RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2016-01510 

    						COUNSEL:  NONE

HEARING DESIRED:  YES

APPLICANT REQUESTS THAT:

1.  His AF Form 356, Findings and Recommended Disposition of USAF Physical Evaluation Board, be corrected to reflect how he was injured in Aug 13. 

2.  He receive Medical Continuation Orders (MEDCON) orders for seven weeks beyond his retirement date so TRICARE covers the full cost of his rehabilitation for his bicep surgery.  

3.  His bi-lateral carpal tunnel syndrome be rated as unfitting.  

4.  His Letter of Admonishment (LOA), dated 20 Nov 14, and Letter of Reprimand (LOR), dated 7 Apr 15, be declared void and removed from his military record. 

5.  By amendment (rebuttal), he be extended on active duty until his back injury is medically evaluated and properly addressed. 

APPLICANT CONTENDS THAT:

1.  His AF Form 356 states he injured his shoulder loading boxes, however, he injured his shoulder and bicep loading a chair onto a scrap pile after an airman dropped a pallet of metal chairs. 

2.  The National Guard Bureau (NGB) failed to approve his bicep surgery during a seven week period so his physical rehab was delayed seven weeks past his retirement, causing him to pay $2,000 of medical expenses. 

3.  The Informal Physical Evaluation Board (IPEB) incorrectly determined his carpal tunnel syndrome (CPS) was not a separate unfitting condition.  

4.  Due to injuries suffered on active duty he could not exercise properly, thus he gained weight which increased his waist measurement and caused him to fail the abdominal circumference (AC) component of the fitness assessment (FA).

5.  He was injured on 25 Oct 15, three days before his retirement.  He fractured his vertebra, and hurt his right hip and leg.  He was told he could be extended on active duty for 60 days.  Then, on 28 Nov 15, he was notified his original retirement date of 28 Oct 15 was used for his retirement.  He went unpaid for six weeks during this period.

6.  His legal counsel failed to counsel him on appealing the FPEB final decision to the Secretary of the Air Force. 

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

STATEMENT OF FACTS:

The applicant served in the Air National Guard in the grade of technical sergeant during the time of matter under review.  

According to the documentation submitted by the applicant:

1.  On 8 Sep 14, the applicant’s commander issued him LOA for failing his fitness assessment (FA) for the second time, with scores of 32.60 and “0.” 

2.  On 7 Apr 15, the applicant’s commander issued him a LOR for failing his FA for the fourth time.  

3.  Under Order Number Z5YVM9, dated 27 Aug 15, the applicant was placed on medical continuation projected for the period 31 Jan 14 through 28 Dec 15.  

On 19 Aug 15, the FPEB found the applicant unfit for duty, and recommended he be separated for physical disability, effective 28 Oct 15, with a 20 percent combined disability rating under the provisions of Title 10 United States Code (USC) § 1203 for injuries to his left shoulder and left bicep.  Because the applicant had over 20 years of satisfactory service for retirement under Title 10 USC § 12732a, he requested transfer to the Inactive Status List Reserve Section (ISLRS) in lieu of being discharged with severance pay. 

On 26 Oct 15, while on terminal leave, the applicant sought medical care at a Department of Veteran’s Affairs (DVA) hospital, stating that on 25 Oct 15 he had fallen down the stairs at home and injured his back.  A CT scan indicated a fracture in one of his lumbar vertebrae.  

On 27 Oct 15, the applicant was furnished an honorable discharge, and was credited with 7 years, 6 months, and 5 days of total active service, and 17 years, 8 months, and 7 days of inactive service.  

On 28 Oct 15, the applicant was transferred to ISLRS awaiting age 60 to draw retired pay.  

On 30 Oct 15, a Line of Duty Determination (LOD) for the back injury the applicant sustained on 25 Oct 15 was started, the ANG Appointing Authority recommended his injuries be determined to be in the line of duty (ILOD), however, the remainder of the AF Form 348 was left blank as it appears the remainder of the process was not completed. 

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, F, and I.    

