RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-05065 COUNSEL: HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: His administrative discharge be changed to a medical separation or retirement. ________________________________________________________________ APPLICANT CONTENDS THAT: 1. His administrative separation for failure to meet minimum fitness standards was unjust. The knee injury he suffered in Iraq in 2004 was the cause of his Fitness Assessment (FA) failures because it indirectly caused unwanted weight gain. By amendment, he was also diagnosed with Obstructive Sleep Apnea (OSA) and depression, and the medication he was prescribed caused excessive weight gain. 2. His combined disability rating from The Department of Veteran Affairs (DVA) of 80 percent warrants a medical retirement. In accordance with Title 38, Code of Federal Regulations (CFR), any disability percentage greater than 30 percent qualifies for a medical retirement. His Patellarfemoral Syndrome in his right knee was only rated at 10 percent by the Air Force, while the DVA rated him at 60 percent for these conditions alone. The applicant’s complete submission, with attachments, is at Exhibit A. _________________ ______________________________________________ STATEMENT OF FACTS: The applicant served in the grade of Staff Sergeant (E-5) during the period in question. The applicant’s last five FA results are as follows: Date Composite Score Rating 10 May 11 52.75 Unsatisfactory 5 Jan 11 27.67 Unsatisfactory* 6 Aug 10 46.60 Unsatisfactory 18 Feb 10 76.25 Good 6 Oct 09 60.60 Poor *Rescored after the applicant failed the AC portion. In accordance with (IAW) AFI 36-2905, Fitness Program, AF Guidance Memo 2, Paragraph 15, commanders shall make a discharge or retention recommendation to the Installation Commander when an individual receives four Unsatisfactory FA scores in a 24-month period. IAW AFI 36-3208, Administrative Separation of Airmen, paragraph 5.26.6., Airmen who fail to meet minimum standards for fitness for reasons amounting to disability may be discharged. On 7 Jun 11, the applicant’s commander notified him he was recommending him for administrative discharge for failure to meet minimum fitness standards, and notified him of his right to an administrative discharge board, legal counsel, and to submit statements in his own behalf. IAW AFI 36-3208, paragraph 6.35, members who have served more than 16, but less than 20 years of creditable active service, are entitled to request special consideration for Lengthy Service Probation (LSP). On 6 Jul 11, the applicant waived his right to present his case to an administrative discharge board, but requested LSP consideration. On 15 Aug 11, the discharge authority denied the applicant’s request for LSP, and directed he be discharged. The case file was reviewed and determined to be legally sufficient. On 1 Nov 11, the applicant was Honorably discharged, and issued a Narrative Reason for Separation of “Physical Standards,” and was credited with 17 years and 6 days of active service. The remaining relevant facts pertaining to this application are described in the letters prepared by the Air Force offices of primary responsibility, which are attached at Exhibits C and F. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSOR recommends denial indicating there is no evidence of an error or an injustice with respect to the applicant’s discharge. The applicant did not submit any evidence or identify any errors or injustices which occurred in the discharge process. The applicant received counseling on several occasions and was afforded ample opportunity to overcome his deficiencies. Based on the documentation of file in the master personnel records, the discharge, to include the characterization of service, was consistent with the procedural and substantive requirements of the discharge instruction and was within the discretion of the discharge authority. There was no error or injustice in the processing of the discharge action. A complete copy of the AFPC/DPSOR evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant had a critical knee injury, sustained during his combat deployment to Iraq in Jul 04, that should be taken into account. Although injured, he continued to support the mission as both a gunner and driver, climbing in an out of make-shift gun boxes in full body armor and ammo weighing approximately 40 pounds. Upon return from his deployment, the aerobic portion of the FA transitioned from cycle ergometry to running. As he attempted to get into shape, running was very painful. His medical profiles limited his physical ability causing unwanted weight gain. Additionally, he was diagnosed with OSA and depression. According to The National Library of Medicine, the medications he was prescribed, primarily Quetiapine, cause “excessive weight gain.” Admittedly, he simply gave up on the last two FAs because mentally he could no longer take it. At the end of the day, with no leadership support, he could no longer perform his duties as a Noncommissioned Officer (Exhibit E). ________________________________________________________________ ADDITIONAL AIR FORCE EVALUATION: The BCMR medical consultant recommends denial indicating there was no error or injustice. The