RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-03709 COUNSEL: HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: 1. He be placed on invitational travel orders to attend a Medical Evaluation Board (MEB) for determining whether he meets retention standards for: diabetes, migraine headaches and a knee injury. 2. His MEB results be forwarded to the Air Force Informal Physical Evaluation Board (IPEB) for disability percentage determination. 3. If retired by the IPEB, his retirement date be set as 1 May 2010. 4. He receive retirement back pay from 1 January 2010 to present. ________________________________________________________________ APPLICANT CONTENDS THAT: He was a reservist and a C-5 flight engineer who was unjustly denied access to and the benefit of the Disability Evaluation System. He sustained three unfitting conditions while on active duty. An MEB was initiated in 2010 and it was improperly handled. AFI 36-3212 provides that a disease or injury incurred by a reservist serving on active duty for more than 30 days shall cause the reservist to remain on active duty until final disposition of his case. On 1 September 2005, while on active duty, the applicant struck his head while on an aircraft. An LOD was initiated on 6 September 2005. On 22 July 2007, he was on active duty orders for more than 30 days and was diagnosed with Diabetes Mellitus. On 12 February 2008, he was grounded from flying when the Line of Duty (LOD) was initiated. He was medically disqualified from aviation on 10 February 2009. On 11 May 2009, an MEB was initiated while he was in Reserve status. He suffered a second head injury in July 2009 which caused migraine headaches. Additionally, in July 2009 while on active duty orders, he injured his knee. The narrative summary completed on 19 January 2010 identified Type II diabetes as the sole unfitting condition. However, the MEB found him fit for duty. His case was treated as a disability arising from medical conditions incurred while he was not on active duty; hence the unfit or fit determination. This is a case where the unfitting condition arose while the applicant was serving on active duty. Accordingly, the IPEB processing was required. A new MEB should be convened and his case should be sent to the IPEB for proper adjudication. In support of his appeal, the applicant provides a legal brief, copies of his DD Form 214, Certificate of Release or Discharge from Active Duty, Certificate of the Board of Inquiry Transcript and other supporting documentation. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant is a master sergeant in the Air Force Reserves. The remaining relevant facts pertaining to this application are contained in the letters prepared by the appropriate office of the Air Force which is are Exhibits B and C. ________________________________________________________________ AIR FORCE EVALUATION: AFRC/SG recommends denial. The member suffered a simple laceration to his left forehead while deployed to Moron Air Base, Spain in September 2005. The laceration was treated and he was grounded for one week while the wound healed. He was subsequently returned to full flying status. An LOD was initiated but never completed. There was no disabling or disqualifying issue; therefore no requirement for a Medical Evaluation Board existed. Notes submitted by the applicant shows he complained of headaches in September 2010, yet there was no mention or service connection to the head laceration injury sustained in 2005. Headaches are not necessarily disqualifying per AFI 48-123. An LOD for mild tri-compartmental osteoarthritis of the knee was completed with a finding of Existed Prior to Service on 30 September 2011. Therefore, he was not eligible for an MEB. The applicant’s medical conditions were managed administratively and no requirement for a MEB existed at the time. He was reviewed and returned to duty in accordance with applicable guidelines. The complete AFRC/SG evaluation is at Exhibit B. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant’s attorney states AFRC has developed a pattern and practice of violating Air Force regulations by taking over disability cases that arose on active duty. The applicant’s diagnosis of diabetes disqualified the applicant from aviation and warranted an MEB. An MEB was completed but not forwarded to the IPEB as required. The applicant’s complete response, with attachment, is at Exhibit C. ________________________________________________________________ ADDITIONAL AIR FORCE ADVISORY: The BCMR Medical Consultant recommends denial. The military Disability Evaluation System (DES) operates under Title 10, United States Code and is charged with maintaining a fit and vital fighting force. Furthermore, it can only, by law, offer compensation for the illness or injury that is the cause for career termination; and then, only to the degree of severity present at the snapshot time of final military disposition. The mere diagnosis of a condition does not automatically warrant an unfit finding, although Type II Diabetes Mellitus is an example of a condition initially determined to be disqualifying for military service. The applicant’s service treatment shows he was diagnosed and treated for knee pain, lumbar pain, and migraine headaches. The clinical evidence does not show his providers implemented duty restrictions of a sufficient level or duration to have warranted an independent basis for referral through the DES, or to justify this request for a delayed reentry to the DES. The requirements for maintaining Flying Class I, II and III standards for certain medical conditions may be more stringent than those for non-flying duties. Although the applicant was prescribed a medication other than that over the counter (disqualifying for flying standards), the evidence does not clearly demonstrate his headaches resulted in frequent absences from duty or unrelieved by treatment (disqualifying for non- flying standards). Similarly, the applicant’s knee pain, subtle but distinguishable differences in retention