RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2016-00665 

    						COUNSEL:  NONE

HEARING DESIRED:  NO

APPLICANT REQUESTS THAT:

1.  His administrative separation be changed to a medically retirement.  

2.  In the alternative, he be granted a regular retirement based upon 18 good years of service. 

APPLICANT CONTENDS THAT:

His Medical Evaluation Board (MEB) proceedings, dated 22 Feb 12, found him medically qualified to return to duty with Assignment Limitation Code (ALC) 3C (Home station duty only.  Member should not occupy a mobility position.)  However, because he was in a mobility slot, without his having access to legal counsel he was unjustly forced to transfer to the IRR or receive a dishonorable discharge based on failure to meet fitness standards.  Air Force Reserve Command prohibits a change in a member’s status without Surgeon General (SG) approval, but in his case no such approval was sought.  In accordance with Title 10, United States Code (U.S.C.), Section 1214a, his separation orders were illegal, denying him avenue for exercising due process of the law, such as a follow-up MEB.  

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

STATEMENT OF FACTS:

On 11 Sep 09, the applicant received an AF Form 469, Duty Limiting Condition Report, exempting him from running, walking, push-ups and sit-ups during his Fitness Assessment (FA), and restricting him to home station duty with no mobility allowed.  

On 10 Jan 12, the Department of Veterans Affairs (DVA) notified him they rated him as having the following disabilities, effective 9 Sep 09:

	1.  Left Knee Instability--30 percent
	2.  Right Knee Instability--30 percent
	3.  Right Knee Meniscus Tear--10 percent
	4.  Left Knee Meniscus Tear--10 percent
	5.  Bilateral Plantar fasciitis--10 percent

On 22 Feb 12, AFRC/SGPA determined the applicant was medically qualified to return to duty, but placed him on Assignment Limitation Code (ALC) C3.  

On 8 Apr 13, he received a referral Enlisted Performance Report (EPR) covering the period 19 May 10 through 18 May 12, on which he was marked “Does Not Meet” FA Standards.  

Under Reserve Order A-184, dated 11 Apr 13, the applicant was transferred to the IRR.  

Under Reserve Order CA-006286, dated 13 Apr 16, the applicant was honorably discharged from the Air Force Reserve, effective 10 Apr 16.  

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 and D.    

AIR FORCE EVALUATIONS:

AFRC/A1K recommends denial indicating there is no evidence of an error or an injustice.  Title 10, U.S.C., Section 1214a is not applicable to the applicant’s case because the applicant was not subjected to involuntary administrative discharge or denial of reenlistment and his medical evaluation case was not evaluated by the Physical Evaluation Board (PEB).  The United States Air Force Reserve Unit Program’s monitoring of his medical condition, to include possible further medical evaluation, concluded when the applicant transferred to the IRR. 

A complete copy of the AFRC/A1K evaluation, with attachments, is at Exhibit C.

The BCMR Medical Advisor recommends granting the applicant’s request for a medical retirement, indicating there is evidence of an error or injustice.  Although the applicant suffered from chronic knee and foot ailments, spanning at least three years, AFRC/SG officials, for whatever underlying reason, found him fit and returned him to duty with an ALC-C3.  Given the choice of risking a 4th FA failure versus transferring to the IRR, the applicant chose [allegedly was “forced”] the latter option on 11 Apr 13, then was discharged from the Reserve in 2016.  The Medical Advisor has no means to validate the allegation the applicant was “forced” to sign a document assigning him to the IRR.  However, the Medical Advisor concedes the chronic and intractable resolution of the applicant’s knee and foot ailments, in the context of his Security Forces Air Force Specialty Code (AFSC), raises the questions of his fitness to serve.  

One AF Form 469, Duty Limiting Condition Report, initiated on 11 Sep 09, is coded “31,” (injury expected to resolve within 31 to 365 days) medical progress notes clearly indicate profile restrictions were continued thereafter.  If restrictions are imposed for greater than 365 days, and not expected to be resolved, consideration should be made for Medical Evaluation Board/Physical Evaluation Board (MEB/PEB) processing.  Further, while the AFRC/SG officials’ decision to return the applicant to duty was well within the vested authority and did not constitute an error, retaining a Security Forces member, with a non-deployable ALC-C3, in the context of his chronic, near intractable, duty-limiting foot and knee problems, spanning at least three years, leads one to consider other possible factors that may enter the realm of the unjust.  

