RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-05001 COUNSEL: HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: 1. His retirement order be corrected to show he was released from active duty on 15 April 2009, instead of 24 September 2003 and he receive back-pay, bonuses, and accrued leave for entire period. 2. Correct AF Form 356, Findings and Recommended Disposition of USAF Physical Evaluation Board (PEB), dated 9 March 2009 as follows: a. Item 10, Additional Findings, Parts C and D, be corrected respectively to reflect his disability was a result of armed conflict or war and in the line of duty during a period of war and was a direct result of a combat related injury. b. Item 9A, Diagnosis, be corrected to include Depressive Disorder and Post Traumatic Stress Disorder (PTSD) as part of his diagnosis and rating. 3. He be reimbursed for out-of-pocket medical expenses for he and his family incurred during the period from 2003 through 2009. 4. Direct promotion to the grade of Lieutenant Colonel, (O-5). 5. He be eligible to transfer his Post-9/11 GI Bill educational benefits to his dependents. ________________________________________________________________ APPLICANT CONTENDS THAT: 1. His case was mishandled by authorities failing to provide the required orders continuing or placing him retroactively on active duty after a line of duty (LOD) determination revealed that his aircraft crash, subsequent medical condition, treatment and rehabilitation were a continuing linked chain of events leading to his current disability. 2. In a combined 13 page brief of counsel and the applicant’s summary the following contentions are made: a. His initial injury and complaints originated back to 1994, when he was injured in the line of duty, when his aircraft crashed during a combat mission. He was evaluated by a psychiatrist, cleared, and returned to flying status, four months after the aircraft crash, with complaints of back pains. Survivor’s guilt and post-traumatic stress disorder symptoms were noted in this evaluation. b. Squadron flight logs reflect the 1994 mission logged as combat sortie, in a combat zone. Further active duty service during Operation ENDURING FREEDOM also occurred in a combat zone, where every mission flown into Afghanistan was logged as combat time in the log books. However, PEB findings erroneously concluded that: (1) his disability was NOT a result of armed conflict or war and in the line of duty during a period of war (2) his disability was NOT a direct result of a combat related injury. c. A 17 February 2009, Medical Evaluation Board (MEB) summary shows a diagnosis of a history of depressive disorder and post-traumatic stress disorder. These diagnoses are listed as numbers one and two, respectively, of eleven additional diagnoses. Nevertheless, depressive disorder and PTSD were excluded from the PEB diagnoses of unfitting conditions. These conditions need to be included in the diagnoses. d. He was improperly discharged from active duty in September 2003. In spite of repeated verbal and written complaints his unit took no action. Had an MRI, which was ordered in June 2003, been done, his tumor would have been discovered and treated while he was on active duty. As a result of not being continued on active duty and having an MRI, he experienced the following: (1) continued significant increase in symptoms over time to the point that it interfered with his flying abilities at his civilian job. (2) eventually ended up in the care of a civilian neurologist who discovered a spinal tumor thought to be malignant but, during surgery, was discovered to be benign. (3) complicated surgery, followed by a very painful and extended recovery period. (4) loss of his civilian job (5) assumed the financial burden of paying out of pocket medical expenses not covered by his civilian insurance. (6) Failed his annual USAF physical as a result of the extreme post surgery physical debilitation rendering him unable to perform any reserve duties. He was unable to: (a) continue his professional education course (b) take further responsibilities leading to eventual promotion. (c) be competitive for promotion amongst his peers. (d) pursue actions that might lead towards a positive light on his career. (7) As a result of the failed physical he underwent an almost two-year Line of Duty determination process. (8) Underwent MEB and PEB processes which found him to be unfit for further service and led to a recommendation for permanent retirement with a disability compensable rating of 80 percent. e. The LOD determination was found to be “in line of duty” (ILOD) for a condition which existed at the time of his aircraft combat crash in 1994. A letter from his oncologist stated that the tumor was likely present as far back as 1994. Had he been continued on active duty in 2003, the military medical system could have provided evaluation, care and rehabilitation for his condition. He is entitled to be reimbursed for out-of-pocket- medical expenses incurred during the period from 2003 through 2009. f. His career as a commissioned officer was dramatically affected by the mishandling of this situation. He was never placed on active duty orders and consequently was never considered for promotion while on active duty, amongst his active duty peers. Had his situation been handled properly and he were continued on active duty in 2003; and based on his performance and military records; he would likely have been eligible for promotion consideration to the grade of Lieutenant Colonel in the fiscal year (FY) 2004 or 2005 promotion cycles. Therefore, consideration should be given to amend his rank to reflect the logical progression of a 22-year officer to the grade of Lieutenant Colonel. g. He lives with constant pain 24/7, 365 days a year. As a result of the constant pain: (1) He takes round the clock medication to handle the nerve pain. (2) He underwent further surgery to implant a spinal cord stimulator to cope with the pain. (3) He is unable to return to his commercial flying job and not able to hold any other job with routine hours. (4) Most days he handles walking and usually requires a cane/staff later in the day as he gets tired. (5) He lacks feeling in both legs and his waist and as a result, on a routine basis, stumbles while walking. h. These conditions have significantly and permanently affected his life, marriage, relationships, and his perspective on life. During the entire period, neither side; active duty nor reserve personnel, handled his case correctly because of its confusing chronology of events, multiple transitions between active and reserve duty status, unclear paths of responsibility, past medical history and the aircraft crash. In support of his request, the applicant provides his counsel’s brief with attachments. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: According to copies of his DD Form 214s, and documents extracted from his Military Personnel Record (MPR) the applicant is a former commissioned officer of the Regular Air Force and Air Force Reserves. He served in the Regular Air Force from 7 August 1988 through 5 January 1997. He was progressively promoted to the grade of Captain, (O-3), with an Effective Date of Pay Grade of 25 June 1992. He served in the Air Force Reserves from 6 January 1997 until his disability retirement on 16 April 2009. He was progressively promoted to the grade of Major (O4) with an Effective Date of Pay Grade of 1 October 2000. During his reserve service, the applicant completed two active duty tours; from 3 February 1997 through 3 June 1997 and 1 March 2002 through 24 September 2003. On 9 March 2009 an informal PEB convened to review and consider the applicant’s case. The final findings were, 40 percent rating for Neuropathic pain and weakness of right lower extremity, 40 percent for Neuropathic pain and weakness of left lower extremity, 10 percent for Neurogenic bladder with obstructive symptoms and 10 percent for Neurogenic bowel with chronic constipation. The combined compensable rate for the four conditions was 76 percent rounded up to 80 percent. The PEB concluded the applicant was unfit for further service because of physical disability incurred in the line of duty in time of war or national emergency or after 14 September 1978, however, they determined his disability was not a direct result of armed conflict, was not caused by an instrument of war and incurred in the line of duty during a period of war, nor was it a direct result of a combat related injury. The PEB further concluded, although the applicant had a documented history of symptoms of depression and PTSD, there was no medical documentation (narrative summary) stating these were unfitting conditions. On 13 March 2009, the applicant agreed with the findings and recommendation of the informal PEB and waived his right to a formal PEB hearing. Effective 16 April 2009, the applicant was permanently, disability retired in the grade of Major with a compensable percentage for physical disability of 80 percent. He was credited with 10 years, 11 months and 25 days of active service for retirement and 20 years, 11 months and 2 days of service for basic pay. ________________________________________________________________ AIR FORCE EVALUATION: AFMOA/SGHI recommends approval. SGHI states the applicant was never offered medical continuation orders which should have happened after his deployment to Afghanistan which ended on 24 September 2003, even though he still complained of pain in his back. SGHI recommends the applicant’s record be corrected to show that his pay and points did not end on 24 September 2003 but continued until his permanent disability retirement date of 15 April 2009. The complete AFMOA/SGHI evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: In their response, the applicant and his counsel indicate they consider the AFMOA/SGHI recommendation to be positive and agree with the advisory to that extent. However, they further submit, the approval and changes, if accepted by the Board, must go beyond the pay and points corrections recommended. Had the applicant’s case been properly handled in 2003, he would have been afforded time and opportunity to make choices not then properly afforded to him as he was forced to deal with circumstances as they presented themselves. The application submitted specifically, and by implication, contained the following additional requests: 1. All out of pocket medical expenses for the applicant’s service connected disability as well as other routine and normal medical services for the applicant and his family be covered for the time between 2003 and 2009 when he was not on active duty. 2. His records reflect he is eligible to transfer his Post-9/11 GI Bill benefits to his dependents. 3. He receive a direct appointment to the grade of Lieutenant Colonel, O-5. 