RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-02151 COUNSEL: HEARING DESIRED: YES _________________________________________________________________ APPLICANT REQUESTS THAT: 1. His record be corrected to reflect he was not discharged but referred for a medical review. 2. In the alternative, his records be corrected to reflect that he received an honorable discharge under “Secretarial Authority.” _________________________________________________________________ APPLICANT CONTENDS THAT: 1. Prior to entering military service, he received surgical treatment for a medial meniscus tear of his right knee and was medically cleared to enlist. The Air Force had all the relevant information and there was no derangement of his right knee when he joined the Air Force. 2. While in basic military training (BMT), he began experiencing pain in his right knee and was subsequently diagnosed as having an “internal derangement of the right knee.” It was not a preexisting condition that the Air Force was unaware of when it permitted him to enlist. He did not meet the criteria required under AFI 36-3208, Administrative Separation of Airmen, for a discharge based on erroneous enlistment. In support of his request, the applicant provides copies of a five page supplemental statement, AF Form 3005, Guaranteed Aptitude Area Enlistment Agreement Non-Prior Service - United States Air Force; AF Form 3008, Supplement to Enlistment Agreement – United States Air Force; DD Form 4/1, Enlistment/Reenlistment Document Armed Forces of the United States; DD Form 2807-1, Report of Medical History; DD Form 2808, Report of Medical Examination; medical records and other documents in support of his application. The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: On 30 Jun 09, the applicant enlisted in the Regular Air Force. According to SGPS, on 3 Jul 09, the applicant sought an evaluation of his knee pain at Wilford Hall Medical Center emergency room after attempting to stand from a squatting/seated position (presumably on the floor). Throughout Jul 09, the applicant was treated for his injury with no resolution On 10 Aug 09, the applicant was notified of his commander’s intent to recommend that he be discharged from the Air Force under the provisions of AFPD 36-22, Air Force Military Training and AFI 36-3208, Administrative Separation of Airmen, paragraph 5.14. for Erroneous Enlistment. The applicant acknowledged receipt of the notification of discharge, waived his right to seek counsel and to submit a statement on his own behalf. On 11 Aug 09, the case was reviewed and determined to be legally sufficient to support separation. On 12 Aug 09, the discharge authority approved his entry level separation (ELS). On 14 Aug 09, the applicant was discharged from the Air Force with an entry-level separation, with an uncharacterized character of service in the grade of airman first class. He served 1 month and 15 days of total active service. The remaining relevant facts pertaining to this application are contained in the letters prepared by the appropriate offices of the Air Force, which are attached at Exhibits C, D, and E. _________________________________________________________________ AIR FORCE EVALUATION: HQ AETC/SGPS did not provide a recommendation. SGPS states the applicant’s separation was done in accordance with (IAW) established policy and administrative procedures. Even though the applicant’s condition rendered him unsuitable to continue military service; his condition has since been corrected. SGPS states they have no objection to the Board changing the applicant’s reentry (RE) code to allow him to reenter military service and changing the characterization of service to honorable. The complete SGPS evaluation is at Exhibit C. HQ AFPC/DPSOS recommends denial. DPSOS states Airmen are given entry-level separation/uncharacterized service characterization when separation is initiated in the first 180 days continuous active service. The Department of Defense (DoD) determined if a member served less than 180 days continuous active service, it would be unfair to the member and the service to characterize their limited service. Therefore, his uncharacterized service is correct and IAW with DoD and Air Force instructions. The applicant’s discharge to include the characterization of his service was consistent with the procedural and substantive requirements of the discharge instruction and was within the discretion of the discharge authority. The complete DPSOS evaluation is at Exhibit D. The BCMR Medical Consultant found no regulatory reason to change the applicant’s entry-level separation, reason for discharge, or the uncharacterized service. However, he agrees the applicant should be offered a change in his RE code to allow him to apply for reentry into military service. The Medical Consultant found no error in the use of the entry- level separation provision of AFI 36-3208 for the applicant’s knee condition, which had shown no evidence of permanent