standards are presented. Severe, manifested by frequent joint effusion, more than moderate interference with function, or with severe residuals from surgery versus, chondramalacia if symptomatic, or there is verified history of joint effusion, indifference with function or residuals from surgery. The less severe symptoms are required to be disqualifying for flying duties. The applicant was a flight engineer and only became disqualified for further flying due to his Diabetes. He was consequently assigned to duties that did not involve flying. That does not automatically qualify the applicant or infer that he was unfit for further military service merely because he was restricted from flying status. Regarding the applicant’s concerns for AFRC’s alleged failure to follow regulatory guidance, the applicant is advised that under innovations implemented under the Deployment Availability Working Group (DAWG), individuals with certain medical conditions who have demonstrated the ability to perform their primary duties, but require a certain defined level of care availability can be retained and issued an Assignment Limitation Code without further DES processing. These decisions are initiated at the level of the individual medical treatment facility and are implemented in coordination with officials at HQ AFPC/DPAMM, Medical Standards Division, or in the case of the Reserve component HQ AFRC/SG. Such individuals are not guaranteed indefinite retention, but must undergo periodic assessments to determine retainability. In this case, HQ AFRC/SG exercised its option to retain the applicant with an ALC-C1, noting the applicant was capable of performing military duties. Based on the available service records, or lack thereof, absence of duty-limiting documents for the applicant’s headaches and knee ailment, and the aforementioned policy statements, the Medical Consultant opines the applicant has not met the burden of proof of an error or injustice that warrants the desired change of record. The complete BCMR Medical Consultant evaluation, with attachments, is at Exhibit E. ________________________________________________________________ APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: The applicant’s counsel responded to the BCMR Medical Consultant. Counsel maintains a medical board was convened while the applicant was in reserve status to review conditions incurred on active duty. Counsel says this board was not within AFRC’s jurisdiction and should have required a referral to the Informal Physical Evaluation Board (IPEB). The applicant was diagnosed with Type II Diabetes and did not meet retention standards. The IPEB had the right to see that document and the applicant had a right to expect the IPEB would see the document. This advisory opinion does not address the regulatory failure and cannot be substituted for a medical board. The advisory opinion as to the applicant’s retention is irrelevant as only a medical board can do that. The applicant’s complete response is at Exhibit G. ________________________________________________________________ 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. We carefully considered the available evidence of record and the applicant’s response to the Air Force advisories; however, we found no indication any of the actions taken with regard to the applicant’s medical treatment and subsequent actions thereof were improper or contrary to the provisions of the governing instructions. 4. AFI 36-3212 allows for a reserve member to be retained in the reserves and returned to duty even though he may have a medical condition that requires some restrictions. According to paragraph 8.16.1 of AFI 36-3212, if an MEB finds the member is fit, he will be returned to his assigned unit or, if his period of duty has expired, he will be sent home. This is the case with the applicant. He was disqualified from flying duties, but was qualified and fit for military duties including deployment (with the restriction that there be a fixed medical treatment nearby). In April 2010, the MEB at the 80th Medical Group (AMC) and the DAWG returned the applicant to duty (and back to AFRC/SG jurisdiction). There are two possible outcomes of an MEB under AFI 36-3212: either (a) return the member to duty, or (b) forward his case to the IPEB. If he is returned to duty, as the applicant was, his case cannot be forwarded to the IPEB. Since the applicant’s diabetes mellitis was well controlled, the MEB properly returned him to duty. The applicant is mistaken that AFRC/SG made an unauthorized decision. The April 15, 2010, letter from AFRC/SG was carrying out, reporting and disposing of the April 9, 2010, findings of the active duty MEB that returned him to duty. 5. Additionally, AFI 48-123 implements AFI 36-3212. Paragraph 1.2 of AFI 48-123 states that a medical examination may serve more than one purpose. Section 5 of AFI 48-123 explains that diabetes mellitis is only potentially disqualifying. Thus, the MEB findings of fitness under 36-3212 are consistent with AFI 48-123, and the applicant was properly returned to duty. There was, and is, no justification or requirement to refer the applicant’s case to the IPEB. Therefore, we agree with AFRC/SG and the BCMR Medical Consultant’s assessment of the case and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice and find no basis to recommend granting the relief sought in this application. 6. 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 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 BCMR Docket Number BC-2011-03709 in Executive Session on 28 June 2012 and on 11 July 2012, under the provisions of AFI 36-2603: The following documentary was considered: Exhibit A. DD Form 149, dtd 29 Aug 11, w/atchs. Exhibit B. Letter, AFRC/SG, undtd. Exhibit C. Letter, SAF/MRBC, dtd 16 Dec 11. Exhibit D. Letter, Applicant’s Response, dtd 13 Jan 12, w/atch. Exhibit E. Letter, BCMR Medical Consultant, dtd 25 May 12, w/atchs. Exhibit F. Letter, SAF/MRBC, dtd 30 May 12. Exhibit G. Letter, Applicant’s Response, dated 27 Jun 12.