RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-00254 COUNSEL: HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: 1. She be granted a medical evaluation board (MEB) and be retired for physical disability, instead of being voluntarily transferred to the Individual Ready Reserve (IRR), effective 6 Jun 09. 2. By amendment, she alternatively requests that her records be corrected to reflect that she was found physically disqualified for reserve duty and permitted to apply for transfer to the retired reserve to await retired pay at age 60 in lieu of her voluntary transfer to the IRR. ________________________________________________________________ APPLICANT CONTENDS THAT: She was forced to leave the Air Force Reserve due to her illnesses when she should have been recommended for an MEB due to her shoulder surgery and other medical conditions. However, she was instead labeled a poor performer and threatened with an adverse officer performance report (OPR) if she did not voluntarily request a transfer from the unit. The complications from her shoulder surgery and subsequent hospitalization caused her to miss reserve duty and caused her chronic fatigue, negatively impacting her duty performance. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant’s military personnel records indicate she served in an Air Force Reserve unit as a traditional (part-time) reserve member during the matter under review. On 3 Oct 09, the applicant was issued an AF Form 469, Duty Limiting Condition Report, establishing duty and mobility restrictions which limited her to performing only annual training (AT) and unit training assemblies (UTA) at home station. She was also restricted from running any distance greater than 0.1 miles, pushing or pulling from the body in a repetitive manner, bending at the waist in a repetitive manner, lifting greater than 5 pounds with her right arm, overhead working with her right arm, and immunizations. On 26 Oct 09, the applicant was relieved of her assignment and transferred to the IRR, effective 4 Oct 09. According to information extracted from the military personnel data system (MilPDS), the applicant was credited with a satisfactory year of service with the closeout of her retention/retirement (R/R) year 9 Jun 09 through 8 Jun 10 and attained 15 years of satisfactory reserve service. The Military Disability Evaluation System (DES), can, by law, only offer compensation for and when a service-incurred illness, disease, or injury rendered a member unfit for continued service and was the cause for career termination; and then only for the degree of impairment present at the “snap shot” time of release from military service and not based on future changes or events. In accordance with AFI 36-3212, Ready Reserve members who are medically disqualified for impairments unrelated to the member's military status and performance of duty shall be afforded the opportunity to enter the disability system for a determination of fitness only but shall not be afforded disability benefits. In accordance with Title 10 United States Code (USC), Section 12731b, a member of the Selected Reserve who has completed at least 15, and less than 20, years of qualifying reserve service, who no longer meets the qualifications for membership in the Selected Reserve solely because of physical disability (does not have to be service-incurred), will be eligible for transfer to the reserve retired list to await retired pay at age 60. ________________________________________________________________ AIR FORCE EVALUATION: AFRC/SGP recommends denial of the applicant’s request for a medical evaluation board (MEB) and medical retirement, indicating the applicant’s request for a MEB would require evidence indicating the condition for which she feels she is medically unfit and deserving of a medical retirement was incurred or aggravated in a military status. However, there is no indication the shoulder surgery during which she contracted a bacterial infection occurred in a military status, thus a line of duty (LOD) determination was not required or completed. Without an indication of service connection, the applicant would not be entitled to an MEB and potential medical retirement. The applicant’s petition raises some significant non-medical issues and accusations that are well outside the scope of the Air Force Reserve Command Surgeons Office; however, without any evidence that her medical conditions were incurred or aggravated in the line of duty, retirement for physical disability would be inappropriate. ________________________________________________________________ APPLICANT’S RESPONSE TO AIR FORCE EVALUATION: Counsel agrees that an MEB may not be appropriate in this case; however, he is absolutely certain that the provisions of Title 10 USC 12731b do apply. This provision creates a special rule for reservists with physical disabilities not incurred in the LOD and allows for their retirement if they have attained at least 15 years of service. In the case of a member of the Selected Reserve who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability, the Secretary concerned may, for the purpose of Section 12731 of this title, determine to treat the member as having met the service requirement and provide the member notification required if the member completed at least 15 years, but not less than 20 years of qualifying service for retirement purposes. The evidence clearly indicates the applicant served more than 15 years of qualifying service before transferring to the IRR on 26 Oct 09. The inquiry then becomes whether she was unfit for duty during this 15 year period. In fact she was, but this fact was ignored by her command and appropriate processing for separation due to her un1itting condition was not done. What should have occurred was the referral of applicant for a "Fit for Duty" determination. This determination with a consequent finding of "unfit" would have initiated her separation due to disability not in the line of duty. This in turn would have triggered 10 USC § 12371 and the applicant's age 60 year retirement The applicant reported multiple physical concerns while serving and these conditions rendered her unfit as evidenced by the medical profile issued just before her transfer to the IRR in Oct 09. What is of particular importance in this case is that ARPC determined that she was permanently disqualified due to medical conditions. It is patently clear that before 29 Oct 09, she was unfit for duty, had more than 15 years of qualifying service and should have been separated with 60 year retirement. ARPC fully recognized the unfitting nature of applicant's conditions that existed in 2009 and neither the Air Force nor this Board can properly find that applicant was not entitled to 60 year retirement. A complete copy of Counsel’s response, with attachments is at Exhibit D. ________________________________________________________________ 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 with respect to the applicant’s request for a medical evaluation board (MEB) and retirement for physical disability. We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice with respect to her request for an MEB and disability retirement. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application. 4. Notwithstanding the above, sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice with respect to the applicant’s request that her record be corrected to show that she was physically disqualified and transferred to the retired reserve. In this respect, we note the applicant has provided documentation indicating that she suffered from a variety of non-duty related ailments that apparently limited her ability to perform her military duties over the last several months of service. While we do not find the evidence presented sufficient to conclude that she was somehow coerced into voluntarily transferring from her reserve unit to the individual ready reserve (IRR), we believe that a preponderance of the evidence indicates that her non-duty related ailments should have rendered her disqualified for continued service. In this respect, we note the applicant was issued a duty limiting condition report just prior to her transfer to the IRR that placed her under significant duty and mobility restrictions. Additionally, we note the applicant has provided documentation indicating that shortly after her transfer to the IRR, she was considered for an assignment to another reserve unit, but found physically disqualified for said assignment. Therefore, in view of the above, in the interest of justice, we find it reasonable to conclude that her ailments would have rendered her disqualified for continued service and, in view of the fact she ultimately attained more than 15 years of satisfactory service, should have been allowed to apply for transfer to the retired reserve to await retired pay at age 60 under the provisions of 10 USC 12731b. Therefore, we recommend the applicant’s records be corrected to the extent indicated below. 5. 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 she did not transfer to the Individual Ready Reserve (IRR) on 4 October 2009, but continued to serve in a reserve status until 8 June 2010 and, on that date, was transferred to the retired reserve under the provisions of 10 USC 12731b due to physical disqualification. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2011-00254 in Executive Session on 2 May 13, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 3 Jan 11, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFRC/SGP, dated 24 Mar 11. Exhibit D. Letter, SAF/MRBR, dated 15 Apr 11. Exhibit E. Letter, Counsel, dated 10 Dec 12, w/atchs. Panel Chair