RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2016-04292

	COUNSEL: 

	HEARING: YES

APPLICANT’S REQUEST.  His involuntary separation for Physical Standards be corrected to reflect a medical retirement. 

APPLICANT’S CONTENTION.  He was separated on 28 Oct 13 due to four fitness assessment failures within a 24-month period. The Air Force Flight Surgeon team certified that he had no medical reason to not pass a fitness assessment, however the Flight Surgeon team was negligent in his health care leading to a deterioration of his conditions.  He completed the aerobic component of the Fitness Assessment (FA) with bad knees, bad back and asthma.   Five months after his separation, he underwent a double disc fusion surgery to remove and replace two discs that were damaged while on active duty and detected on an MRI in Feb 13.  The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS.  The applicant was discharged from the Regular Air Force in the grade of captain on 28 Oct 13.  For more information, see the excerpt of the applicant’s record at Exhibit B and the advisory at Exhibit C.

AIR FORCE EVALUATION.  The BCMR Medical Consultant recommends denying the application and states, Title 10, United States Code (U.S.C.), the Military Department only considers a medical separation or retirement when one or more medical conditions precludes a service member from effectively performing the duties of his or her office, grade, rank, or rating, poses a decided health risk to the member and safety of others, or causes an inordinate use of resources in order to retain the individual; among other factors.  Making an unfit decision for any of the applicant’s medical conditions would be based upon opinion, conjecture, and speculation; although exercise-induced asthma and chronic testalgia borders on potentially unfitting.  Again, the applicant’s health care providers, by the lack of sufficient evidence, appear to have pursued retention over unfitness and declaration of duty limitations.

A trigger for a Medical Evaluation Board (MEB) occurs when a given medical condition has been identified that has required duty and mobility restrictions in excess of 365 days and it is not expected to resolve or improve without restrictions to duty; as would be depicted on an AF Form 469, Duty Limiting Condition Report, coded “37” for the given impediment to duty.  No AF Forms 469, coded “37,” are provided in the case file for chronic back pain, knee pain, scrotal pain, foot pain, nor reactive airway disease.  Another trigger for MEB processing would be evidence of an exemption to any component of the FA for a 12-month or more period, as would be shown on one or more AF Forms 422, Air Force Member’s Qualifications Status, depicting the physical restrictions to performing any given component of the FA.  Again, these documents are not supplied.  However, an MEB was initiated and the applicant’s case was reportedly reviewed by officials at AFPC/DPANM where a recommendation was made to retain the applicant with an Assignment Limitation Code – C2; found sufficiently deployable to all CONUS locations and select OCONUS locations with fixed medical facilities.

The applicant had at his disposal measures he could have undertaken prior to discharge, e.g., complaints to the MTF/CC or Wing/IG, if there was a question of the medical decision-making or quality of care given to him.  Despite the applicant’s history of back issues, he performed the sit-ups; and despite the last evidence of possible reactive airway disease and epididymitis, he performed the aerobic testing, albeit the “walk test.”  There is no waiver/exemption for abdominal circumference, unless a medical condition exists that could distort the measurement. Service members are often caught up in the risk for early termination of employment versus career pursuing progression, despite their medical ailments, e.g., downplaying or failing to report deterioration of a given medical condition, until such a time that a separation action for any cause is imminent, or in this case, has already occurred.  This is evident when viewing the applicant’s longstanding clinical history of chronic/recurrent episodes of care for the same medical complaints over a several-year period from CY07 above and the literal absence of FA ex-emptions for any component for his 5 most recent failures. 

Under Title 38, U.S.C., the Department of Veterans Affairs (DVA) offers 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.  The BCMR Medical Consultant advisory is at Exhibit C.

AFPC/DP2SSM recommends denying the application and states the proper course of action was taken by the applicant’s commander in accordance with AFI 36-2905, Fitness Program, to recommend separation due to physical standards.  The AFPC/DP2SSM advisory is at Exhibit D.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION.  The Board sent a copy of the Air Force evaluation to the applicant on 5 Oct 17 for comment (Exhibit E), and the applicant replied on 3 Nov 17.  Through counsel, the applicant reaffirms his request to be processed for a medical retirement and argues several points made in the BCMR Medical Consultant advisory opinion and contends that it encapsulates the necessity to undergo an MEB.  Some pertinent information was left out in that he required surgery in 2013 for a torn meniscus on his left knee.  

It was noted that he was likely downplaying the severity of his medical issues in order to preserve his Air Force career.  Further, his chain of command was also likely aware of this and permitted this because he was a good officer in a difficult career field, making him extremely valuable to the Air Force. Although this is a common scenario, which the advisory opinion also points out, this ultimately led to him being improperly and inequitably discharged with lasting medical issues and without the proper compensation.  

The BCMR Medical Consultant also points out he is eligible to receive compensation from the Department of Veteran Affairs for his medical issues that were incurred in the line of duty, essentially this allows commanders to discharge a service member knowing that the service member has significant medical issues, because the Department of Veteran Affairs will be able to offer financial assistance to the veteran.  The applicant’s complete response is at Exhibit E.

THE BOARD CONCLUDES:

1.  The application was timely filed.

2.  The applicant exhausted all available avenues of non-judicial relief before applying to the Board.  

3.  After thoroughly reviewing all Exhibits, it is the Board’s opinion that the applicant is not the victim of an injustice.  The Board concurs with BCMR Medical Consultant and AFPC/DP2SSM and finds that a preponderance of the evidence does not substantiate the applicant’s contentions.  Therefore, the Board recommends against correcting the applicant’s records.

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.

THE BOARD RECOMMENDS:  The APPLICANT be informed the evidence did not demonstrate material error or injustice, and the application will only be reconsidered upon receipt of relevant evidence not already considered by the Board.

CERTIFICATION: The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered AFBCMR Docket Number BC-2016-04292 in Executive Session on 28 Mar 18:

All members voted not to correct the record.  The panel considered the following:

Exhibit A: Applicant’s application, DD Form 149, dated 24 Oct 16, w/atchs.
Exhibit B: Documentary evidence, including excerpts from official records.
Exhibit C: Advisory opinion, BCMR Medical Consultant, signed 22 May 17.
Exhibit D: Advisory opinion, AFPC/DP2SSM, dated 25 May 17.
Exhibit E: Notification of Advisories, AFBCMR to applicant, dated 5 Oct 17.
Exhibit F:  Applicant’s response to Exhibits C and D, dated 3 Nov 17.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings required by AFI 36-2603, paragraph 4.11.9.