service aggravation, interfered with the completion of his training, and was discovered within the first 180 days of service. Under such circumstances, the Department of Defense (DoD) and the Air Force has determined that it would be unfair to characterize a member’s service following such a short duration of service; hence the issuance of an uncharacterized character of service. Had it been determined the applicant's knee ailment was permanently aggravated by military service, it is probable that he would have been eligible for processing through the military Disability Evaluation System for a medical separation, under provisions of AFI 36-3212 and an honorable character of service. The Medical Consultant opines that the 26 Aug 09 intra-operative evidence of a previous "attempted" surgical repair of the applicant's damaged medial meniscus, that "had not healed whatsoever" and was discovered within days of his separation, indicates the damage was more likely than not already present at the time the applicant entered military service. Therefore, the Consultant opines that had the Air Force known the applicant's repair had been unsuccessful, he likely would not have been cleared to enter military service at the time. However, the Medical Consultant opines that since over two years have passed since the applicant’s most recent surgical treatment, it is reasonable to change his RE-code, if requested, to allow him to re-enter military service; noting this recommendation has also been made by the Air Force waiver authority for pre-existing medical conditions. The complete BCMR Medical Consultant evaluation is at Exhibit E. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant’s counsel responded that the BCMR Medical Consultant states the applicant is requesting a change to his discharge to Honorable, Medical. However, the applicant is requesting he be referred for medical evaluation by the Disability Evaluation System (DES). The Consultant describes the evidence as showing that the repair was unsuccessful and thus the applicant entered the Air Force erroneously because he did not meet the requirements to enlist. The Consultant concedes that if the applicant's knee ailment was aggravated by military service he would have likely been eligible for processing under the DES. The Consultant argues that the repair was unsuccessful because the applicant reinjured his knee shortly after entering basic military training (BMT). However, there is no underlying basis for this argument other than the fact the applicant did in fact hurt his knee four days after starting BMT. The Consultant argues that the post operative notes from the 2008 repair show that the applicant had some residual symptoms after the surgery. However, the medical records show that he recovered well from his surgery and at six months his only symptom was an occasional "give way of the knee." However, this is only a partial excerpt from his six month follow up. Specifically, he reported, "that he jumps down from a height of approximately 2-1/2 to 3 feet at home and occasionally the knee will want to give way when he lands." The doctor also reported that his "meniscus is healing well. He has no recurrent mechanical symptoms or pain. He continues to have some mild quadriceps atrophy, and I have discussed that he needs to work diligently on increasing his strength." Counsel states there is a difference between the knee wanting to give way and the knee actually giving way. The applicant’s description of the knee wanting to give was consistent with his mild quadriceps atrophy. It is important to note that the doctor stated he had no recurrent "mechanical symptoms." In short, his six month follow up is consistent with a knee repair that was successful and healing well. Further, he underwent an entrance physical on 31 Mar 2009 and was cleared to enlist. This is also consistent with a successful repair of his meniscus. The Consultant points to the post operative notes from his second surgery on 17 Sep 2009 to support his argument that his first knee repair was unsuccessful. Doctor B, the applicant’s second surgeon, made a notation in his medical record that "there was a tear that had been attempted to be repaired and had not healed whatsoever." The Consultant argues that this note described the first repair prior to the injury. However, we have consulted with Doctor B and he clarified that he did not mean that note to indicate the original repair was unsuccessful. He was describing the condition of the knee as he saw it. Clearly at that point the prior repair was torn apart. Doctor B states that given the length of time from the surgery to the new injury and the lack of symptoms after the surgery, he had to assume that the tear was the result of a new injury and not the result of a failed surgery. At the time Doctor B saw the applicant's medial meniscus tear the prior repair was torn apart and any opinion on the prior repair would be speculation. Given the clarification, the