RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-01167 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: His regular retirement be changed to a medical retirement. ________________________________________________________________ APPLICANT CONTENDS THAT: Since his conditions were not improving, he was instructed to submit his retirement paperwork. He was unaware that he was supposed to process through a Medical Evaluation Board (MEB) until a master sergeant at the Medical Wing advised him that he "slipped through the cracks" and should have been medically boarded. In support of his request, the applicant provides copies of his separation documents, Department of Veterans Affairs (DVA) Rating Decision and various other documents associated with his request. His complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: On 20 Sep 2011, the applicant was relieved from his current assignment and transferred to the Reserve Retired List, eligible for Reserve retired pay at age 60 under Title 10, U.S.C. § 12731. According to the 28 Feb 2013, DVA Rating decision provided by the applicant, the DVA granted him a 90 percent rating for his service connected disabilities. The remaining relevant facts pertaining to this application are contained in the letters prepared by the appropriate offices of the Air Force and the BCMR Medical Consultant at Exhibits C, E and H. ________________________________________________________________ AIR FORCE EVALUATION: NGB/SGPA recommends denial. SGPA states that the applicant was discharged with a physical disqualification. It is unclear how he could receive this type of discharge without being referred to the Disability Evaluation System (DES) and to be found unfit for military duties. The only medical documentation submitted was his DVA compensation form showing his medical conditions and the percentages awarded for each condition. There are no other documents to substantiate his request. The complete SGPA evaluation is at Exhibit C. The BCMR Medical Consultant regrettably recommends denial. The fact that the applicant was released under the provisions of AFI 36-3209, Separation and Retirement Procedures for Air National Guard and Air Force Reserve Members, means that the medical condition that resulted in his Physical Disqualification was either determined not in line of duty or not permanently aggravated through military service. The fact that the DVA has apparently found a number of medical conditions service connected and assigned disability ratings is neither determinative of the applicant's fitness to serve nor the reason for his release from military service; as the mere existence of certain medical conditions is not automatically determinative of a member's unfitness to serve. Thus, it is also entirely possible that the applicant was released due to a medical condition that is not listed among those for which he received service connection by the DVA. Addressing the applicant's desire for a medical retirement, the military DES, established to maintain a fit and vital fighting force, can by law, under Title 10, U.S.C only offer compensation for those service incurred [in line of duty or permanently aggravated] diseases or injuries which specifically rendered a member unfit for continued active service by a Physical Evaluation Board and were the cause for career termination. On the other hand, operating under a different set of laws (Title 38, U.S.C.), with a different purpose, the DVA 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, or the narrative reason for release from service. This is the reason why an individual can be released from military service for one reason and yet sometime thereafter receive compensation ratings from the DVA for service connected, but not militarily unfitting conditions. No service medical documentation (Duty-Limiting Condition Reports, Physical Profile Serial Reports, commander's performance assessment, line of duty documents, medical progress notes and summaries) has been provided upon which to make a reasoned analysis of the existence of possible error or injustice in the applicant's release from military service, under the provisions of AFI 36-3209. Thus, there is presumption of regularity on the part of the Air Force in processing the applicant's release from service and transfer to the Retired Reserve List. The complete Medical Consultant’s evaluation is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: He had a total hip replacement on 4 May 2013 and was unable to reply to the BCMR advisory prior to the suspense date. In further support of his appeal, he provides additional supporting documents. The applicant’s complete response, with attachments, is at Exhibit F. ________________________________________________________________ ADDITIONAL AIR FORCE EVALUATION: The BCMR Medical Consultant again, regrettably recommends denial. The Medical Consultant's objective is not to deprive the applicant of a benefit that he deserves or earns. However, certain milestones must be met in order to validate his eligibility for the disability/medical retirement he desires. Most important of all qualifying criteria for the Reserve component is whether the medical condition that cut short the applicant’s career was found in line of duty, or if performing duty of 30 days or less whether the condition was incurred or permanently aggravated as a proximate result of performing military duties. The DVA, operating under a different set of laws, establishes service connection and disability compensation for any medical condition determined by this body to have been incurred during a previous period of military service; and without regard to the narrative reason for release from service or fitness for continued service. Aside from the "labral tear" noted on the applicant's left hip MR arthrogram, which connotes occurrence of some type of injury, the degenerative changes noted on the applicant's hips, shoulder, and knee X-rays were likely the result of the expected natural progression of the aging process and not the result of a specific traumatic event or permanent aggravation though the performance of duty. Absent evidence of permanent service aggravation of the applicant’s condition for which he was found disqualified, absent a finding of in line of duty for his disqualifying condition, and absent evidence he was serving a period of 31 days or more at the time of disqualification, the applicant has not met the burden of proof of error or injustice that warrants the desired change of the record. The complete Medical Consultant’s evaluation is at Exhibit H. ________________________________________________________________ APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: The permanent aggravation of his injuries occurred while he was deployed to Kirkuk, Iraq. He also refutes some of the facts from the advisory. He was never a member of the Coast Guard, but was a civilian employee for the Coast Guard. He was an active duty member of the Marine Corps (1988-1992), Marine Reserves (1992-1993) and the Army (1993-1996). He was then an Alaska Army Guardsman from 1996 to 1998 and finally an Air Guardsman from 1998 to 2012. The injury to his hip and knees occurred during his tour in Kirkuk Iraq from 2004-2005. He was performing afterhours refueling when two rocket propelled grenades were shot overhead. He immediately jumped off the tanks to seek shelter. Although he was in pain and bruised he never sought medical attention because he was able to keep working. There is also relevant information he does not have access to; specifically the first time he failed his fitness test in almost 20 years of service was due to his injury. In 2009, he was stretching and warming up for his fitness test when he felt a pop in his joint. It was extremely uncomfortable, yet he attempted to perform the run. He was unable to finish the run and subsequently failed the fitness test. From that point forward his injuries became significantly worse. He was not provided direction or leadership on how to properly document his injuries and did not seek medical advice until 2011. It was at the end of his career that he was finally encouraged to obtain the AF Form 469, Duty Limiting Condition Report. The applicant’s complete response, with attachments, is at Exhibit F. ________________________________________________________________ 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 error or injustice. We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinions and recommendations Air Force office of primary responsibility and the BCMR Medical Consultant and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice. While the applicant’s response to the evaluations is noted, other than his uncorroborated assertions, he has not provided any evidence which in our opinion, successfully refutes the assessment of his case by the aforementioned evaluations. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application. ________________________________________________________________ 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 this application in Executive Session on 11 Feb 2014, under the provisions of AFI 36-2603: , Panel Chair , Member , Member All members voted to correct the record as recommended. The following documentary evidence was considered in AFBCMR BC-2013- 01167: Exhibit A. DD Form 149, dated 28 Feb 2013, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, NGB/SGPA, dated 7 May 2013 Exhibit D. Letter, SAF/MRBR, dated 19 May 2013 Exhibit E. Letter, BCMR Medical Consultant, dated 21 May 2013 Exhibit F. Letter, SAF/MRBC, dated 21 May 2013. Exhibit G. Letter, Applicant, dated 24 Jun 2013, w/atchs. Exhibit H. Letter, BCMR Medical Consultant, dated 3 Jan 2013 [sic]. Exhibit I. Letter, SAF/MRBC, undated Exhibit J. Letter, Applicant, dated 8 Jan 2014, w/atchs. Panel Chair