AIR FORCE EVALUATION:

The AFPC Disability Office recommends denial of the applicant’s request to change his separation, indicating there is no evidence of an error or an injustice.  The Disability office is unclear to what all the applicant is completely contending in his application, so they addressed his request to have his Bilateral Carpal Tunnel Syndrome found unfitting and his concerns with the injuries that incurred during a fall three days prior to his separation.  The applicant was referred to the informal physical evaluation board (IPEB) for physical disability processing in February 2015 for osteoarthritis left shoulder and bi-lateral carpal tunnel syndrome.  He was found unfit by the IPEB, with a recommendation to discharge him with severance pay (DWSP) with a combined compensable disability rating of 10 percent for osteoarthritis left shoulder status post rotator cuff repair, non-dominant (also diagnosed with left shoulder strain, bicipital tendonitis and rotator cuff tear; also claimed as tendonitis), and his bi-lateral carpal tunnel syndrome found not unfitting.  The applicant non-concurred and appealed to the formal physical evaluation board (FPEB) to contend his left bicep tendon tear (not rated by the VA) is also unfitting; with no mention to his bi-lateral carpal tunnel syndrome.  The FPEB upheld the prior determination of DWSP at 10 percent.  Following the formal board hearing, the applicant concurred with the FPEB unfit findings and exercised his right to request a one-time reconsideration with the Department of Veteran’s Affairs (DVA) for a separate rating of his left bicep tendon tear condition.  Upon receipt of the reconsidered DVA rating, the FPEB adjusted the DWSP determination to a combined compensable disability rating of 20 percent.  Ten percent for osteoarthritis left shoulder status post rotator cuff repair, non-dominant, and ten percent for left biceps tendon partial tear (with changes to myotendinous junction) (non-dominant).  Since the applicant had over 20 years of satisfactory service under Title 10 USC, § 12732a, he was offered the opportunity to elect ISLRS in lieu of being DWSP.  On 26 Aug 15, the applicant elected ISLRS and was separated effective 28 Oct 15.

Under Title 10 USC, Physical Evaluation Boards must determine if a member’s condition(s) renders them unfit for continued military service relating to their office, grade, rank or rating.  The fact a person may have a medical condition does not mean the condition is 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.  Neither the IPEB nor the FPEB found this to be the case with the member’s bi-lateral carpal tunnel syndrome.  It was noted on the VA exam the applicant was found to have 5/5 range of motion at the bilateral elbows and wrists, with grip strength 5/5 and thumb to index finger 5/5 bilaterally and there is no muscle atrophy: hence conditions were determined not unfitting.  In addition, the member provided documentation in his DD Form 149, Application for Correction of Military Record, regarding a fall which resulted in injuries to his back and left ankle three days prior to his separation date.  The IPEB was unware of this incident/injuries; however, if the medical treatment facility (MTF) felt these injuries were to result in board-able unfitting conditions that would change the outcome of the current MEB, the MTF had the option to request a recall of the case to allow further treatment of the conditions.

We recommend denial of the applicant’s request. There is no indication an error or injustice occurred at the time the PEB processed his disability case.

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

AFPC/DP2SSM recommends denial of the applicant’s request to void and remove his LOA and LOR from his record, indicating there is no evidence of an error or injustice.  He contends his LOA and LOR should be rescinded due to the restrictions placed on him physically.  In accordance with (IAW) AFI 36-2905, Fitness Program, paragraph 10.1. “Members are expected to be in compliance with Air Force fitness standards at all times.  When members fail to comply with those standards (receive an Unsatisfactory FA score), they render themselves potentially subject to adverse action.  Commanders should consult with their servicing Staff Judge Advocate before taking such action.”  In addition, paragraph 10.1.5.1. states “Unit Commanders must make a discharge or retention recommendation to the separation authority (enlisted airmen), show cause authority (officers), or appropriate discharge authority for AFR and ANG members once an Airman receives four Unsatisfactory FA scores in a 24-month period and a military medical provider has reviewed the airman’s medical records to rule out medical conditions precluding the airman from achieving a passing score.  If the separation authority (enlisted airmen), show cause authority (officers), or appropriate discharge authority for AFR and ANG members disagrees with the unit commander’s retention recommendation, discharge action is initiated pursuant to applicable discharge instruction.”

