RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-04937

  						COUNSEL:  

						HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

Her entry level separation (ELS) without character of service reflected on her DD Form 214, Certificate of Release or Discharge from Active Duty, be changed to an Honorable discharge. 

APPLICANT CONTENDS THAT:

Her discharge was for a service-connected disability.  

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

STATEMENT OF FACTS:

The applicant initially entered the Regular Air Force on 24 Jul 96.

On 30 Aug 96, the applicant’s commander notified her he was recommending her for discharge for erroneous enlistment--failure to meet Air Force physical standards.  The reason for taking this action was a medical evaluation board (MEB) found that due to mechanical low back pain she did not meet the standards to join the Air Force, and had this condition been made known, she would not have been allowed to enlist.  The applicant waived her right to counsel and to submit statements on her own behalf.  

On 3 Sep 96, the discharge authority directed the applicant be discharged with an entry level separation (ELS).  

On 6 Sep 96, the applicant was furnished an Entry Level Separation with “uncharacterized” character of service, a narrative reason for separation of “Failed Medical/Physical Procurement Standards,” and was credited 1 month and 13 days of total active service.   

According to documentation provided by the applicant, on 5 Dec 96, the Department of Veterans Affairs (DVA) granted the applicant a 10 percent disability rating due to service-connection for her low back strain.  The DVA examiner concluded the applicant’s injury was “permanently worsened as a result of service.”

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

AIR FORCE EVALUATIONS:

AFPC/DP2STM-SEP recommends denial indicating there is no evidence of an error or an injustice.  The applicant indicated that prior to entering basic military training, she was involved in a motor vehicle accident.  After being seen in an emergency room, followed by a chiropractor and an orthopedist, she was released from physical therapy care one week prior to arrival at basic military training (BMT).  The medical report stated the applicant reported difficulty with her back from the start of BMT when carrying her paraphernalia from clothing issue, and she had difficulty with standing and marching.  The report went on to state that after an orthopedic evaluation, the diagnosis was one of exacerbation of low back pain which was mechanical in nature.  The MEB concluded the applicant should be separated for the pre-existing condition of low back pain.

Airman are given ELS with uncharacterized service when separation is initiated in the first 180 days of continuous active service.  The Department of Defense (DoD) determined it would be unfair to the member and the service to characterize a member’s limited service when separation is initiated within the first 180 days of active service.  Therefore, the “uncharacterized” character of service on the DD Form 214 is correct.  

The discharge was consistent with the procedural and substantive requirements of the discharge instruction and was within the discretion of the discharge authority.  There is no evidence of any errors or injustices in the discharge processing.  Therefore, the Separation Program Designator (SPD) code and narrative reason for separation are correct as indicated on the applicant’s DD Form 214.  The applicant did not file a timely application.  It has been approximately 20 years since the applicant’s discharge.  

A complete copy of the AFPC/DP2STM-SEP evaluation is at Exhibit C.

AETC/SGPS recommends denial indicating there is no evidence of an error or an injustice.  The applicant took her Military Entrance Processing Station (MEPS) physical examination on 9 Dec 95 and was found medically qualified at that time.  There was no mention of any previous back injury history noted on this exam.  In Feb 96, she was involved in a motor vehicle accident and sustained an injury to her back.  Per USMEPCOM regulation 40-1, Medical Qualification Program, a physical inspection is required prior to shipping an enlistee to BMT that includes a review of medical history since the last physical exam.  Her final MEPS physical inspection on 24 Jul 96 had no entry on SF 88, Report of Medical Examination, indicating her back injury history.  On 22 Aug 96, a Medical Board found she had mechanical low back pain that existed prior to service that did not incur while in basic training and was not permanently aggravated by service.

The applicant did not provide any evidence an error or injustice occurred in the processing of her discharge.  Recommend denial.

A complete copy of the AETC/SGPS evaluation is at Exhibit D.

The AFBCMR Medical Advisory recommends denial indicating there is no evidence of an error or an injustice.  On 20 Aug 96, an MEB narrative summary (NARSUM) indicates the applicant sustained a back injury in a Feb 96 motor vehicle accident, after having been cleared for service entry in Dec 95.  The fact the applicant injured her back in a motor vehicle accident prior to entering military service, which required an emergency evaluation, with follow-up care by a chiropractor and an orthopedic surgeon, suggests existence of an underlying condition that existed prior to entering military service.  The applicant’s reluctance or failure to report the intervening motor vehicle accident, after being cleared for service in Dec 95, could be viewed by some as fraudulent enlistment.  

The Medical Consultant acknowledges the decision by the DVA to award the applicant a 10 percent disability rating.  However, based upon the history of a motor vehicle accident requiring specialty care prior to entering military service, the short duration of time between the applicant’s release from physical therapy and her entry to military service, the short duration of time between her entry to military service and the onset of symptoms, and the relative benign conditions under which her symptoms occurred, the Medical Consultant opines the applicant likely experienced an “exacerbation of pain,” but without evidentiary proof of “permanent” worsening of her condition above and beyond its expected clinical expression, while performing certain physical activities.  The Medical Consultant opines the applicant has not met the burden of proof of error or injustice to warrant the desired change of the record.

A complete copy of the AFBCMR Medical Advisory evaluation is at Exhibit E.

APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

Copies of the Air Force evaluations were forwarded to the applicant on 22 Feb 17 for review and comment within 30 days (Exhibit F).  As of this date, no response has been received by this office.

FINDINGS AND CONCLUSIONS OF THE BOARD:

Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice.  After a careful review of the applicant's contentions, documentation submitted in support of the request, and the available evidence of record, we are not convinced the applicant has provided sufficient evidence for us to conclude she is the victim of an error or injustice.  We also note the applicant did not file the application within three years after the alleged error or injustice was discovered, or should have been discovered, as required by Title 10, United States Code, Section 1552 and Air Force Instruction 36-2603.  While the applicant claims a date of discovery of less than three years prior to receipt of the application, we believe a reasonable date of discovery was more than three years prior to receipt of the application.  Therefore, because we do not find it would be in the interest of justice to recommend granting relief, and the applicant has offered no plausible reason for the delay in filing the application, we cannot conclude it would be in the interest of justice to excuse the failure to timely file the application.  Accordingly, we find the application untimely.

THE BOARD DETERMINES THAT:

The application was not timely filed and it would not be in the interest of justice to waive the untimeliness.  It is the decision of the Board, therefore, to reject the application as untimely.

The following members of the Board considered AFBCMR Docket Number BC-2015-04937 in Executive Session on 20 Apr 17 under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-04937 was considered:

	Exhibit A.  DD Form 149, dated 7 Nov 15, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DP2STM-SEP, dated 15 Feb 17.
	Exhibit D.  Memorandum, AETC/SGPS, dated 15 Feb 17.
	Exhibit E.  Memorandum, AFBCMR Medical Advisory, dated 21 Feb 17.
	Exhibit F.  Letter, SAF/MRBR, dated 22 Feb 17.

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.