RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-04914

 						COUNSEL:  NONE

						HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

He be granted a medical retirement.  

APPLICANT CONTENDS THAT:

The Department of Veterans Affairs (DVA) awarded him a compensable disability rating of 80 percent for his medical conditions incurred while in service.  However, the Air Force separated him under the Reduction in Force (RIF) program.  

He served honorably for 13 years, 8 months and 8 days of active duty.  During this time, he developed several medical conditions for which the DVA granted him an 80 percent rating.  

Before his separation from active duty, the Air Force conducted an initial Medical Evaluation Board (MEB) and sent the information to AFPC for determination.  He was determined worldwide deployable and was returned to full duty.  This was based on his ability to run the required 100 yards.  After his separation, he discovered all of the pertinent information in his case was not included.  The specialist who reviewed his case rendered him non-deployable because he could not run the 100 yards.  This omission was identified and his primary care provider updated his profile.  In correspondence with AFPC Medical Standards, they advised another board should be conducted.  However, it was not accomplished.

The profile affected his reenlistment eligibility.  In a letter to his Congressman, the Air Force stated he could continue his service in the National Guard or Air Force Reserve; however, his DD Form 214, Certificate of Release or Discharge from Active Duty, reflects otherwise as his Reentry (RE) code of “4K” indicates he was medically disqualified from military service and does not allow him to reenlist.  

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

STATEMENT OF FACTS:

The applicant entered the entered the Regular Air Force on 24 May 2001.  

AF Form 469, Duty Limiting Condition, dated 18 May 2010, reflects the applicant was placed on duty restrictions through 9 June 2010 and was restricted from performing repetitive high impact activities to lower extremities for more than one half mile.  

AF Form 469 dated 9 June 2010, reflects the applicant was placed on duty restrictions through 8 August 2010 and was restricted from performing repetitive high impact activities to lower extremities for more than one half mile.  

AF Form 469 dated 12 September 2011, reflects the applicant was placed on duty and mobility restrictions through 31 December 2011 and restricted from repetitive jumping, prolonged pressure and weight bearing, bending of lower extremities and restricted from running more than 100 yards, walking more than 1500 yards, and performing push-ups and sit-ups.  

AF Form 469 dated 18 January 2012, reflects the applicant was placed on duty restrictions through 30 April 2012 and restricted from repetitive jumping, running for more than 1.5 miles and walking more than 1 mile.  

AF Form 469 dated 6 November 2012, reflects the applicant was placed on duty restrictions through 31 December 2012 and restricted from performing sit-ups, running greater than 100 yards, high impact activities to lower extremities, push-ups and walking more than one quarter mile.  

AF Form 469 dated 25 February 2013, reflects the applicant was placed on duty restrictions through 15 May 2013 and restricted from running greater than 100 yards, walking greater than three quarters of a mile and high impact activities to the lower extremities.  

AF Form 469 dated 23 May 2013, reflects the applicant was placed on duty and mobility restrictions through 23 August 2013.  The applicant was not cleared to perform the Fitness Assessment (FA) components of the 1.5 mile run and sit-ups.  He was also restricted from running greater than 100 yards and performing any high impact activities to upper and lower extremities.  

AF Form 469 dated 14 May 2014, reflects he was placed on duty and mobility restrictions through 14 November 2014.  The applicant was not cleared to test on the 1.5 mile run, sit-ups or 2 kilometer walk.  The applicant was also restricted from running more than 100 yards or walking greater than one half mile.  

In a memorandum to the 1st Special Operations Medical Dental Squadron (1 SOMDSS) dated 5 September 2014, his commander noted the applicant had worsening back and bilateral foot pain for about four years.  His foot pain started four years ago after bunion surgery on both feet.  His lower back pain started during his 2010 deployment to Iraq where he was injured while performing tasks.  This condition limited his ability to do all physical FA components, deploy, go on Temporary Duty (TDY) assignments and complete load bearing tasks.  The applicant performed convoy duty during a deployment in 2010 with these conditions and never missed a duty day for these conditions.  It was the opinion of his commander that he be considered for a medical separation or retirement due to his conditions.  

According to an undated Narrative Summary (NARSUM), the applicant was diagnosed with chronic back/neck pain which requires ongoing duty or deployment restrictions for over a year.  It stated the applicant was able to perform his daily work activities and had fitness limitations in running and high impact activities (feet and back) as well as sit-up restrictions due to his back.  He denied any daily work problems to his primary care manager as his job did not require running on a regular basis.  Despite no changes in his reported foot pain symptoms for over a year, his civilian podiatrist recommended to limit his walking.  Even with the new recommendation, it would not limit his daily activities in his job as he does not routinely walk more than one half mile at a time to complete his activities.  Prognosis stated that the applicant may require evaluation for IRILO in that he had seen specialty care for his back pain more than annually.  It was the physician’s opinion that the applicant’s symptoms did not support the need for a full MEB.   