4. Correct AF Form 356, Findings and Recommended Disposition of USAF Physical Evaluation Board, dated 9 March 2009, to reflect the applicant’s injury occurred in a time of war. These are the additional elements of the application not specifically addressed in the Air Force advisories. The complete response is at Exhibit E. ________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 3. Sufficient relevant evidence has been presented to demonstrate the existence of error or injustice. After considering the totality of the evidence before us, we are persuaded that relief is warranted. In this regard, we note that in accordance with DoDI 1241.2 Reserve members on orders for 30 days or more, who incur a condition in the line of duty which renders them unfit for military duty, will be retained on active duty orders until they are either found fit for duty or separated via the disability evaluation system (DES). In view of this and since the applicant’s 14 March 1994 initial injury, as a result of an aircraft crash, was determined to be ILOD, he should have been retained on active duty on 24 September 2003, until the final disposition of his disability retirement processing occurred. The AFMOA/SGHI recommendation is noted and we believe continuance on active duty orders until such time as his ILOD medical condition was resolved provides full and fitting relief. Therefore, the applicant’s record should be corrected as indicated below. With regard to the applicant’s request for a direct promotion to the rank of lieutenant colonel, we note that officers compete for promotion under the whole person concept whereby a multitude of factors are carefully assessed by the selection board members prior to scoring the record. In addition, they may be qualified but- in the judgment of selection board members vested with discretionary authority to score their records – may not be the best qualified of those available for the limited number of promotion vacancies. Consequently, a direct promotion should be granted only under extraordinary circumstances; i.e., a showing that the officer’s record cannot be reconstructed in such a manner so as to permit him/her to compete for promotion on a fair and equitable basis; a showing that the officer exercised due diligence in pursuing timely and effective relief; lastly, that had the original errors not occurred, the probability of this being selected for promotion would have been extremely high. We do not find these factors in this case. Nevertheless, we are persuaded the constraints of his disability processing, through no fault of the applicant, may have deprived him of full and fair promotion consideration. Therefore, in order to resolve any potential promotion consideration injustice to the applicant, the Board believes he should be considered for promotion to the grade of lieutenant colonel by all appropriate Special Selection Boards. 4. Notwithstanding our determination above, insufficient relevant evidence has been presented to demonstrate the existence of error or injustice with regard to the applicant’s request to correct items 9A and 10 of the AF Form 356, Findings and Recommended Dispositions of the USAF Physical Evaluation Board (PEB) to reflect that his injuries occurred in a time of war. In this respect, we note that although the evidence of record indicates that his injuries were incurred on 14 March 1994, when his C-130 aircraft lost engine power and crashed in the waters off Somalia, we find no evidence the Air Force’s determination this did not occur during a time of war is in error or unjust. We find no evidence of error in this case and after thoroughly reviewing the documentation that has been submitted in support of applicant's appeal, we do not believe he has suffered from an injustice. With respect to the applicant’s request for eligibility to transfer Post 9-11 GI Bill benefits to his dependents; after a thorough review of the evidence of record and applicant's submission, we believe that relief is not warranted. The applicant was retired effective 16 April 2009. However, the Transfer of Educational Benefits (TEB) system did not begin accepting applications until 27 June 2009, with an effective date no earlier than 1 August 2009. Lastly, due to the Board granting the applicant continuance on active duty orders until 15 April 2009, his request for all out-of-pocket medical expenses for the time between 2003 and 2009 is moot, as he will be provided an opportunity to submit such expenses once his records have been corrected. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting this portion of the relief sought in this application. 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 issue(s) 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 APPLICANT be corrected to show that he was not released from active duty on 24 September 2003, but on that date, he was continued on active duty until 15 April 2009. It is further recommended that he be considered for promotion to the grade of Lieutenant Colonel, (O-5) by Special Selection Boards for the Calendar Years, CY04B (12 Jul 04) (P0504B) in-the-promotion zone (IPZ), CY05A (6 Jul 05) (P0505A) above-the-promotion zone (APZ), CY06A (13 Mar 06) (P0506A) APZ, CY06C (28 Nov 06) (P0506C) APZ, CY07B (27 Nov 07) (P0507B) APZ, CY08B (8 Sep 08) (P0508B) APZ, Lieutenant Colonel Line Central Selection Boards. ________________________________________________________________ The following members of the Board considered this application BC- 2011-05001 in Executive Session on 16 October 2012, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 9 December 2011, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFMOA/SGHI, dated 11 June 2012. Exhibit D. Letter, AFBCMR, dated 6 September 2012. Exhibit E. Letter, Counsel, dated 1 October 2012, w/atch.