BCMR IMA Medical Consultant recommends denial.  The applicant claims both the right knee and lumbar spine were service related injuries resulting from the fall accident.  A review of the clinical notes, MEB report, LOD determination and other administrative documentation was conducted and there was no indication of a lumbar spine injury.  The January 2012 DVA rating also did not mention a disability rating for a service connected lumbar spine injury and there is no documentation of any in the LOD lumbar spine injury or disability during military service.

The Medical Consultant also notes an Impartial Review Request form signed by the applicant on 8 March 2012 where he acknowledged the contents of the MEB and the narrative summary.  The applicant’s decision to decline an impartial review of the MEB for inaccuracies acknowledges the completeness of the MEB process and confirms the list of service connected health conditions was complete.  More importantly, there was no mention of a lumbar spine injury in any documentation provided for this medical review.  Therefore, there is no error or injustice in a denial for retrospective consideration of a MEB for lumbar spine injury.

Addressing the applicant’s implicit request for a medical retirement, the military Integrated DES (IDES), established to maintain a fit and vital fighting force, can by law, under 10 U.S.C., only offer compensation for those service incurred diseases or injuries which specifically renders a member unfit for continued military service and were the cause of career termination; and then only for the degree of impairment present at the time of separation and not based on future occurrences.  However, operating under a different set of laws, 38 U.S.C., the DVA is authorized to offer compensation for any medical condition with an established nexus with military service, without regard to its proven or demonstrated impact upon a member’s retention potential, fitness to serve or the narrative reason for release from military service.  The DVA is also empowered to conduct periodic reevaluations for the purpose of adjusting the disability rating award as the level of impairment from a given medical condition may vary over the lifetime of the veteran.

A complete copy of the BCMR IMA Medical Consultant’s evaluation is at Exhibit E.  

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 14 July 2016 for review and comment within 30 days (Exhibit F).  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 and do not find that it supports a determination that the applicant was improperly DWSP from the ANG.  While the applicant contends his MEB did not consider his lumbar spine injury, he has not provided evidence showing it was an unfitting medical condition at the time he was processed through the military IDES.  Based on the preponderance of the evidence, it appears the applicant’s DWSP was properly adjudicated and we found no evidence which would lead us to believe that his separation was in error or contrary to the governing Air Force instructions.  Therefore, we agree with the opinions and recommendations of the Air Force offices of primary responsibility (OPRs) and adopt the rationale expressed as the basis for our conclusion 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-2015-03844 in Executive Session on 1 November 2016 under the provisions of AFI 36-2603:

 , Panel Chair
 , Member
 , Member

The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-03844 was considered:

	Exhibit A.  DD Form 149, dated 4 September 2015, w/atch.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, NGB/A1PS, dated 31 March 2016.
	Exhibit D.  Memorandum, AFPC Disability, dated 20 June 2016.
	Exhibit E.  Memorandum, BCMR IMA Medical Consultant, dated
			  22 June 2016.
	Exhibit F.  Letter, AFBCMR, dated 14 July 2016.

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.