The RILO Cover Sheet/Checklist dated 5 September 2014, reflects the Deployment Availability Working Group (DAWG) recommended the applicant be considered for a full MEB.  

On 8 September 2014, AFPC/DPANM non-concurred with the recommendation of the DAWG that the applicant be considered for a full MEB and returned the applicant to duty in accordance with AFI 41-210, TRICARE Operations and Patient Administration, paragraph 4.53.1.2 and AF/SG policy.  DPANM stated the applicant appeared to meet all deployment criteria in AFI 48-123, Medical Examinations and Standards, and was able to perform the duties of his Air Force Special Code (AFSC).  The applicant was returned with no assignment limitation code and considered fully worldwide qualified (WWQ) and deployable.  

In a letter to his Congressman dated 2 October 2014, SAF/LL stated the applicant’s unit submitted his case to AFPC Medical Standards with a recommendation for a MEB.  On 8 September 2014, the applicant was returned to duty with a finding that the applicant is not entitled to a full MEB as he was able to meet all deployment criteria in AFI 48-123 and AF/SG policy and was considered fully WWQ and deployable.  It further stated the Secretary of the Air Force authorized the use of an Enlisted Retention Board (ERB) under 10 U.S.C. § 1169 in order to meet authorized end-strength.  The board had the task of identifying airmen in overage specialties with the best records that demonstrated the ability to assume greater responsibility as well as breadth of experience and other qualities that would benefit the Air Force.  The board convened on 16 June 2014 considered the applicant’s record but did not select him for retention.  As such, a mandatory Date of Separation (DOS) of 31 January 2015 was established.  Service members with six or more years of Total Active Federal Military Service as of 31 January 2015 separated by the ERB may receive involuntary separation pay.   The letter also stated should the applicant wish to continue his service, the Air National Guard or Air Force Reserve were possible options.  

On 31 January 2015, the applicant was released from active duty with a narrative reason for separation of “Reduction in Force” and Reentry (RE) Code “4K” which denotes “Medically Disqualified for Continued Service or Pending Evaluation by MEB/PEB.”  He was credited with 13 years, 8 months and 7 days of active duty service.

According to the DVA rating decision dated 11 June 2015, the applicant was awarded a combined rating of 70 percent for service connected disabilities effective 31 January 2015 for his medical conditions to include tinnitus (10 percent), lumbar radiculopathy, femoral nerve, left lower extremity (10 percent), strain, cervical spine (10 percent), residuals, status-post tear with arthroscopic Bankart repair, right shoulder (10 percent), carpal tunnel syndrome, right upper extremity (10 percent), carpal tunnel syndrome, left upper extremity (10 percent), left shoulder strain (10 percent), tendonitis right wrist (10 percent), lumbar radiculopathy, sciatic nerve and left lower extremity (10 percent).  The DVA rating decision noted that the percentages of the assigned conditions may not always add up to the combined rating evaluation as the individual ratings are not added but instead is based on the combined rating table which considers the effect from the most serious to the least serious conditions.  

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 and F.    

AIR FORCE EVALUATION:

AFPC Medical Retention Standards recommends denial but states that further review and possible relief could be granted if the applicant can show evidence an AF Form 469 was issued stating he could not run even 100 yards and a statement from his Military Treatment Facility (MTF) that this was expected to be a long term restriction which existed prior to his separation.

An initial RILO pertaining to the applicant’s medical conditions was presented to AFPC/DP2NP in September 2014.  After reviewing the entirety of the package that was submitted which included the consultation with the civilian podiatrist, the applicant was returned to duty.  First and foremost, although the AF Form 469 indicated he could not run greater than 100 yards or walk greater than one half mile, there were no other restrictions listed.  The medical narrative included in his package clearly indicated he would be able to complete all the duties of his Air Force Specialty Code (AFSC).  Additionally, although the AF Form 469 was marked as a mobility restriction, there were no limitations indicated that would support the applicant’s inability to deploy and in fact the only reason this was indicated on the form was due to his assignment availability code (AAC) 37 which is required for all members who present a RILO.  The medical narrative submitted also stated he would be able to do his job and be deployable.  The provider also noted the applicant’s condition did not warrant a full MEB.  While the applicant claims he had an AF Form 469 in September 2014 which limited him from running even 100 yards based on the evaluation from a civilian podiatrist, this documentation was not presented in the RILO case and was not presented by the applicant in his package he submitted to request review of his case.  It is likely AFPC/DP2NP would have ordered a full MEB if this information was included.  However, even if a full MEB was ordered, it is not a reasonable conclusion that the applicant would have been given a medical retirement.  The VA disability rating is not the same as the rating that is used to determine medical retirement versus medical separation from the military.  This rating is based only on the conditions that would render a member unfit for continued service rather than all claimed conditions as with the VA rating.  Based on the enclosed documentation from the applicant, the conditions for which he would have been found unfit for military service would not have rendered a military rating greater than 30 percent and he would therefore have been medically discharged rather than medically retired.  