Per the applicant’s AF Forms 469, Duty Limiting Condition Report, the medical provider deemed the applicant fit for the AC component and exempted all other components.  After failing four FAs, it was imperative administrative action was taken against the applicant.  The applicant’s commander followed proper procedures outlined in AFI 36-2905.  We recommend denying the applicant’s request to void and remove his LOA and LOR because the medical documentation cleared him to perform the AC component of the FAs.

A complete copy of the AFPC/DP2SSM evaluation is at Exhibit D.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the first two Air Force evaluations were forwarded to the applicant on 3 Feb 17 for review and comment within 30 days (Exhibit E).  Prior to providing the applicant with additional Air Force evaluations, no response was received by this office.

ADDITIONAL AIR FORCE EVALUATION:

The BCMR Medical Advisor recommends denial of the applicant’s request to declare his carpal tunnel syndrome (CTS) an unfitting condition, and to remove his LOA or LOR, however, recommends granting relief by declaring the applicant’s back injury as ILOD.  Despite the applicant’s selective FA exemptions, under AFI 36-2905, Fitness Program, “all members will complete an AC [abdominal circumference] assessment, as listed in paragraph 5.2.5, unless they have a Deployment Availability Working Group (DAWG) approved exemption for a condition that the MTF provider/FPM/MLO deems would warrant AC assessment exemption.”  The Medical Consultant opines the applicant’s remaining aerobic capacity to walk and diet, as necessary, did not exempt him from passing the abdominal circumference measurement.  Thus, in consideration of the applicant’s petition for removing his Letters of Admonishment and Reprimand, the latter following his fourth FA failure, the Medical Consultant opines the commander acted within his authority under AFI 36-2905.

Addressing the applicant’s carpal tunnel syndrome (CTS), the limited evidence indicates that he underwent surgical treatment on both wrists for this condition; albeit initially characterized as “severe” on the left.  However, given the incidental discovery of this condition via an EMG, in the course of evaluating the applicant’s continued symptoms, and the lack of any documented permanent residual post-operative impediment to duty, the Medical Consultant also found the evidence insufficient to warrant a de facto unfit finding for CTS.  

Readdressing the applicant’s fall resulting in an avulsion fracture of the L4 vertebral body, reportedly “on October 25, 2015 while still on active duty orders,” the applicant indicates, as of 9 Apr 16, “the VA [had] not compensated [him] for that injury, [nor] have they been able to relieve [his] pain in [his] back and right leg.”  The Medical Consultant finds it reasonable to conclude the applicant’s injury, reportedly sustained on or about 25 Oct 15, did indeed occur prior to his date of separation and, after ruling out gross negligence [e.g., whether he did or did not turn a light on prior to embarking down the steps], this condition should be found In the Line of Duty.  The Medical Consultant acknowledges the applicant’s servicing Medical Treatment Facility (MTF) had the option [or obligation] to consider recalling the applicant’s Medical Evaluation Board to further extend his date of separation to address the back injury.  However, given the passage of time and the absence of objective evidence, the Medical Consultant will be left with speculation and conjecture if pressed with a de novo unfit finding and a corresponding disability rating for the applicant’s small vertebral avulsion fracture.  

The Medical Consultant did not address the applicant’s implicit claim for reimbursement of expenditures, e.g., “$2000.00 medical bill,” incurred during the 6 to 7 weeks following his date of retirement.  Eligibility for care, beyond emergency treatment, may be linked to the requirement for an ILOD finding for a given medical condition; e.g., the applicant’s back injury 2 to 3 days prior to date of separation for which he received an incomplete LOD Determination.

The Medical Consultant recommends denial of the applicant’s petition to include carpal tunnel syndrome as an unfitting condition in his disability rating computation and final disposition; finds no basis in law to expunge the disciplinary letters issued to the applicant for his FA failures; however, does recommend the Board declare the applicant’s lumbar spine injury, sustained prior to his date of separation, as ILOD.