applicant does not meet the criteria for a medical separation. The applicant contends that his knee injury was the cause of his FA failures. The applicant underwent a Medical Evaluation Board prior to his separation, which found the applicant fit for duty, and worldwide qualified to deploy to installations with fixed Medical Treatment Facilities (MTFs). Concerning the applicant’s contention his knee injury ultimately caused his FA failures, on 14 Jan 11, an examining physician wrote in this records, “the applicant did suffer a medical condition that would preclude one from certain aspects of exercise to include high impact exercising; however, the applicant did not suffer from a medical condition that would preclude him from dieting or performing extra conditioning.” Unfortunately, the applicant’s FA failures appear centered around his waist circumference. The applicant received counseling on several occasions and was afforded ample opportunity to overcome his deficiencies. There was no error or injustice in the processing of the discharge action. Concerning the applicant’s contention his 80 percent disability rating from the DVA qualifies him for a medical retirement, the DVA, operating under a different set of laws (Title 38, U.S.C.), with a different purpose, is authorized to offer compensation for any medical condition determined service incurred, without regard to [and independent of] its demonstrated or proven impact upon a service member’s retainability, fitness to serve, narrative reason for separation, or the intervening or transpired period since the date of separation. With this in mind, Title 38 was written to allow awarding compensation ratings for conditions that were not unfitting for military service at the time of separation. This is the reason why an individual can be found fit for release from military service and yet sometime thereafter receive a compensation rating from the DVA for service-connected, but militarily non-unfitting conditions. Concerning the applicant’s request for a medical separation, the Department of Defense (DoD) Disability Evaluation System can, by law, only offer compensation for those service incurred diseases or injuries which specifically rendered a member unfit for continued active service and were the cause of career termination. The MEB found the applicant fit for duty. The applicant did not have a medical condition which would have prevented him from reasonably performing the duties of his office, grade, rank or rating. The applicant has not met the burden of proof of an error or injustice which warrants the desired change of the record. A complete copy of the BCMR Medical Consultant evaluation is at Exhibit F. ________________________________________________________________ APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: He submitted a complete copy of his medical records and all relevant AF Form 422s and AF Form 469s, and asked that the Board note his knee problems began in 2005. In addition, he does not know how long he suffered with OSA. This, coupled with his administrative procedures, Medical Board, physical therapy, mistreatment by his chain of command, and the fact that he suffered from severe major depression and was on several medications, all contributed to his inability to lose weight and pass this FA (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 an error or injustice. We took notice of the applicant’s complete submission, to include his rebuttal responses to the advisory opinions rendered in his case, in judging the merits of this case; however, we agree with the opinions and recommendations of the AFBCMR Medical Consultant and Air Force office of primary responsibility (OPR) and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice. While it is clear the applicant sustained injuries that precluded him from participating in all components of the fitness assessments, other than his own assertions, he has presented no evidence which would lead us to believe that competent medical authority should have determined he was exempt from the waist measurement component of the failed fitness assessments which formed the basis of his administrative discharge. While the Department of Veterans Affairs (DVA) saw fit to award the applicant compensation for his service connected disabilities, said conditions were not the cause of the termination of his military career as he was found fit for duty and we do not find the evidence presented sufficient to conclude that he should have instead been found unfit. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the relief. 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-2012-05065 in Executive Session on 8 Aug 13, under the provisions of AFI 36-2603: Panel Chair Member Member The following documentary evidence pertaining to AFBCMR Docket Number BC-2012-05065 was considered: Exhibit A. DD Form 149, 18 Oct 12, w/atchs. Exhibit B. Applicant's Master Personnel Records Exhibit C. Letter, AFPC/DPSOR, dated 25 Feb 13. Exhibit D. Letter, SAF/MRBR, dated 8 Mar 13. Exhibit E. Letter, Applicant, dated 4 Apr 13. Exhibit F. Letter, BCMR Medical Advisory, dated 24 Jun 13. Exhibit G. Letter, AFBCMR, dated 1 Jul 13. Exhibit H. Letter, Applicant, dated 25 Jul 13, w/atchs. Panel Chair