A complete copy of the AFPC Medical Retention Standards evaluation, with attachments, is at Exhibit C.  

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

He provides new documentation to support his claim he should have been medically retired.  His DVA rating decision dated 25 January 2016 raised his rating for disability compensation to 90 percent for his myriad of service connected disabilities.  His AF Form 469, signed by his commander on 21 November 2014 reflects he was mobility restricted which means he could not deploy. He also provides a letter dated 11 August 2014 signed by his podiatrist that states “limit walking and weight bearing to half mile a day, indefinitely.” This means there was no future date he could predict when he would be fully mobility qualified.  It is reasonable to conclude that he should have been given a full MEB before he was separated.  

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

ADDITIONAL AIR FORCE EVALUATION:

The BCMR Medical Consultant recommends denial of the applicant’s request to supplant his discharge with a medical retirement.  The applicant is correct in the assertion he should have been confronted with a MEB, or at least a DAWG review, far in advance of his date of separation.   What brings some element of disingenuousness is the fact that the applicant’s inclusion in the RIF appears to, at least in part, have been related to his quality force and physical fitness limitations.  However, the Medical Consultant also agrees with the assessment of AFPC Medical Standards that even if a full MEB had been ordered, it is not a reasonable conclusion that the applicant would have been given a medical retirement.   When considering that the applicant received or should have received a MEB and referral to a Physical Evaluation Board (PEB), the applicant is advised that despite disability ratings he received from the DVA, only those ratings assigned to the unfitting conditions, namely his back and feet, would be assigned ratings in reaching a military final disposition.  Thus, the Military Department would have assigned a 10 percent rating for his lumbar degenerative disc disease and 0 percent ratings for his knee and foot ailments; thus falling short of the 30 percent threshold for retirement eligibility. The Medical Consultant noted the applicant’s reported recurrence of left thigh pain, which was attributed to a possible radiculopathy, rated at 10 percent.  However, the Medical Consultant does take issue with possible pyramiding disability ratings by the assignment of two separate 10 percent ratings under two different neurologic Veterans Administration Schedule for Rating Disabilities (VASRD) codes for a singular left lower extremity.  Nevertheless, the service evidence fails to suggest an impediment to duty or worldwide qualification due to radiculopathy, tinnitus, cervical spine strain, residuals of right shoulder arthroscopic Bankart repair, carpal tunnel syndrome right upper extremity, carpal tunnel syndrome left upper extremity, left shoulder strain and tendonitis right wrist.  
 
Addressing the applicant’s desire for a medical retirement, the military Disability Evaluation System (DES), 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 rendered a member unfit for continued active service and were the cause for career termination; and then only for the degree of impairment present at the time of separation and not based on future progression of disease or injury.   According to DODI 1332.18, Disability Evaluation System, dated 5 August 2014, “A service member may also be considered unfit when the evidence establishes that (1) the member’s disability represents a decided medical risk to the health of the member or to the welfare or safety of other members; or (2) the member’s disability imposes unreasonable requirements on the military to maintain or protect the service member.”  With respect to the evidentiary standard for determining unfitness because of disability, under DODI 1332.18, The Secretary of the Military Department concerned must cite objective evidence in the record, as distinguished from personal opinion, speculation or conjecture of fitness cases.  The Secretary of the Military Department concerned will determine fitness or unfitness for military service on the basis of the preponderance of objective evidence in the record.  Even though the applicant’s medical file is replete with AF Forms 469, there appears to have been a deliberate avoidance of checking code “37” along with relative short-term dates of expiration over an extended period, creating a perception of avoidance of vulnerability for medical discharge.  

Operating under a different set of laws, 38 U.S.C., with a different purpose, the DVA is authorized to offer compensation for any medical condition determined service incurred, without regard to and independent of its demonstrated or proven impact upon a service member’s retainability, fitness to serve, or the narrative reason for separation.  This is the reason why an individual can be found unfit for military service for one reason and yet sometime thereafter receive a compensation rating from the DVA for medical conditions that were service connected but not proven militarily unfitting at the time of release from military service.  