Consultant's reliance on Doctor B's post operative description of the prior repair is misplaced The Consultant does support changing the applicant's RE Code to allow him to reenter the military. In support of this the Consultant cites the Department of Defense (DoD) medical standard for entry after knee surgery contained in DoD Instruction 6130.3, Medical Standards for Appointment, Enlistment, or Induction in the Military Services, which states "history of surgical reconstruction of knee ligaments does meet the standard if 12 months have elapsed since reconstruction, and the knee is asymptomatic and stable." This is exactly the standard upon which the applicant entered the Air Force in 2009. It was a year and almost four months from the time of his surgery to his enlistment and the new injury. He was asymptomatic or he would not have been allowed to enlist. The Consultant's argument is just as valid for his enlistment in 2009. Based on Doctor B's clarification and DoDI 6130.3 the appropriate determination is that the applicant entered the Air Force after a successful knee surgery. He then reinjured his knee in BMT. Using the standard in DoDI 6130.3 only for the RE Code analysis and not the initial entry analysis is unjust. Since Doctor B has clarified his original post operative notes the only appropriate determination is that he had a new injury in BMT and should have been referred for disability evaluation vice being discharged under AFI 36-3208. Finally, counsel states that just changing the applicant's RE Code is not a sufficient remedy. He was involuntarily separated from the Air Force almost two and a half years ago. He is now 27 years old and has moved on with his career. Therefore, the only remedy with any real impact is to refer him to the Disability Evaluation System. Counsel’s complete evaluation with attachment, is at Exhibit G. _________________________________________________________________ APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 22 Feb 12 for review and comment within 30 days (Exhibit H). As of this date, this office has not received a response. _________________________________________________________________ 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. The applicant requests that he be processed through the disability evaluation system (DES) or in the alternative, he receive an honorable discharge under Secretarial Authority. The applicant’s counsel asserts the applicant’s knee injury originally suffered in 2008, prior to entry on active duty in 2009 should not be considered as existed prior to service (EPTS) but aggravated by service contending that the applicant entered service under the same standards referenced by the Medical Consultant in support of his recommendation to change the applicant’s reentry code, that is, the applicant was asymptomatic and 12 months had elapsed since the reconstruction of the knee. Even if we concede this point, we are not persuaded the applicant’s condition should not be considered as EPTS. It is well established in the record that the applicant suffered the injury prior to entering service and within only 3 days of entering service suffered problems with the same knee. In our view the preponderance of evidence supports that the injury should be considered EPTS rather than aggravated by military service. Additionally, we are not in agreement with the position of AETC/SGPS or the recommendation of the BCMR Medical Consultant that the applicant’s reentry code should be changed to allow him the opportunity to reenter service. In our view, the applicant’s prior medical history provides a high likelihood the rigors of military service would result in the same outcome. At any rate since the applicant’s counsel indicates they are not seeking reentry, this is a moot point. Regarding his alternative request for an honorable discharge under secretarial authority, as pointed out by DPSOS, Airmen are given entry-level separation/uncharacterized service characterization when separation is initiated in the first 180 days continuous active service. Given the fact the applicant had less than 60 days of total active service, we find no error in his entry level separation. Therefore, we conclude that the applicant has failed to sustain his burden that he has suffered either an error or an injustice. In view of the above and in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application. 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 DETERMINES THAT: The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2010-02151 in Executive Session on 21 Jun 12, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 1 Apr 11, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, HQ AETC/SGPS, dated 15 Jun 11. Exhibit D. Letter, HQ AFPC/DPSOS, dated 25 Oct 11. Exhibit E. Letter, BCMR Medical Consultant, dated 21 Nov 11. Exhibit F. Letter, SAF/MRBC, dated 20 Dec 11. Exhibit G. Letter, Applicant’s Counsel, dated 19 Jan 12, w/atch. Exhibit H. Letter, SAF/MRBC, dated 22 Feb 12.