A complete copy of the BCMR Medical Advisor’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 15 Dec 17 for review and comment within 30 days (Exhibit G).  The applicant submitted a rebuttal response to the Air Force evaluations in which he takes exception to their recommendation to deny, and presents a list of issues he contents are errors.  He contends the information reflected on his AF 356 about how he was injured is wrong; the date he was injured is wrong; the IPEB and FPEB were both wrong; and the MFR, dated 14 Oct 14, which states he hurt his shoulder throwing metal chairs is wrong.  The problem was the lack of urgency by the NGB to approve his surgery in a timely manner, otherwise, TRICARE would have paid for the surgery.  The Air Force and ANG could have done more to help him with his back injury, which occurred prior to his retirement, but they failed to do so.  (Exhibit H)

FOURTH AIR FORCE EVALUATION:

AFPC/DPFA recommends denial of the applicant’s request to provide him additional MEDCON orders, indicating there is no evidence of an error or an injustice.  In accordance with AFI 36-2910, Line of Duty Determinations, paragraph 5.2.7, “Members who have been discharged/retired, or medically separated or retired as a result of a DES determination, are not eligible for MEDCON.”  The applicant was medically retired on 27 Oct 15, and was not eligible for MEDCON or active duty orders for the period of time he is requesting.  

A complete copy of the AFPC/DPFA evaluation is at Exhibit I.

APPLICANT'S REVIEW OF THE FOURTH AIR FORCE EVALUATION:

A copy of the fourth Air Force evaluation was forwarded to the applicant on 12 Mar 18 for review and comment within 30 days (Exhibit J).  As of this date, no further rebuttal responses have been received from the applicant. 

THE BOARD CONCLUDES THAT:

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

2.  The application was timely filed.

3.  After reviewing all available information, we conclude the applicant has presented insufficient evidence to demonstrate an error or injustice to warrant extending him on active duty/MEDCON orders, changing his record to reflect his carpal tunnel syndrome as unfitting, or to remove the contested LOA and LOR from his record.   The applicant’s contentions are duly noted; however, we agree with the opinion and recommendation of the offices of primary responsibility (OPRs) that the applicant has failed to sustain his burden of proof that he has been the victim of an error or injustice.  We also note that applicant requests his AF Form 356, be corrected to reflect how he was injured in Aug 13; however, the applicant has not provided substantial evidence of an error or injustice.  The applicant also has not provided sufficient evidence to establish he was miscounseled on his right to petition to Secretary of the Air Force Personnel Council.  Notwithstanding the above, we agree with the opinion and recommendation of the BCMR Medical Consultant that the applicant’s record should be corrected to show his back injury was incurred in the line of duty.  Therefore, the Board recommends correcting the applicant’s records to the extent indicated below.

4.  The applicant’s case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved.  Therefore, the request for a hearing is not favorably considered.

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that on 25 October 2015, his back injury was found to be in the Line of Duty (LOD).

The following members of the Board considered AFBCMR Docket Number BC-2016-01510 in Executive Session on 8 May 18 under the provisions of AFI 36-2603:

Panel Chair
Panel Member
Panel Member

All members voted to correct the record.  The following documentary evidence pertaining to AFBCMR Docket Number BC-2016-01510 was considered:

Exhibit A.  DD Forms 149, dated 8 Apr 16 and 8 Sep 16, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records [Excerpt].
Exhibit C.  Memorandum, AFPC Disability Office, dated 19 May 16. 
	Exhibit D.  Memorandum, AFPC/DP2SSM, dated 22 Sep 16.
	Exhibit E.  Letter, SAF/MRBR, dated 3 Feb 17.
Exhibit F.  Memorandum, BCMR Medical Advisor, dated 30 Aug 17. 
Exhibit G.  Letter, SAF/MRBR, dated 15 Dec 17. 
Exhibit H.  Letter, Applicant, dated 16 Feb 18.
Exhibit I.  Memorandum, AFPC/DPFA, dated 8 mar 18. 
Exhibit J.  Letter, SAF/MRBR, dated 12 Apr 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.