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

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

A copy of the additional Air Force evaluation was forwarded to the applicant on 11 February 2017 for review and comment within 30 days (Exhibit G).  As of this date, no response has been received by this office.

ADDITIONAL AIR FORCE EVALUATION:

AFPC/DPFD states if the applicant was found unfit, the recommendations and findings of the PEB would have been a Discharge With Severance Pay (DWSP) at 20 percent in accordance with his DVA Compensation and Pension evaluation ratings for the conditions which he claims he should have had an MEB.  

A complete copy of the AFPC/DPFD e-mail, with attachment, is at Exhibit H.

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

A copy of the additional Air Force evaluation was forwarded to the applicant on 5 April 2017 for review and comment within 30 days (Exhibit I).  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 to warrant granting the requested relief.   We took notice of the applicant’s complete submission, to include his rebuttal response, in judging the merits of the case and do not find that it supports a determination that he should have been medically retired.   The applicant argues the DVA awarded him a compensable rating of 80 percent for his service connected disabilities and therefore he should have been medically retired.  However, as pointed out by the BCMR Medical Consultant, the Military Department, under  10 U.S.C., can only offer compensation for those service incurred diseases or injuries which specifically rendered a member unfit for continued active service and were the cause for career termination; and then only for the degree of impairment present at the time of separation and not based on future progression of disease or injury.  Operating under 38 U.S.C., the DVA is authorized to offer compensation for any medical condition determined service incurred, without regard to the service member’s fitness to serve.  In this respect, it is our opinion the applicant has not provided substantial evidence to show he had an unfitting medical condition at the time of his separation that would have warranted a rating of at least 30 percent under the Veterans Affairs Schedule for Rating Disabilities (VASRD), required for a medical retirement.   In view of the above, we adopt the opinions and recommendations of the Air Force offices of primary responsibility (OPR) and the BCMR Medical Consultant as our conclusion the applicant has not sustained his burden of proof to warrant granting the requested relief.  Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief.  

4.  Notwithstanding the above, sufficient relevant evidence has been presented to demonstrate the existence of an error or an injustice to warrant partial relief.   We believe the applicant’s case includes compelling information for us to conclude he was unjustly denied a full MEB prior to his separation as a result of the Enlisted Retention Board (ERB).  In this respect, the Medical Consultant concedes the applicant should have been confronted with a MEB far in advance of his date of separation and that he would have been Discharged With Severance Pay (DWSP) rather than retired had he been evaluated by a full MEB/PEB.  AFPC Medical Standards also states that based on the information provided, he likely would have been medically separated and not retired.   Additionally, his DD Form 214 reflects his RE code as “4K” which is inconsistent with his narrative reason for separation of “Reduction in Force.”  Therefore, we adopt the opinion and recommendation of AFPC/DPFD that the applicant would have been found unfit and recommended for DWSP with a compensable rating of 20 percent for his unfitting condition of lumbar radiculopathy had he not been denied a full MEB.  Therefore, it is our recommendation the applicant’s records be corrected to reflect he was DWSP with a compensable rating of 20 percent for physical disability.  Accordingly, we recommend the applicant’s record be corrected to the extent indicated below.   

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that:

a.	 On 31 January 2015, the Physical Evaluation Board (PEB) 
found the applicant unfit for his condition of lumbar radiculopathy with a rating of 20 percent for compensable physical disability, in accordance with Veterans Affairs Schedule for Rating Disabilities (VASRD) codes 8520 and 8526.  

b.	 His DD Form 214, Certificate of Release or Discharge from 
Active Duty, issued on 31 January 2015, be amended in Item 23, Type of Separation, to reflect “Medical Discharge,” instead of “Release from Active Duty” and Item 28, Narrative for Separation, reflect “Discharge with Severance Pay,” instead of “Reduction in Force.”  

The following members of the Board considered AFBCMR Docket Number BC-2015-04914 in Executive Session on 2 March and 9 May 2017 under the provisions of AFI 36-2603:

	 , Panel Chair
	 , Member
      , Member

All members voted to correct the records as indicated.  The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-04914 was considered:

	Exhibit A.  DD Form 149, dated 5 October 2015, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DP2NP, dated 22 April 2016,
			  w/atchs.	
	Exhibit D.  Letter, AFBCMR, dated 15 June 2016.
	Exhibit E.  Letter, Applicant, dated 8 July 2016, w/atchs.
	Exhibit F.  Memorandum, BCMR Medical Consultant, dated
			  9 February 2017.
	Exhibit G.  Letter, AFBCMR, dated 11 February 2017.  
	Exhibit H.  E-mail, AFPC/DPFD, 31 March 2017, w/atch.
	Exhibit I.  Letter, AFBCMR, dated 5 April 2017.  

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.