The Medical Advisor finds the evidence of record shows the applicant’s left knee condition(s) and bilateral plantar fasciitis, as a minimum, would have been found unfitting by a (PEB).  Therefore, the disability ratings assigned by the DVA, for the unfitting conditions, under the Integrated Disability Evaluation System (IDES), would determine the final military disposition [separation vs retirement].  The DVA has generously assigned a 30 percent rating for the applicant’s left knee instability, a separate 10 percent rating for the left medial meniscus tear, and a 10 percent rating for bilateral plantar fasciitis; achieving a combined [not added] disability rating of 40 percent.  Based upon a preponderance of evidence [chief complaints and surgical interventions predominantly of the left knee], the Medical Advisor believes his right knee condition would not have been the cause for career termination.  Operating under Title 10, U.S.C., the Military Department only assigns disability ratings to those conditions found unfitting.  Thus, inclusion of the right knee in the military unfit rating computation would not be recommended.  

Recommend rendering an unfit finding for the chronic medical conditions that prohibited deployment over an extended period; then, via the de facto unfit determination and utilizing the DVA ratings assigned for those applicable conditions, granting a disability retirement as of 11 Apr 13, based upon the combined disability rating computation of 40 percent.  

A complete copy of the BCMR Medical Advisor evaluation is at Exhibit D.

APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

In further support of his applicant, the applicant submitted a letter in response to the Air Force advisories, in which he reiterates his explanation of why he felt he was unjustly forced out of service, and states that he believes he should have been retired at the time of the PEB determination of 23 Feb 12.  (Exhibit E)

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was timely filed.

3.  Sufficient 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 agree with the opinion and recommendation of the BCMR Medical Advisor and adopt his rationale as the basis for our conclusion the applicant has been the victim of an error or injustice.  While the notes the applicant’s request for a medical retirement date of 23 Feb 12, we believe the appropriate date is the date the applicant chose to voluntarily leave active duty and transfer to the IRR.  Therefore, we recommend the applicant's records be corrected as 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 on 

	a.  On 10 April 2013, the applicant was found unfit to perform the duties of his office, rank, grade, or rating by reason of physical disability, incurred while he was entitled to receive basic pay; the diagnoses was bilateral plantar fasciitis (10 percent), left knee instability (30 percent), and a left radial meniscus tear (10 percent), rated at a combined compensable percentage of 40 percent: the degree of impairment was permanent; the disability was not due to intentional misconduct or willful neglect; the disability was not incurred during a period of unauthorized absence; and, the disability was not received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war.

	b.  On 11 April 2013, he did not transfer to the Individual Ready Reserve (IRR), but on that date was permanently retired by reason of physical disability with a 40 percent compensable disability rating.

	c.  The election of Survivor Benefit Plan option(s), will be corrected in accordance with the applicant’s expressed preferences and/or as otherwise provided for by law or the Code of Federal Regulations.

The following members of the Board considered AFBCMR Docket Number BC-2016-00665 in Executive Session on 7 Mar 18 under the provisions of AFI 36-2603:

	 Panel Chair
	 Member
	 Member

All members voted to correct the records as recommended.  The following documentary evidence pertaining to AFBCMR Docket Number BC-2016-00665 was considered:

	Exhibit A.  DD Form 149, dated 12 Feb 16, w/atchs.
	Exhibit B.  Master Personnel Records [Excerpt].
	Exhibit C.  Memorandum, AFRC/A1K, dated 15 Feb 17, w/atchs.
Exhibit D.  Memorandum, AFBCMR Medical Advisor, dated 24 Oct 17.
	Exhibit E.  Letter, SAF/MRBR, dated 12 Dec 17.
	Exhibit F.  Letter, Applicant, dated Jan 18.  

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