RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-01315 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: He receive a medical retirement from the Air Force Reserve rather than being discharged. _________________________________________________________________ APPLICANT CONTENDS THAT: The discharge officer did not inform him that he qualified for a medical retirement and he feels it to be an injustice. His service-connected disability was aggravated and became worse while serving in the Reserves. He is 70 percent disabled and his records are proof that he qualifies for a medical retirement. A retired reservist informed him in February 2011 that he should have been medically retired; however, he did not realize he could apply or that such procedures existed. He had no choice but to be placed on the Inactive Reserve Status list due to his inability to perform his official duties. In support of his request, the applicant provides a copy of his DD Form 214, Certificate of Release or Discharge from Active Duty, excerpts from his personnel and medical records, a copy of his congressional inquiry package, and a copy of his Statement of Case from the Department of Veterans Affairs (DVA) office. His complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant enlisted into the Regular Air Force on 23 Jun 86. He was transferred to the Air Force Reserve after being discharged on 22 Jun 90. His Reserve Order reflects he voluntarily requested reassignment to the Air Force Reserve Personnel Center (ARPC) Inactive Ready Reserve (IRR) list due to a temporary medical condition. The applicant was honorably discharged from ARPC on 1 Jul 02. Additional relevant facts pertaining to this application are contained in the letters prepared by the appropriate offices of the Air Force. Accordingly, there is no need to recite these facts in this Record of Proceedings. _________________________________________________________________ AIR FORCE EVALUATION: AFRC/SG recommends denial. Though the applicant notes Reserve duties aggravated his condition, there is no evidence in the Reserve orders or medical record that support his claim. SG defers to the Air Force Disability Branch regarding his request for medical retirement. The complete AFRC/SG evaluation is at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant notes inconsistencies with the AFRC/SG evaluation. He explains the following key points in his rebuttal: a. He is requesting a medical retirement from the Air Force Reserve not the Air Force. b. He was told that if he received a VA disability rating of 40 percent or greater he could not continue to serve in the Reserves, until his condition improved. Had he known that he could have stayed in an active status in the Reserve, he would have remained an active reservist. However, the fact is that he was forced to be placed in the Inactive Reserve due to complications with his service connected lower back disability that was caused in part by his duties as an Aircraft Fuel Systems Technician. The applicant points out that SG accurately states, “… according to documentation from the Department of Veterans Affairs that the associated disability originated from his service while on active duty and is service connected.” c. He submits documentation from his medical records to support his claim that his Reserve duties aggravated his injury. d. The SG evaluation states that there was no case file to substantiate his assertion that he was not briefed prior to his (assumed) voluntary separation from the active Reserve in 1997. However, he notes that upon separation from any branch of the military, a documented separation briefing must be performed and kept on file. The fact that his Reserve Order states that he was being reassigned because of a medical condition is substantial evidence to support his claim. The discharge officer did not adhere to the governing DoD instructions during his separation, which constitutes a grave error and injustice. e. He has only been separated from the Reserve since 2002, not over 14 years ago as stated in the AFRC/SG evaluation. f. He submits that his Reserve and DVA medical records clearly document that his condition got worse while serving in the AFR. g. Time should not be a factor, when an error and an injustice have occurred. _________________________________________________________________ ADDITIONAL AIR FORCE EVALUATION: The BCMR Medical Consultant recommends denial. It can only be speculated, at best, that the applicant may have been unable to perform all of the duties of his career field at the time, but that either the condition was not expected to be permanent or did not warrant (or the applicant did not desire) a separation action through the Disability Evaluation System (DES); either as a disqualifying non-duty related condition or as a compensable medical condition under the governing regulation. In this case, there are no line of duty documents, Reserve service treatment records, nor duty-limiting documents to support his claims which determine his fitness for duty or his eligibility for compensation via the DES if found unfit. The Medical Consultant is familiar with policies outlined in the governing regulations, which may help explain the heretofore- undisclosed mysteries in the applicant’s case. Based upon the evidence submitted, it is likely that ARPC did not find the applicant’s back ailment duty-related; this should have otherwise generated a Duty-Limiting Condition notification and a Medical Evaluation Board (MEB) with a possible separation. Even if non- duty related, the applicant would have had the opportunity to appeal his fitness for duty to a Physical Evaluation Board (PEB). Instead, the applicant may have chose (or allegedly “was forced” or “had no choice” but) to enter into the Non-participating Non- obligated Ready Personnel Section (NNRPS). It is noted the applicant submitted medical progress notes from 1989 and 1990 that were not the cause for his separation nor precluded his ultimate acceptance for entry into Reserve status. The Annual Medical assessment of August 1991 shows he certified, to the best of his knowledge, that he had no medical defect, disease, or disability that would disqualify him for full military duty. However, according to the subsequent annual medical assessments, it becomes evident that he had been receiving compensation, likely from the DVA, during this subsequent period. In 1996, the applicant submitted an appeal for an increase in his disability rating (from 20 percent to 40 percent), following which he reportedly was “voluntarily” transferred to NNRRS. The Medical Consultant opines that sufficient evidence has not been provided of a nexus between the applicant’s two episodes of care for back pain during his period of active service and his subsequent reason for transfer to the NNRPS. The complete BCMR Medical Consultant’s evaluation is at Exhibit F. _________________________________________________________________ APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: The applicant responded by submitting several letters of rebuttal. His response to the BCMR Medical Consultant’s evaluation reiterates his originals contentions, specifically noting that it is mandatory that a separation briefing be conducted; this usually starts by completing DD Form 2648, Pre- separation Counseling Checklist. Because of this not happening, he did not know his rights. According to the Veterans Administration Schedule for Rating Disabilities (VASRD), a service-connected disability rating over 30 percent automatically disqualifies you for service in the United States Reserves/Air National Guard. There was no mention to this fact when he was forced to retire [sic] because of these guidelines. This is where the injustice lies, if the AFR had followed proper protocol, this fact would have been documented. His injury was aggravated when he was employed by the AFR. It was impossible for another job-related factor to contribute to the aggravation of his lower back condition. Furthermore, two main critical concerns have been satisfied; 1) the disability rating is beyond the 30 percent, and 2) the fact that he could no longer perform his duties due to the aggravation of his condition. The applicant’s complete submission, with attachments, is at Exhibit H. _________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file. 3. Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice. The applicant is requesting he receive a medical retirement from the Air Force Reserve rather than being discharged. His assertions that he was not informed that he qualified for a medical retirement and that his service-connected disability was aggravated and became worse while serving in the Air Force Reserve was noted. However, other than his own assertions, he has provided no evidence showing his substantial rights were violated, his case was not properly processed, or he was miscounseled in any way. The applicant’s assertions concerning the requested relief have been thoroughly addressed in the opinions prepared by the Air Force office of primary responsibility and by the BCMR Medical Consultant and the applicant has provided no evidence which, in our opinion, successfully refutes their assessments of his case. Therefore, in the absence of evidence to the contrary, we find no basis in which to favorably consider his request. _________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that 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-2011-01315 in Executive Session on 24 Jan 12, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence for Docket Number BC-2011- 01315was considered: Exhibit A. DD Form 149, dated 4 Apr 11, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFRC/SG, dated 27 Jun 11. Exhibit D. Letter, SAF/MRBR, dated 1 Jul 11. Exhibit E. Letter, Applicant, dated 11 Jul 11. Exhibit F. Letter, BCMR Medical Consultant, dated 27 Sep 11. Exhibit G. Letter, AFBCMR, undated. Exhibit H. Letters, Applicant, dated 19 Oct 11, 4 Nov 11, and 11 Nov 11, w/atchs. Panel Chair